Prem Kishor Sharma vs U.P.Secondary Education ...
2019 Latest Caselaw 5048 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on  31.01.2019
 
Delivered on 27.05.2019
 
Court No. - 34
 

 
Case :- WRIT - A No. - 36881 of 2000
 
Petitioner :- Prem Kishor Sharma
 
Respondent :- U.P. Secondary Education Services Selection Board and others
 
Counsel for Petitioner :- Hritudhwaj Pratap Sahi, Kuldeep Saxena, S.A. Gilani, Sanjay Singh, Vijay Kumar Singh
 
Counsel for Respondent :- C.S.C., Anshul Pathak, Gulrez Khan, Javed Husain Khan, Rahul Singh Dahiya, S.P. Singh, Vinod Sinha
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri V.K. Singh, Advocate, for petitioner and Sri Gulrez Khan, Advocate, for respondents.

2. This writ petition has been filed by sole petitioner, Prem Kishore Sharma, praying for a writ of certiorari, quashing order dated 09.08.2000 (Annexure-29 to writ petition) passed by Chairman, U.P. Secondary Education Services Selection Board, Allahabad (hereinafter referred to as "UPSESSB") holding that selection of petitioner on the post of Principal and allotment of Amar Singh Inter College, Lakhawati, District Bulandshahar (hereinafter referred to as "College") was not according to Rules, hence invalid and petitioner's appointment should have been made in some other Institution, as per Rules of UPSESSB.

3. Facts, in brief, giving rise to present dispute are that College is an institution recognized by Board of High School and Intermediate, U.P. (hereinafter referred to as "U.P. Board") and is governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). For the purposes of recruitment of Teachers, provisions of U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as "Act, 1982") are applicable. With respect to payment of salary of teaching and non teaching staff of the College, it is governed by U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act, 1971").

4. Sri Jagat Singh Sirohi, the then Principal of College, after attaining the age of superannuation and completion of session, retired on 30.06.1989. It caused a substantive vacancy on the post of Principal in the College, with effect from 01.07.1989. Sri Kehar Singh, senior most Teacher was given promotion as ad-hoc Principal till regularly selected candidate recommended by UPSESSB is made available. Sri Kehar Singh also retired on 30.06.1990 whereafter next senior most Teacher was given ad hoc promotion.

5. In the meantime, Management of College sent requisition of vacancy of Principal to District Inspector of Schools, Bulandshahar (hereinafter referred to as "DIOS") so that recruitment may be made by UPSESSB. Advertisement No. 01/95-96 was published in daily Newspaper "Pioneer" dated 13.12.1995.

6. When vacancy of Principal arose in the College on 01.07.1989, U.P. Secondary Education Services Commission Rules, 1983 (hereinafter referred to as "Rules, 1983") were operating.

7. Rule-4 of Rules, 1983 talked of determination and intimation of vacancies. Sub-rule-(1) Clause (ii) thereof contemplated that Management shall forward names of "two senior most Teachers" and their service record and particulars, as UPSESSB may require. Rule-3 and Rule 4 (1) of Rules, 1983, are reproduced as under:

"3. Qualifications and experience etc. for appointment as teacher.- (1) The minimum academic qualification for appointment as teacher shall be as given in Regulation 1 under Chapter II of the Regulations, framed under the Intermediate Education Act, 1921.

(2) No male person shall be eligible for appointment to the post of the head of an institution or teacher in a girls institution:

Provided that nothing contained in this sub-rule shall apply in relation to:-

(i) a teacher already working in a permanent capacity in a girls institution for promotion or appointment to any higher post of a teacher, not being the post of the head of an institution in the same institution;

(ii) appointment as a teacher for the subject of music in an institution to a person who is blind:

Provided further that when a suitable lady candidate is not available for appointment in a girls institution on the post of a teacher, not being the post of head of institution, or for any other sufficient reason, the Commission is satisfied that it is in the interest of the students so to do, it may recommend a male candidate for such post :

Provided also that, before recommending a male candidate in accordance with the preceding proviso, the Commission may obtain and consider the view of the Director and Management."

"4. Determination and intimation of vacancies. - (1) (i) The Management shall determine and intimate to the Commission, in the proforma given in Appendix 'A' and in the manner hereinafter specified, the number of vacancies existing or likely to fall vacant during the year of recruitment and, in the case of any post, other than the post of the head of an institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Caste, Scheduled Tribes and other category of persons in accordance with the rules or orders issued by the Government in this behalf in regard to the educational institutions.

(ii) In regard to the post of head of an institution, the Management shall also forward, mutatis mutandis, in the manner hereinafter specified, the names of two senior most teachers, copies of their service records (including character rolls) and such other record or particulars as the Commission may require from time to time.

Explanation. - For the purpose of this sub-rule 'senior most teachers' means the senior most teachers in the post of the highest grade in the institution, irrespective of total service put in the institution.

(iii) Where an institution is raised from High School to an Intermediate College, the post of Principal of such a college shall, with the approval of the Commission, be filled by promotion of the Headmaster of such High School if he was duly appointed as Headmaster in substantive capacity in accordance with law for the time being in force and possesses a good record of service and the minimum qualifications prescribed in that behalf or has been granted exemption from such qualifications by the Board. Proposal for promotion shall be submitted by the Management to the Commission, mutatis mutandis, in the manner hereinafter specified, along with the service-book, character roll and the educational and other qualifications of the Headmaster concerned."

8. In Appendix 'A', Clause 3A was inserted vide Notification dated 01.07.1983 and it reads as under:

"3A. Where the post for which selection is to be made is of Principal, names of two senior most teachers, possessing requisite qualifications for the post of Principal, in order of seniority and their -

(a) educational qualifications,

(b) teaching experience,

(c) administrative experience, if any.

Note. - Copies of the service records (including character rolls) shall be sent with the requisition."

9. Rules, 1983 were superseded by U.P. Secondary Education Services Commission Rules, 1995 (hereinafter referred to as "Rules, 1995"), which came into force with effect from 08.05.1995. Rules, 1995 were amended in 1996 with effect from 26.02.1996 and therein provision was made for sending names of two senior most Teachers of the College to UPSESSB alongwith their service record.

10. When UPSESSB advertised vacancy in question, senior most teachers working in College were Sri Vijay Singh and Shamsher Singh. Sri Mahendra Pal Singh, in the seniority list published on 17.10.1995 was at Sl. No.-3.

11. UPSESSB held interview on 28.11.1996 and 03.02.1997. Vijay Singh was to retire on 30.06.1997 and Shamsher Singh was to retire on 30.06.1998. UPSESSB sent letter dated 09.01.1997 requiring petitioner to appear for interview scheduled on 03.02.1997.

12. UPSESSB also sent letters inviting two senior most Teachers of College to participate in Interview scheduled on 28.11.1996 and said letter dated 05.11.1996 was addressed to DIOS. DIOS in turn sent letter dated 18.11.1996 to Management of College to intimate senior most Teachers to participate in interview on 28.11.1996. These letters were served upon officiating Principal of College as also Administrator of College.

13. The two senior most Teachers, namely, Vijay Singh and Shamsher Singh, both were not allowed to officiate as Principal in view of a judicial order passed by a Division Bench on 07.10.1996 in Special Appeal No. 746 of 1996 arising from Writ Petition No. 31195 of 1996. Since appeal was filed against an interim order, Division Bench directed learned Single Judge to decide writ petition itself on merits and till then none of two senior most Teachers, namely, Vijay Singh and Shamsher Singh, were to be allowed to officiate as Principal and instead this Court directed that it would be open to Director of Education to have any other senior most Teacher of College to function as officiating Principal.

14. Ultimately, UPSESSB recommended petitioner for appointment as Principal in the College vide Notification dated 15.04.1997.

15. Since there was a lot of litigation in respect of selection made by UPSESSB, petitioner was not allowed to join whereupon he filed Writ Petition No. 24774 of 1997 which was disposed of vide order dated 05.08.1997 directing DIOS to take necessary steps in accordance with Rules and ensure compliance of Section 17 of Act, 1982 within eight weeks. Consequently, Administrator of College issued appointment letter dated 15.09.1997, appointing petitioner as Principal of the College but the said order was not allowed to operate by DIOS in view of interim order passed by this Court. Petitioner then again came to this Court in Writ Petition No. 43093 of 1997 in which no interim order was passed. Then he filed Special Appeal No. 8 of 1998 which was disposed of vide judgment dated 08.01.1998 passing following order:

"Heard Shri R.N. Singh for the appellant, Shri A.K. Yadav for respondent no. 1 and Sri H. Upadhyay, standing counsel for the respondent nos. 2 to 4.

In this appeal filed by the petitioners of Writ Petition No. 43093 of 1997 the order dated 19.12.97 in which the learned Single Judge declined to pass any interim order in the case is under challenge. As the impugned order shows, the learned single judge has directed the writ petition to be listed for admission in the weeks commencing 2nd March, 1998.

Considering the facts and circumstances of the case as revealed from the record, particularly the undisputed factual position that the petitioner appellant had been selected by the Commission for the appointment as Principal of the College and he was discharging duties of the post when the impugned order was passed, as an interim measure, it is ordered that if the order of the District Inspector of Schools, Bulandshahar dt. 29.11.1997 has not been implemented, the same shall not be implemented without leave of this Court.

Accordingly the Special Appeal is disposed of."

(emphasis added)

16. Thereafter, DIOS passed order dated 21.01.1999 and petitioner was allowed to work as Principal in the College pursuant whereto he joined on 30.01.1999.

17. Respondent-5, Mahendra Pal Singh, in the meantime, made a representation dated 09.04.1997 claiming that he should have been called for interview by UPSESSB treating him to be senior most Teacher on the date of interview since one of the senior most Teacher had retired. Thereafter respondent-5 came to this Court in Writ Petition No. 16735 of 1997 which was disposed of on 22.05.1997 passing following order:

"Heard learned counsel for petitioner and learned Standing Counsel.

By means of this petition, petitioner prays mainly for a writ, order or direction in the nature of mandamus commanding the respondents not to make any appointment on the post of Principal of Amar Singh Inter College, Kakhaoti, Bulandshahar on the basis of the selection held on 15.4.1997.

The grievance of the petitioner is that he was entitled to appear in the said selection, but he was not called for by the respondent no. 1.

Petitioner before filing present petition filed a representation dated 9.4.1997 a copy of which is contained in Annexure-IV to the writ petition for ventilation of his grievance, which is stated to be pending. The question as to whether the petitioner was entitled to appear in the said selection, is question of fact, which can more appropriately be decided with the help of the record. I, therefore without entering into the merits of the case, dispose of this petition finally with the direction to the respondent no. 1 to look into the matter and to decide the said representation filed by the petitioner by means of speaking order within one month from the date a certified copy of this order is produced before him." (emphasis added)

18. In the above writ petition, petitioner was not a party, still DIOS passed an order on 23/25.08.1999, without giving opportunity to petitioner, cancelling petitioner's appointment and directing that till fresh selection is made by UPSESSB, senior most Teacher of the College shall function as Principal.

19. Petitioner filed Writ Petition No. 37734 of 1999 which was disposed of vide judgment dated 23.09.1999 and operative part of judgment reads as under:

"In view of the disputed question of fact and for want of complete record, I consider it expedient to dispose of this writ petition with direction to the respondent no. 1 to consider the matter afresh after giving opportunity of hearing to the petitioner as well as respondent no. 5 regarding compliance of the Rule 11(2)(b) referred to above including the question about the extent to which commission or Board is required to make effort in that direction. Learned counsel for the petitioner wants to challenge the locus standi of the respondent no. 5 on the basis of a Supreme Court's decision. It will be open to the petitioner to raise this question before the respondent no. 1 whether the parties co-operate or not the Commission (Respondent No. 1) will decide the matter within one month. Since both the parties are represented here, they will make their representation before the respondent no. 1 within a week and approach the Commission for hearing on 4-10-1999 on which date Commission will hear the parties and will concludes the hearing on the same day. If for some reasons 4th October is declared holiday, the Commission (Respondent no. 1) will hear the parties on the next date i.e. 5th Oct. 99. Till decision by the Commission status quo will continue on the post in question. The impugned order is hereby quashed.

There will be no order as to costs." (emphasis added)

20. Thereafter, petitioner made a representation dated 08.03.2000.

21. Since learned Single Judge vide judgment dated 23.09.1999 remanded the matter, against that part of judgment, petitioner came in Special Appeal No. 1023 of 1999 in which initially an interim order was passed on 20.02.1999.

22. The said Special Appeal has been decided vide judgment dated 02.05.2008 and operative part of judgment is reproduced as under:

"In view of the aforesaid intervening facts, we are of the considered opinion that no purpose would be served by keeping the appeal pending. It is in the interest of substantial justice that all the issues raised in the present appeal be left open to be agitated in pending writ petition including the issue as to whether any objection on behalf of Sri Mahendra Pal Singh could be entertained at all.

We accordingly dispose of this appeal by providing that the petitioner shall continue to work as Principal till the decision of the Writ Petition No. 36881 of 2001 and it is also open for him to raise all objections qua the order asking the Commission to examine the grievance of Sri Mahendra Pal Singh. The Hon'ble Single Judge is requested to consider and decide the writ petition at the earliest without being influenced by any of the observation made in the order of Hon'ble Single Judge under challenge in this appeal.

Office is directed to list the aforesaid writ petition before the appropriate bench in the 2nd week of July, 2008."

(emphasis added)

23. It is admitted position that consequent to the aforesaid order passed by Division Bench, petitioner has been continuing to function as Principal and now has already retired.

24. Learned counsels for parties, even otherwise, could not dispute that so far as respondent-5 is concerned, at the time of advertisement made by UPSESSB, he was at Sl.No.-3 in the seniority.

25. A Division Bench of this Court in Nand Kishore Prasad Vs. U.P. Secondary Education Services Selection Board 1990 AWC 633 (All) has held that two senior-most Teachers, whose names are to be recommended, have to be considered, on the date when requisition is sent by Management and not in the light of subsequent retirements etc.

26. In Nand Kishore Prasad Vs. U.P. Secondary Education Services Selection Board (supra) vacancy on the post of Principal of College arose on 01.07.1986 due to retirement of Varmeshwar Rai, Permanent Principal on 30.06.1986. On the date of occurrence of vacancy, Nand Kishore Prasad was at Sl.No. 3 in the seniority list. Senior Most Teacher, Parashu Ram Upadhyay, was to retire on 30.09.1987. Nand Kishor Prasad claimed that since on the date of consideration by UPSESSB, only one senior most teacher was available and Parashu Ram Upadhya had already retired, therefore, the next senior most Teacher, i.e., Nand Kishroe Prasad also should have been considered and his name should have been sent by Committee of Management to UPSESSB. The Division Bench considered Rule-4 of Rules, 1983 and found that names of two Senior Most Teachers have to be forwarded by Management along with requisition since vacancies have to be determined during the "year of recruitment" and same have to be requisitioned to UPSESSB for recruitment. In para-4 and 5 of judgment, Court, therefore, said as under:

"4. Rule 4 (ii) of the U.P. Secondary Education Services Commission Rules, 1983 provides that in regard to the post of head of an institution, the Management shall also forward the names of two senior-most teachers, copies of their service records and such other record or particulars as the Commission may require from time to time for consideration by the Commission when the question of appointment of the Principal of the Institution is to be considered by the Commission.

5. Sub-rule (ii) of Rule 4, quoted above, in our opinion, clearly intends that on the date when the vacancy arose, on that date, the management is called upon to find out who are the two senior-most teachers whose names are to be forwarded to the Commission hence the date when the vacancy arose would be the relevant date for the purposes of Rule 4(ii). Merely because of a subsequent event, if another teacher becomes the senior-most teacher in the college, he does not have a right to ask the management to send his name also. If this interpretation is not taken then the result will be the process of selection by the Commission will never be completed as the name of the senior-most teachers would go on changing and the process of forwarding names will also continue. This does not take away the right of the said teacher to be considered for the post of Principal of the Institution if he has applied for the same. In the circumstances, so far as this petition is concerned, we do not find any merit in the same. The petition is, accordingly, dismissed." (emphasis added)

27. In respect to forwarding names of two senior most teachers along with requisition by Management, I find no substantial difference between Rules, 1983 vis-a-vis Rules, 1995 and a subsequent third set of Rules, which came into force in 1998, i.e., U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as "Rules, 1998").

28. This very question has been examined by a learned Single Judge of this Court in Shyam Lal and others Vs. State of U.P. and others 2011 (4) UPLBEC 2681 in the context of Rules, 1998. Court has held that Rules, 1998 do not alter the position as it was in Rules, 1983 which were considered in Nand Kishore Prasad Vs. U.P. Secondary Education Services Selection Board (supra). Para 12 of the judgment reads as under:

"12. The 1998 Rules do not alter the aforesaid position. Under Rule 10(a) of the 1998 Rules, the post of Principal of an Intermediate College is to be filled up by direct recruitment and for the purpose of direct recruitment to the post of teacher, which includes the Principal, the Management has to notify the vacancy through the Inspector to the Board in the proforma given in Appendix 'A' by 15th July of the year of recruitment. Such statement is to be sent by the Inspector to the Board by 31st July with a copy to the Joint Director of Education. Rule 11(2)(b) of the 1998 Rules provides that with regard to the post of Principal or the Headmaster, the Management shall also forward the names of two senior most teachers alongwith the copies of the service records (including character rolls) and such other records or particulars as the Board may require from time to time. Rule 12(6) of the 1998 Rules makes the position more clear. It provides that in respect of the post of Principal or the Headmaster of an Institution, the Board shall also, in addition, call for interview the two senior most teachers of the Institution whose names are forwarded by the Management through the Inspector under Rule 11(2)(b) of the Rules. It is, therefore, clear that such information required under Rule 11(2)(b) of the 1998 Rules is to be sent with the requisition by 15th July of the year of recruitment." (emphasis added)

29. Learned counsel for petitioner submitted that same view was taken by this Court in Bhola Nath Singh Vs. State of U.P. 2010 (79) ALR 572 wherein Rules, 1998 were considered but thereafter in intra-Court Appeal, i.e., Special Appeal No. 258 of 2010, judgment of learned Single Judge was set aside by Division Bench vide judgment dated 12.03.2010. Division Bench's judgment in Bhola Nath Singh Vs. State of U.P. (supra) reads as under:

"It has been contended before us by Mr. Radha Kant Ojha, learned counsel appearing for the appellant that by introduction of new Appendix "A" under Rules 11 (2) and (14) (3) in the U.P. Secondary Education Services Selection Board Rules, 1998, the date of requisition, which was prevailing in the Appendix "A" under Rules 4 and 9 of the earlier Rules being U.P. Secondary Education Services Commission Board Rules, 1983, cannot be the cut of date for the purpose of selection of the candidates.

Mr. A.K. Yadav, learned counsel appearing for the respondents has submitted that the date of advertisement is the appropriate cut of date. Joining the issue, Mr. Ojha has contended before us that not the date of advertisement but, the date of interview will be the cut of date, thereby one aspect is very clear that both the contesting parties before us are not on the issue that the date of requisition will be the appropriate cut of date. Having so, whether the date of advertisement or the date of interview will be the cut of date is required to be considered and decided by the learned Single Judge once again and hence, we set aside the order of the learned Single Judge dated 28.01.2010 and remand the matter to the learned Single Judge to decide the same as early as possible preferably within a period of one month from the date of communication of this order. For the purpose of expeditious disposal, the respondents herein can file the counter affidavit within a period of two weeks. Rejoinder affidavit, if any, will be filed within one week thereafter.

The special appeal is accordingly disposed of, however, without passing any order as to costs." (emphasis added)

30. From the above judgment of Division Bench, I do not find that any issue has been decided by Division Bench. On the contrary, Shyam Lal and others Vs. State of U.P. and others (supra) has been decided on 29.08.2011 and therein also learned Single Judge has considered Division Bench order of Bhola Nath Singh Vs. State of U.P. (supra) and thereafter has reiterated in para-16 as under:

"16. As noticed hereinabove, Appendix 'A' to the 1998 Rules does not make any change in the situation as from a reading of Rules 11(2)(a) and (b) and Rule 12(6) of the 1998 Rules, it is clear that the Management has to forward the names of two senior most teachers with the requisition with copies of service record (including character rolls) or such records or particulars as the Board may require from time to time."

31. Learned Single Judge (Hon'ble Dilip Gupta, J.) has also relied on another decision of learned Single Judge in Writ Petition No. 67834 of 2009 (Rajjo Babu Kushwaha Vs. State of U.P. and others) decided on 14.12.2009.

32. I further notice that considering Rules, 1998 and following Nand Kishore Prasad (supra), this Court (Myself) has taken the same view in judgment dated 16.08.2011 in Jagdish Prasad Pandey Vs. State of U.P. and others 2011 (8) ADJ 815.

33. In the result, I am in entire agreement with the reasons given in the above judgments and, in my view, name of senior most teacher will not change with the subsequent retirements of senior most teacher(s), whose names are sent or liable to be sent by Management when requisition is forwarded to UPSESSB since qualification and other requirements are in the context of "year of recruitment" and it is not a situation which would continue to go on changing depending on the date on which Commission advertises the vacancies or hold interview.

34. In the context of eligibility and qualification etc., whether it is date of occurrence of vacancy in the year of recruitment or the date when selection process commence or when Management send requisition, the matter has been examined by a 5-Judges Bench in Smt. Sadhna Vs. State of U.P. And 5 Ors. 2017 (6) ADJ 418 and with a majority of 4:1, it has been held that for the purpose of eligibility qualification etc., it is the "year of recruitment" following date of vacancy which is relevant and not an uncertain date when Management decides to sent requisition or any other similar uncertain event.

35. In view thereof, impugned order passed by UPSESSB holding selection of petitioner bad, cannot be sustained inasmuch Mahendra Pal Singh, respondent-5, could not have been an aggrieved person as he was not entitled to be called for interview on the post of Principal in question. UPSESSB has wrongly held that selection and appointment of petitioner is not in accordance with law.

36. In the result, I am clearly of the view that appointment of petitioner has wrongly been nullified by UPSESSB and impugned order dated 09.08.2000 (Annexure-29 to writ petition) cannot be sustained.

37. In the result, writ petition is allowed. Impugned order dated 09.08.2000 (Annexure 29 to Writ Petition) is hereby quashed.

Dt. 27.05.2019

PS