JUDGMENT S.K. Singh, J.
1. These are three writ petitions by which one and the same order of the District Inspector of Schools has been challenged. For the purpose of convenience, Writ Petition No. 22838 of 2001 is being taken as the leading case and that will govern other two writ petitions.
2. In district Allahabad, there is an intermediate college known as Majidia Islamia Intermediate College (hereinafter referred to as the college). The aforesaid college is Government aided and is a minority institution. On account of retirement of the existing staff, vacancy on the post of Assistant Teacher in L.T. grade for various subjects came into existence for which in pursuance of the advertisement, petitioners covered by these three writ petitions claim to have been selected. By the order impugned in this petition dated 4.4.2001, approval to the petitioners' appointment have been refused. After receipt of the order of the District Inspector of Schools, management appears to have made a representation pointing out the incorrectness in the order but that has also been rejected by order dated 18/22.5.2001 which is under challenge in these petitions.
3. There appears to be no dispute about the fact that the college in question is a minority institution. The scope of screening regarding appointment in the minority institution is limited. It is to be examined that whether the appointees are possessed with requisite qualification and whether there has been due advertisement before making the selection. In these cases, one of main objection which appears to have been taken in the order of the D.I.O.S. as well as in the counter-affidavit is that advertisement has been published before the vacancy came into existence, of course in Writ Petition No. 22838 of 2001 in respect to petitioner No. 2 in the counter-affidavit, there is an objection about the lack of his requisite qualification. Learned counsel for the petitioners submits that due information was given to the D.I.O.S. well in advance about the vacancies which were to come into existence. After due information to the D.I.O.S., the vacancies were advertised. Learned counsel submits that undoubtedly advertisement was published on the date on which the vacancies were not in existence but at the same time, there is also no dispute that the selection process, i.e., the date of interview was fixed after coming into existence of the vacancies. It has been pointed out that advertisement is just an offer and invitation to the candidates to apply and that has nothing to do with coming into existence of the vacancies on a particular date. If a candidate is willing, he is to apply in pursuance of the advertisement subject to his interview and further process. As the interview has taken place much after the vacancies came into existence, learned counsel for the petitioners submits that it cannot be said to be an irregular process vitiating the selection, if otherwise valid on the merits. It has been further submitted that on the fact of the present case, it cannot be said that the management, in order to extend undue benefit to the petitioners, in a slip shod manner or by making advertisement in the newspaper having no circulation have created such an atmosphere that meritorious candidates may not appear. In the present case, it has been pointed out that the advertisement has been published in three daily newspapers, i.e., Rashtriya Sahara (Urdu), Amar Ujala (Hindi) and Northern India Patrika (English). Copies of the advertisements have been brought on the record as Annexure-3 to the writ petition. It has been argued that in view of proper advertisement in widely circulated newspapers, no fault in the selection process having been pointed out by the D.I.O.S., order passed by him, refusing to give approval cannot be sustained. It has been further submitted that as within the required time of one month, disapproval was not communicated and, therefore, in view of the Explanation as provided in Regulation 17 (G), the approval to the petitioners' selection will be deemed to have been accorded. It is further submitted that the D.I.O.S. has taken arbitrary and discriminatory stand, as in pursuance of the same advertisement published in the aforesaid three newspapers other selections of the teachers in the primary section has been approved by the D.I.O.S. by letter dated 20.12.2000 and therefore, petitioners were also entitled to get same treatment. Lastly, it has been submitted that by mentioning various facts in the counter-affidavit and by advancing various kinds of submissions by the learned standing counsel during the course of the arguments they cannot be permitted to justify the impugned order as respondents cannot be permitted to supplement the impugned order by giving fresh reason in the shape of affidavit or otherwise. In this connection learned counsel for the petitioners has placed reliance on the decision given in Mohinder Singh Gill and Ors. v. Chief Election Commissioner, New Delhi and Ors., AIR 1978 SC 851 and decision in Surya Kumar Dixit v. D.I.O.S., Jalaun and Ors., 1992 (19) ALR 230. The principle in this connection as has been laid down in para 12 of the judgment in Surya Kumar Dixit (supra), can be thus quoted :
"The learned standing counsel has tried to justify the order for two additional reasons, which have not been taken into consideration by D.I.O.S. while passing the order of cancellation of approval. As stated earlier, he has tried to justify, the order on the ground that the order of approval was passed due to collusion of a Clerk as well as the order being a "farzi" order. These reasons are absolutely new reasons and they are not the basis of the order of D.I.O.S. by which the D.I.O.S. has cancelled the approval and, therefore, the respondents cannot be allowed to justify the impugned order by taking new additional reasons in present writ petition for justifying impugned order. The above view finds support from the case of Mohinder Singh Gill v. Election Commissioner, wherein it has been held that "when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise". As I am of the view that respondents cannot be allowed to justify the impugned order to be valid on the grounds not taken by the D.I.O.S., I am not inclined to consider said plea on merit in deciding the present writ petition."
4. Learned standing counsel in response to the aforesaid submission has tried to justify the order of the D.I.O.S., on the basis of the fact so mentioned in the counter-affidavit and also on the basis of the reasonings as given in the impugned orders. It has been submitted that before vacancy comes into existence, management had no right and there was no cause of action to advertise the vacancy, Learned counsel has taken the Court to the provisions as contained in Chapter 2 Regulation 17 of the Act to submit that the vacancies which exist at the time of advertisement will be advertised and therefore, on this score alone the entire selection has to be held to be invalid. It has been further submitted that details have been given in respect to the lack of educational qualification of the petitioner No. 2, in the counter-affidavit and therefore, on that score also, selection cannot be accepted to be valid.
5. In view of the aforesaid submissions, on examination of the materials and the pleadings as has been set forth before this Court, there appears to be no dispute about the fact that the vacancies were advertised before they came into existence. It is also admitted that the principal of the college has given due information to the D.I.O.S. about the vacancies which were to come into existence. In this connection, the only objection of the respondents appears to be that it is the management who was competent to give this information and not the principal but the fact remains that sending of the information about the vacancies which were to come into existence, there is no dispute. There is also no dispute about the fact that in three widely circulated newspapers of Hindi, English and Urdu, vacancies were notified. The objection of the respondents that as vacancies were notified before they came into existence and, therefore, on that ground alone, selection is to be held improper is to be tested. The Court fails to understand that what is the prejudice to anybody either to the applicants for the post in question or even to the office of the D.I.O.S. if the vacancies stood advertised at an earlier point of time. It is not the case that before the vacancies came into existence, appointment took place. Advertisement is just an offer given to the suitable candidates to apply. Take a case where the vacancies have been notified before they came into existence and for any reason, they could not actually become available or some impediment has come in filling the same, in that event no selection is to take place but in the cases where there is advertisement, there is application to the post and then vacancies came into existence and it is thereafter the interview takes place and the selection process is completed, nobody is said to be prejudiced by the factum of the notification of the vacancies at an earlier point of time, when they actually came into existence. In view of the aforesaid analysis, unless some other reason had come either in the order or in the counter-affidavit, besides notification of the vacancies before they came into existence, that in what manner selection is vitiated, the refusal to accord approval, solely on that ground, cannot be said to be justified.
6. So far the submission with regard to the lack of qualification with respect to the petitioner No. 2 is concerned, it appears to have been taken first time in the counter-affidavit and the order of the D.I.O.S. is completely silent on this aspect. As the submission made by the learned standing counsel in this regard requires investigation in the factual aspect, is not to be undertaken by this Court for the first time without there being consideration by the concerned authority. In view of the law laid down by the Apex Court as followed by this Court, respondents cannot be permitted to justify the order by supplementing fresh reasons in the shape of affidavit or otherwise and, therefore, the ground on which approval Has not been given to the petitioners' selection having not been approved by this Court, the matter requires a fresh consideration.
7. On the facts of the present case, it is clear that the college in question is a minority institution in which scope of screening is limited. The D.I.O.S. is to consider the factor that whether there is proper advertisement and whether petitioners are duly qualified. The submission of the learned counsel for the petitioners that on account of non-communication of any order within the required period of one month, there shall be deemed approval, has also to be considered. In respect to the lack of requisite qualification in respect to petitioner No. 2 as pleaded in the counter-affidavit will also be examined by the D.I.O.S. The submission of the learned counsel for the petitioners that on the basis of the same advertisement and by the same selection process, selectees of the primary section having been approved by the D.I.O.S. by order dated 20.12.2000, will also be taken into account by the D.I.O.S. It is in the light of these aspects, the matter is to be given fresh thought.
8. In view of the aforesaid, this writ petition succeeds and is allowed. The impugned order passed by the D.I.O.S. dated 4.4.2001 and 18/22.5.2001, are hereby quashed. The matter is remitted to the D.I.O.S. for passing fresh order In the light of the observation as made in this judgment. It will be better if the D.I.O.S. will fix a date on which petitioners and the management will be called upon to place their version before him which will facilitate in taking decision.
9. The writ petition thus stands allowed in terms of the direction contained in this judgment.
10. Parties will bear their own cost.