Dr. Sushila vs State Of U.P. And 4 Others
2023 Latest Caselaw 6989 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 

 
Court No. - 21
 

 
Case :- SPECIAL APPEAL No. - 34 of 2023
 

 
Appellant :- Dr. Sushila
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Narendra Kumar Chaturvedi, Arvind Kumar Yadav
 
Counsel for Respondent :- C.S.C., Chandra Kumar Rai
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Syed Qamar Hasan Rizvi,J.

1. The instant intra-Court appeal arises out of the order and judgement of learned single Judge dated 15.12.2022 whereby the writ petition filed by the appellant (hereinafter referred to as 'the petitioner') was dismissed. In the writ petition, the petitioner had challenged the orders dated 25.9.2018 and 6.12.2019 passed by Joint Director of Education, Azamgarh Region, Azamgarh rejecting the claim of the petitioner for being appointed as officiating principal of an Intermediate College namely Soni Dhapa Khandelwal Balika Inter College, Mau. On the other hand, the appointment of respondent No.5, Smt. Manju Rai (hereinafter referred to as 'the contesting respondent') was upheld.

2. The vacancy on the post of Principal came into existence upon retirement of Smt. Rizwana Bano on 31.3.2016. The Committee of Management of the institution recommended for appointment of the contesting respondent as the officiating Principal of the institution by resolution dated 22.3.2016. Pursuant thereto, the District Inspector of Schools passed an order dated 20.4.2016 appointing the contesting respondent as officiating Principal of the institution. The objection of the petitioner against the resolution of the Committee of Management was turned down by observing that the petitioner did not possess the minimum qualification prescribed under Appendix I to Chapter II, Regulation I of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act'). The contesting respondent was held to be the senior most teacher after the petitioner having the prescribed minimum qualification. The same view has been taken by the Joint Director of Education in the orders impugned in the writ petition.

3. The case of the petitioner is that she was appointed as lecturer in Civics in the institution on 1.8.2012 in substantive capacity. On the other hand, the contesting respondent was appointed as lecturer, by promotion, on 27.5.2013. Both the petitioner and the contesting respondent were not having the prescribed minimum qualification for the post of Principal on the date of occurrence of vacancy. The petitioner had M. A. qualification but was not having B.Ed. degree, the training qualification, essential for the post. She also did not had the experience of four years of teaching Classes IX to XII as was required under law. The contesting respondent possessed M.A. B.Ed. qualification but was not having four years teaching experience as a lecturer. Consequently she was also not qualified for appointment on the post of Principal. However, the petitioner being senior amongst two in the lecturer grade was having a better claim for appointment as officiating Principal. In the alternative, it was pleaded on behalf of the petitioner that she acquired B. Ed. qualification in June 2017 and also came to acquire four-year teaching experience by that time and thus became entitled for appointment as officiating Principal. However her claim was wrongly rejected by the orders impugned in the writ petition.

4. The learned single Judge held that the claim of the petitioner for being appointed as officiating Principal was rightly not accepted as she was not having B. Ed. degree on the date of occurrence of the vacancy. The challenge advanced by the petitioner to the finding recorded in the order of the Joint Direction of Education that the contesting respondent was having requisite teaching experience as she had taught Classes IX to XII for more than 20 years was negated on the ground that no specific challenge was raised by the petitioner in the writ petition to the correctness of the finding recorded by the Joint Director of Education in this behalf. The plea that the petitioner had acquired eligibility subsequently was held to be not relevant as the petitioner did not had the prescribed qualification on the date of the vacancy.

5. Learned counsel for the appellant petitioner made the following submissions: -

(a) the contesting respondent also did not had the requisite teaching experience of four years on the date of vacancy and therefore her appointment could only be saved by taking resort to the doctrine of necessity. Consequently, as soon as the petitioner acquired the eligibility, she became entitled for appointment as officiating Principal as she was senior in lecturer grade as compared to the contesting respondent. Therefore, her claim was wrongly negated by the Joint Director of Education. In support of the said submission, reliance was placed on the judgements of this Court in Smt. Hemlata Rajput Vs. State of U.P. and others1 and Anita Singh Vs. State of U.P. and others2.

(b) the learned single Judge wrongly held that the petitioner had not specifically challenged the teaching experience of the contesting respondent. In support of the said contention, reliance has been placed on the averments made in paragraphs 31, 32, 33, 34 and 36 of the writ petition.

6. On the other hand, learned counsel for the contesting respondent submitted that there is no illegality in the appointment of the contesting respondent as officiating Principal as she possessed the educational qualification and experience on the date of vacancy while the petitioner neither had the prescribed educational qualification nor teaching experience. Reliance has been placed on the judgement of the Apex Court in Balbir Kaur and another Vs. U.P. Secondary Education Service Selection Board and others3 in contending that four years teaching experience in lecturer grade was a condition precedent for eligibility on the post of Principal which the petitioner did not possess. He further submitted that the petitioner was rightly not given the benefit of B. Ed. qualification acquired subsequently as the relevant date for reckoning the eligibility was the date of occurrence of vacancy. In support of his contention he placed reliance on a Full Bench judgement of this Court in Smt. Sadhna vs. State of U.P. & Others4.

7. Section 18 of the U.P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as 'the Act of 1982') deals with the appointment of Principals or Headmasters on an ad hoc basis and the same is extracted below: -

"18. Ad hoc Principals or Headmasters. - (1) Where the management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the Management shall fill such vacancy on purely ad hoc basis by promoting the senior most teacher, -

(a) in the lecturer's grade in respect of a vacancy in the post of the Principal;

(b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.

(2) Where the Management fails to promote the senior most teacher under sub-section (1), the Inspector shall himself issue the order of promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he joins such post in pursuance of such order of promotion.

(3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of Principal or the Headmaster, as the case may be, due to any act or omission on the part of the Management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.

(4) Every appointment of an ad hoc Principal or Headmaster under subsection (1) shall cease to have effect from the date when the candidate recommended by the Board joins the post."

8. Although Section 18 was amended by U.P. Act No.5 w.e.f. 3.12.2000, but learned counsel for both the parties advanced their submission accepting that the law laid down by this Court in Shamshul Zama Vs. District Inspector of Schools Chandauli and others5 still holds the field. Therein, it was held that even for appointment of a person on the post of Principal on officiating/ad hoc basis, the minimum qualification prescribed for appointment of a regular Principal is essential.

9. Rule-5 of the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 provides that a candidate for appointment to a post of teacher must possess qualifications specified in Regulation I of Chapter II of the Regulations made under the U.P Intermediate Education Act, 1921. In Shamsul Zama's Case (supra), it was held that 'a teacher' also includes a principal in view of Section 2(k) of the Act.

10. Chapter II Regulation 1 provides that the minimum qualifications for appointment as Head of Institution, whether by way of direct recruitment or otherwise shall be as given in Appendix-A. In Appendix-A, the relevant entry dealing with the qualification of head of the institution is at Sl. No. 1.

11. The Supreme Court in Balbir Kaur's case (supra) had held that the qualification prescribed in Appendix-A stood superseded by the 'Note' appended to Rule 12(4) of the U.P. Secondary Education Services Selection Board Rules, 1998. It provides that for the purpose of calculating teaching experience for the post of principal, the service rendered as a lecturer shall only be counted. The relevant observations made in this regard by the Supreme Court in Balbir Kaur's case is quoted below: -

"19. As noted supra, Rule 5 of the 1998 Rules deals with academic qualifications for appointment to the post of teacher and contemplates that a candidate must possess qualification as specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Act. As per Appendix A of the Intermediate Regulations, a candidate should have four years experience of teaching classes X to XII. However, the `Note' appended to sub rule (5) of Rule XII excludes the teaching experience of Assistant Teacher for being construed as qualifying him for the post of Principal of an Intermediate College, although the afore-extracted Appendix A provides for it. The `Note' clearly stipulates that for selection to the post of the Principal of an Intermediate College, with which we are concerned, for the purpose of calculating the experience, services rendered as Headmaster of a High school or as a Lecturer only has to be taken into consideration. Obviously, the expression `teaching experience' as contemplated in the `Note' would apply both to the required experience and the experience more than that and, therefore, even for required experience only service rendered as Headmaster/Lecturer is relevant.

20. It is trite that true nature of a statutory provision has to be determined from the content of the provision, its import gathered from the language implied and the language construed in the context in which the provision was enacted. In Dattatraya Govind (supra) and Rani Choudhury (supra), this Court has said that mere description of a certain provision, such as explanation, is not decisive of its true meaning. It is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention. In Dattatraya Govind's case, it was observed that the legislature has different ways of expressing itself and in the last analysis the words used alone are the true repository of legislative intent.

21. Applying the aforenoted principles, we are of the opinion that the 'Note' appended to sub rule (5) of Rule 12 of the 1998 Rules has the effect of modifying the conditions of qualifying experience mentioned in Appendix A of the Regulations under the Intermediate Act.

22. Having come to the said conclusion, the issue which still survives for consideration is whether for appointment to the post of Principal, the qualifying experience as stipulated in the said 'Note' would apply or the one prescribed in the Appendix-A to Regulation I of Chapter II of the Regulations made under the Intermediate Act. In our view, answer to the question can be found in Section 32 of the Principal Act, which provides that the provision of the Intermediate Act and Regulations made thereunder will continue to be in force in case they are not inconsistent with the Principal Act and the Rules made thereunder. As noted hereinbefore 'Note' to sub rule (5) of Rule 12 of 1998 Rules prescribes the requirement of experience for the post, which is different from what is prescribed in the said Appendix A and, therefore, there being a conflict between the two provisions, in the teeth of Section 32, the said 'Note' shall have an overriding effect over Appendix A insofar as the question of experience is concerned."

12. Learned counsel for both the parties placed heavy reliance on the judgement of Supreme Court in Balbir Kaur's case, in contending that the other party did not had the requisite experience on the date of occurrence of vacancy and was thus not qualified. We therefore proceed to examine the contentions of learned counsel for the parties by accepting the legal position that the law laid down in Balbir Kaur's case would also be applicable to the case of an appointment as ad hoc/officiating principal of an institution.

13. Indisputably, the petitioner was appointed in the lecturer grade on 01.08.2012 and thus on the date of occurrence of vacancy, i.e. 31.03.2016, she was not having the prescribed teaching experience. She was also not having training qualification on that day, which was essential. Consequently, she was not eligible for appointment as officiating principal of the institution on the date of occurrence of vacancy.

14. In respect of the contesting respondent, the finding recorded in the order impugned in the writ petition was that she was having experience of teaching classes 9 to 12 of more than 20 years. This included the teaching experience in different grades, i.e. CT, LT and Lecturer. The learned Single Judge while dismissing the writ petition refused to examine the validity of the said finding on the ground that no serious challenge was advanced to the same in the writ petition. Learned counsel for the appellant, as noted above, has vehemently challenged the observations made by the learned Single Judge in this regard by placing reliance on paragraph nos. 31, 32, 33, 34 and 36, which are extracted below: -

"31. That further recital in the orders impugned that Manju Rai fulfilled the eligibility qualification and had more than 4 years length of service of teaching classes 9 to 12 and was therefore qualified for appointment as Principal of the institution is a perverse finding contrary to the requirement of law.

32. That originally Appendix 'A' did refer to a requirement of having 4 years teaching experience of classes 9 to 12 for appointment as Principal of the institution. However the said stipulation of experience stood superseded by the provisions of UP Secondary Education Services Selection Board Rules 1998.

33. That there exists a statutory note appended to Rule 12(4) of UP Secondary Education Services Board Rule 1998 which limits consideration of teaching experience for the post of Principal of an intermediate college to experience acquired as a Lecturer or as Headmaster of a High School. For convenience the note to Rule 12(4) of 1998 Rules is quoted below:

"For the purpose of calculating experience the service rendered as Headmaster of Junior High Schools or as Assistant Teacher in a High School/Intermediate College shall be counted in the case of selection of Headmaster and for selection of Principal, the service rendered as Headmaster of a High School or as a Lecturer shall only be counted."

34. That the note to Rule 12(4) of 1998 Rule override the specification of requirement of experience as contained in Appendix 'A'. This controversy has been set to rest by the Supreme Court by its judgment reported in 2008 (12) SCC (1) (Balbir Kaur & Another vs. UP Secondary Education Service Selection Board). The relevant extract of judgment reported in 2008 (12) SCC (1) (Balbir Kaur & Another vs. UP Secondary Education Service Selection Board) is being filed herewith and marked as Annexure 14 to this writ petition.

36. That clearly the orders impugned are based on ignorance of correct legal position and are liable to be set aside by this Hon'ble Court."

15. A perusal of these paragraphs would reveal that a challenge was definitely advanced to the entitlement of the contesting respondent to be appointed as officiating principal. The appellant had challenged the teaching experience possessed by the contesting respondent by placing reliance on the 'Note' appended to Rule 12 and the judgement of the Supreme Court in Balbir Kaur's case. The learned Single Judge has only referred to paragraph 24 of the writ petition but had overlooked the other relevant pleadings, specifically made in this behalf and therefore, we are unable to uphold the view taken by the learned Single Judge on the said aspect. We therefore proceed to consider whether the respondent possessed the experience required for the post on the date of occurrence of the vacancy.

16. The contesting respondent was promoted to the post of lecturer on 3.8.2013. In Balbir Kaur's case, as noted above, it was held that for reckoning experience for the post of principal, only teaching experience on the post of lecturer would be counted. The contesting respondent was not having four years teaching experience on the post of lecturer on the date of vacancy and was thus not qualified to be appointed as officiating/ad hoc Principal.

17. The factual position obtained on the date of occurrence of vacancy was that both the petitioner and the respondent were not having requisite teaching experience, but the contesting respondent was having the prescribed educational qualification. In such circumstances, the candidature of the contesting respondent as officiating principal was preferable and we find no good ground to interfere with the same.

18. In Hemala Rajpoot's case (supra), where none of the teachers were found having the prescribed eligibility, on the date of vacancy, it was held that the post of principal still could not be kept vacant. The doctrine of necessity was applied to uphold the appointment of the next senior-most teacher as officiating principal, as the senior-most teacher had declined to accept the responsibility. However it was held that as soon as any teacher attains eligibility, he/she would be entitled to appointment as officiating principal. The relevant observations are quoted hereunder: -

"18. On the date of occurrence of vacancy on the post of Principal in the Institution concerned neither the petitioner nor the respondent possessed eligibility in terms of Appendix-A. In the absence of availability of eligible teacher who could be appointed as Principal in the Institution it would become inevitable for the Institution to appoint someone as the Officiating Principal even though such incumbent may not possess requisite eligibility. Doctrine of necessity would therefore be attracted to deal with such a scenario.

21. The doctrine of necessity, however, would no longer be available once an eligible teacher is available to officiate as the Principal in the Institution. Petitioner admittedly was appointed as Lecturer after she was selected by the Board on 4.7.2003. The qualification required for appointment to the post of Principal would include ten years teaching experience on the post of Lecturer. This experience of ten years is acquired by the petitioner on 4.7.2013. The records further reveal that the Committee of Management of the Institution concerned has also taken a decision on 24.8.2013 to appoint the petitioner as the Principal of the Institution. The doctrine of necessity, therefore, cannot extend beyond 24.8.2013, inasmuch as the competent authority i.e. the Committee of Management had acted in accordance with Section 18 of the Act of 1982 in appointing the senior most eligible teacher as Officiating Principal."

19. Again in Anita Singh's case (supra), in a similar situation, the appointment of an ineligible person as officiating principal was upheld as long as an eligible person was not available. However it was held that as soon as an eligible person becomes available, the charge of the office of the principal has to be handed over to him. It would be useful to quote the relevant observations -

"9. It is also not in issue that petitioner did not possess requisite qualification for appointment to the post of principal on the date of accrual of vacancy i.e. 30.6.2009. The training qualification has been obtained by the petitioner only later in December, 2010. She was otherwise having the qualification of 4 year teaching in classes 9 to 12 having been appointed a lecturer in Economics in 2003. After the training qualification has been obtained by the petitioner she, therefore, becomes eligible for officiating on the post of principal.

10. On the date of accrual of vacancy i.e. 30.6.2009 the petitioner was not eligible to officiate on the post of principal. It was in that context that a decision had to be taken by the Managing Committee to hand over charge to someone of the office of principal as the office could not have been left vacant. The appointment of respondent no. 5, therefore, may be justified on the touchstone of doctrine of necessity but such continuance can be justified only so long as an eligible person is not available to function as the principal."

20. Although the relevant date for reckoning the eligibility for appointment as officiating principal was the date of vacancy, but in the given situation, where no teacher was eligible for appointment, the moment an eligible person became available, she should have been appointed as officiating principal. The date of occurrence of vacancy had lost relevance. Any other interpretation would lead to perpetuation of the tenure of the person who was appointed not in one's own right but by applying the doctrine of necessity. Petitioner admittedly completed her B.Ed. in June 2017 and also the requisite experience of four years on the post of lecturer and thus came to possess the prescribed eligibility. She thereafter made representation for being appointed as officiating principal of the institution. By that time, the contesting respondent was still not having four years teaching experience on the post of lecturer. Therefore, the claim of the petitioner should have been accepted but unfortunately the Joint Director of Education, by orders impugned in the writ petition, proceeded to negate her claim, which cannot be sustained in view of the foregoing discussion.

21. Accordingly, while we decline to interfere with the initial appointment of the contesting respondent as officiating principal of the institution, but as soon as the petitioner attained the eligibility, it is held, that she became entitled for appointment as officiating/adhoc Principal of the institution. In consequence, the impugned orders of the Joint Director of Education are hereby quashed. At the same time, we hold that the contesting respondent would not be liable to refund any pecuniary benefit that she had received while working as officiating principal. We direct the respondents to pass appropriate orders for appointment of the petitioner as officiating principal of the institution. The said exercise shall be completed within a period of two weeks from the date of receipt of a true attested copy of the instant order.

22. The appeal stands allowed to the extent indicated above. No order as to costs.

Order Date :- 3.3.2023

skv