Smt. Sarika Jain vs State Of U.P.& 5 Ors.
2017 Latest Caselaw 6489 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 

 
Case :- WRIT - A No. - 57911 of 2013
 

 
Petitioner :- Smt. Sarika Jain
 
Respondent :- State Of U.P.& 5 Ors.
 
Counsel for Petitioner :- Amit Krishan,P.N.Saxena
 
Counsel for Respondent :- C.S.C.,Sukram Pal,Vinod Kumar Singh
 

 
Hon'ble Surya Prakash Kesarwani,J.

1- Heard Sri P.N. Saxena, learned Senior Advocate assisted by Sri Amit Krishan for the petitioner, Sri Mohan Srivastava, learned Standing Counsel for respondent nos. 1 to 5 and Sri Vinod Kumar Singh, learned counsel for respondent no.7 (Senior Most Teacher). No one appears on behalf of respondent no.6 even in the revised call.

Facts

2- Briefly stated facts of the present case, are that a substantive vacancy occurred in the respondent no.6 institution on 20.6.2011 due to retirement of the Principal Smt. Sudesh Kakkar. Therefore, a letter dated 28.8.2011 was sent by the Committee of Management to the concerned authority for permission to fill up the vacancy. The authority concerned granted permission vide letter dated 27.7.2012. Consequent thereto an advertisement dated 6.8.2011 was published in two newspapers and a copy thereof was forwarded to the Regional Deputy Director of Education. However, certain discrepancies were found in the said advertisement and as such the Regional Deputy director of Education directed for an advertisement afresh. The Committee of Management issued a fresh advertisement which was published on 30.10.2012. Copy of the said advertisement was sent by the respondent no.6 to the concerned authority by letter dated 31.10.2012 requesting for appointment of an expert panel. By letter dated 19.11.2012, the competent authority appointed an expert panel and and communicated it to the respondent no.6. Thereafter, interview was held on 16.12.2012 in which the petitioner was selected by letter dated 17.12.2012 and the selection papers were sent for approval to the Regional Deputy Director of Education in view of the provisions of Section 16-FF of the U.P. Intermediate Education Act,1921; ( hereinafter referred to as the 'Act') read with Regulation 17(g) framed thereunder.

3- Since, approval was not communicated by the Regional Deputy Director of Education to the respondent no.6 and as such the respondent no.6 assumed deemed approval to the selection of the petitioner on account of expiry of 30 days; as provided under Regulation 17(g). He issued a letter of appointment dated 22.4.2013 to the petitioner appointing her as Principal of the institution. The petitioner joined on the post of Principal on 24.4.2013. Thereafter, the Regional Deputy Director of Education issued a letter dated 3.5.2013 disapproving appointment of the petitioner as Principal of the institution.

4- Aggrieved with the disapproval, the petitioner filed Writ-A No.27757 of 2013 ( Smt. Sarika Jain v. State of U.P. and others), which was allowed by this Court by order dated 17.5.2013 and the order/letter dated 3.5.2013 was quashed observing as under:

"Having heard learned counsel for the parties it is clear that the impugned order has been passed without notice or opportunity and is, therefore, in violation of principles of natural justice. Consequently, the order dated 3rd of May, 2013 is a nullity.

Apart from this, the question of deemed approval should also have been taken into consideration keeping in view the clear statutory provisions in this regard contained in Section 16 FF of the 1921 Act read with Chapter 2 Regulation 17 thereof. In such circumstances, the impugned order cannot be sustained on these two grounds. Even on the merits of the claim had the Joint Director of Education given an opportunity, the same could have been explained either by the petitioner or by the the documents to counter the allegation of deficiency of the qualifications. The Joint Director of Education having failed to give any opportunity has committed a manifest error by passing the impugned order.

The writ petition is allowed.

The order dated 3rd May, 2013 is quashed. The respondent, Joint Director of Education is directed to pass a fresh order in the light of the observations made above within six weeks of the date of presentation of a certified copy of this order."

5- In compliance to the afore-quoted order of this Court, the Joint Director of Education, Saharanpur Region, Saharanpur, passed the impugned order dated 10.10.2013.

6- Aggrieved with this order, the petitioner has filed the present writ petition.

Submissions

7- Shri P.N. Saxena, learned Senior Advocate submits as under :

(i) In view of the provisions of Regulation17(g) framed under Section 16-FF of the Act, neither the Regional Deputy Director of Education nor the Joint Director of Education have any jurisdiction to pass an order of disapproval after expiry of 30 days. In other words there was a deemed approval under Regulation 17(g) and, therefore, the aforesaid authority lacked jurisdiction to pass an order of disapproval to the selection of the petitioner;

(ii) The petitioner possesses the required minimum qualification, as provided in Appendix-A under Regulation-1 of Chapter 2 framed under the Act. The petitioner possesses experience of teaching from Class- IX to XII for more than four years and, therefore, her teaching experience cannot be questioned in the absence of any adverse material on record. The teaching experience certificate of the petitioner was duly counter-signed by the Principal of the concerned institution and, therefore, the objection in the impugned order that the teaching experience certificate does not bear signature of competent authority, is wholly baseless. The authority of the principal of the institution, who certified and counter signed the teaching experience certificate has not been questioned in the impugned order. In the impugned order objection has been taken that the petitioner was teaching mainly Arts subjects for which she was not having qualification, is wholly misconceived and perverse, inasmuch as, as per facts noted in the impugned order, the petitioner was also teaching English subject for which she was competent and qualified as she has Master Degree in English.

(iii) Alternative remedy as provided under Section 16-FF(5) of the Act, is not attracted in the present set of facts, inasmuch as "aggrieved person" is the petitioner whose selection and appointment has been disapproved by the authority.

8- Learned standing counsel supports the impugned order.

9- Sri V.K. Singh,learned counsel for respondent no.7 submits as under:

(i) In view of the provisions of Section 16-FF (3/4) of the Act, the authority concerned was having jurisdiction to pass the order of disapproval. The provisions of Regulation 17(g) of the Regulation is not relevant on the facts of the present case;

(ii) The Regional Joint Director of Education is competent to disapprove the selection of a candidate, if such a candidate does not possess minimum prescribed qualification and is also not otherwise eligible. In such a case, deemed approval as provided in Regulation 17(g) of the Regulation shall not be attracted;

(iii) As per relieving certificate filed as Annexuxre-21 to the writ petition, issued by "Kund Kund Jain Inter College, Khatauli (Muzaffarnagar)," the petitioner had worked in that institution as a permanent Assistant Teacher w.e.f. 21.5.2007 to 24.4.2013 and, therefore, she cannot be said to have teaching experience to teach in Class-XI and XII. Since, the petitioner was not having four years teaching experience to teach Class-XI and XII, and therefore, she lacked minimum prescribed qualification, as provided in Appendix-A.Therefore,the impugned order of disapproval does not suffer from any error of law or fact.

Discussion and Findings:

10- I have carefully considered the submissions of the learned counsel for the parties and perused the record.

11-With the consent of the learned counsel for the parties two questions are being framed for determination as under :

"(i) Whether under the facts and circumstances of the case, there was a deemed approval on expiry of 30 days, as provided under Regulation 17(g) of the Regulations framed under Section 16-FF of the Act ?

(ii) Whether the petitioner possesses the minimum prescribed qualification, as provided under Section 16-FF of the Act, read with Appendix-A ?"

12- Undisputedly, the respondent no.6 institution is a minority institution. Therefore, the provisions of Section 16-FF of the Act, are not applicable to it.

Question No.1

(a) Whether under the facts and circumstances of the case, there was a deemed approval on expiry of 30 days,as provided under Regulation 17(g) of the Regulations framed under Section 16-FF of the Act ?

13-To determine this question it would be appropriate to consider the provisions of Section 16-FF (3/4) of the Act, and the provisions of Regulation 17(g) of the Regulations, which are reproduced below:

"16FF. Minority savings as to minority institutions.-(1) Notwithstanding anything in sub-section (4) of Section 16-E, and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management :

Provided that one of the members of the Selection Committee shall, -

(a) in the case of appointment of the Head of an Institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director;

(b) in the case of appointment of a teacher, be the Head of the Institution concerned.

(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.

(3) No person selected under this section shall be appointed, unless, -

(a) in the case of the Head of an Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and

(b) in the case of a teacher such proposal has been approved by the Inspector.

(4) The Regional Deputy Director of Education or the Inspector, as the case may be,shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualifications prescribed and is otherwise eligible."

"Regulation-17(g)-fdlh in ds fy, leLr vH;fFkZ;ksa dk lk{kkRdkj dj fy, tkus ds i'pkr~ p;u lfefr dk lHkkifr fd;s x;s p;u dh dk;Zokfg;ksa ij nks izfr;ksa esa ,d fVIi.kh rS;kj djk;sxk ftlesa pqus x;s vH;FkhZ dk uke rFkk izrh{kk lwph ds nks vU; vH;fFkZ;ksa ds uke mfYyf[kr fd;s tk;saxs] bl izdkj rS;kj dh xbZ fVIi.kh ij p;u lfefr ds lHkkifr rFkk vU; lnL; gLrk{kj djsaxs vkSj viuk viuk iw.kZ uke] in uke vkSj irk rFkk fnukad mfYyf[kr djsaxs] lHkkifr bl fVIi.kh dh ,d izfr rFkk fofu;e 10 ds [k.M ¼p½ esa fufnZ"V fooj.k dh ,d izfr /kkjk 16&pp ds v/khu ;Fkk visf{kr vuqeksnu ds fy;s ;FkkfLFkfr laHkkxh; mi&f'k{kk funs'kd ;k fujh{kd dks rqjUr vxzlkfjr djsxk] lEcfU/kr vfHkys[kksa ds izkIr gksus ds fnukad ds ,d ekg ds Hkhrj ;FkkfLFkfr lEHkkxh; mi f'k{kk funs'kd ;k fujh{kd] mu ij viuk fu.kZ; ns nsaxs vkSj ,slk u djus ij vuqeksnu iznku dj fn;k x;k le>k tk;sxkA "

15- As per aforesaid quoted provisions of Section 16-FF (3) of the Act, no person selected under this section 16-FF shall be appointed, unless -in the case of the Head of an Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and in case of a teacher such proposal has been approved by the Inspector. Thus, a selected person under Section 16-FF of the Act, can be appointed, in case of Head of the institution; only if the proposal of his appointment has been approved by the Deputy Director of Education. In case of a teacher the appointment shall be made only if the proposal for appointment has been approved by the Inspector. Sub-section (4) of Section 16-FF provides that the Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for selection made under this section where the person selected possesses the minimum qualifications prescribed and is otherwise eligible. This follows that the Regional Deputy Director of Education or the Inspector shall grant the approval for the selection under Section 16-FF of the Act, where the person selected possesses the minimum prescribed qualification and is otherwise eligible. Regulation 17(g) has to be read in the aid of Sub-section (4) and not in conflict with that. Therefore, the interpretation of Regulation 17(g) would be that where the selected person possesses the minimum qualification and is otherwise eligible then the Regional Deputy Director of education or the Inspector, as the case may be, shall grant approval within 30 days and if no decision to grant approval is taken within 30 days, then the approval shall be deemed to have been granted.

16- In case, the person selected either for the post of Head of the institution or for the post of teacher, does not possess the minimum prescribed qualification and is not eligible then the provision of deemed approval under Regulation 17(g) shall not be attracted. In such a case, the Regional Deputy Director of Education or the Inspector, as the case may be, may pass order of disapproval even after expiry of 30 days.

16-Question No.2

(b) Whether the petitioner possesses the minimum prescribed qualification, as provided under Section 16-FF of the Act, read with Appendix-A ?

17- The minimum prescribed qualification in the case of Head of the Institution has been provided in Appendix-A which is reproduced below :

" APPENDIX-A

(In reference to Regulation 1 of Chapter 2)

Minimum Qualifications for Appointment of Head Master and Teachers in Private Recognised Higher Secondary Schools

1. Degree and diploma in the concerned subject of any University established or regulated by or under any Central Act, Provincial Act or State Act which is considered to be a university under Section 3 of University Grant Commission Act, 1956 or of any such institution especially empowered by any Act of Parliament shall be recognised for the purpose of minimum qualifications prescribed under it.

2. Under it in reference to prescribed qualifications the word "trained" means post-graduate training qualification such as, L.T., B.T., B.Ed. S.C. or M.Ed of any university or institution as specified in earlier para or any equivalent (Degree or Diploma). It also includes departmental AT.C. and C.T.with minimum teaching experience of five years J.T.C./B.T.C. grade teacher shall also be considered to be C.T. If he has worked in C.T. grade at least for five years.

1. Head of the institution (1) Trained M.A. Or M.Sc. Or M.Com. Or M.Sc.(Agri) or any equivalent post-graduate or any other degree which is awarded by corporate body specified in above-mentioned para one and should have at least teaching experience of four years in classes 9 to 12 in any training institute or in any institution or University specified in above-mentioned para one or in any degree college affiliated to such University or institution, recognised by Board or any institution affiliated from Boards of other States or such other institutions whose examinations are recognised by the Board, or should the condition is also that he/she should not be below 30 years of age.

Or

Minimum 30 years

(2) First or second class post-graduate degree alson giwth teaching experience of ten years in Intermediate classes of any recognised institutions or third class post-graduate degree with teaching experience of fifteen years,

Or

(3) Trained post-graduate diploma-holder in science. The condition is that he has passed this diploma course in first or second class and have efficiently worked for 15 or 20 years respectively after passing such diploma course.

Notes- (1) Assistant teachers having at least second class post-graduate degree and specialised teaching experience of ten years in Intermediate classes of a recognised institution may be exempted from training qualifications, (as per the provisions contained in the Act.)

(2) Teaching experience includes teaching prior to or after teaching or both."

18- Undisputedly, the petitioner possesses educational qualification being B.A.(Economics, English, Political Science), M.A. (English), M.A. (Economics) and B.Ed. She passed her B.A.examination in the year 1993. Thus, the petitioner possesses the minimum prescribed educational qualification for head of the institution i.e. Principal.

19- The objection of the respondents with respect to lack of teaching experience of the petitioner of four years in Class IX to XII, cannot be accepted on the facts of the present case. Undisputedly, the petitioner was teaching in "Kund Kund Jain College, Khatauli, Muzaffarnagar", as a permanent assistant teacher since 21.5.2007 till 24.4.2013, which has been certified by the Principal of the said institution. It was also certified by the Principal of the institution that she was also teaching Art and English subject in Class-XI and XII since the date of her appointment. The fact that she was teaching English subject in Class IX to XII, has not been disputed by the respondents. The ground of disapproval of the proposal of the petitioner, as mentioned in the impugned order is that she mainly taught Art subject. The facts as noted in the impugned order itself reveals that she also taught English subject in Class XII and XII. That being so it cannot be said to be a disqualification of the petitioner, if she was teaching another subject in addition to English subject in Classes XI and XII. Thus, from the record it is evident that the petitioner was having teaching experience of four years in Classes IX to XII in "Kund Kund Jain Inter College, Khatauli, Muzaffarnagar", which is a recognised minority institution.

20- The discussions made above, leads to an irresistible conclusion that the petitioner possesses the minimum prescribed qualification as well as the teaching experience, as provided in Section16-FF read with Appendix-A. Consequently, the impugned order dated 10.10. 2013 and disapproval cannot be sustained and deserve to be quashed.

21- In view of the aforesaid, the order of disapproval passed by the concerned authority, cannot be sustained. Consequently, the order dated 10.10.2013 passed by the Joint Director of Education, Saharanpur Region, Saharanpur, is hereby quashed. The appointment of the petitioner is held to be valid.

22- The writ petition is allowed. However, there shall be no order as to costs.

Order Date :- 8.11.2017

Ak/