Present writ petition has been filed by the petitioner questioning the validity of decision dated 30.01.2004 taken by U.P. Secondary Education Service Selection Board, Allahabad, as communicated by its Secretary under covering letter dated 31.01.2004. Further prayer has been made not to take any action pursuant thereto and not to interfere in the functioning of the petitioner as Principal of Kedar Nath Sakseria Kanya Inter College, Agra.
Brief background of the case, as mentioned in the writ petition, is that the petitioner was appointed as Lecturer in Psychology at Sagir Fatima Mohamadia Girls Inter College, Agra, where she joined on 28.08.1980, and her appointment was duly approved by the Regional Inspectress of Girls Schools, Agra. However, formal appointment letter was issued on 20.01.1981 specifying temporary appointment of the petitioner for one year with effect from 28.08.1980. Petitioner claims that she performed and discharged her duties till the end of academic session 1980-81 and was paid salary accordingly. In June, 1981 fresh selection proceedings were undertaken for regular appointment on the post of Lecturer in Psychology, for which interview took place on 22.06.1981, whereupon petitioner claims to have been selected and appointment letter was issued to her on 05.07.1981, according her appointment for one year on probation with effect from 08.08.1981. Petitioner claims to have joined the institution on 08.07.1981 and started discharging her duties. Petitioner has further stated that pursuant to aforementioned appointment letter, she continuously functioned till 25.08.1982, and with effect from 25.08.1982, the petitioner and few other teachers were precluded by the Management from discharging duties in the institution. Petitioner has stated that she had been paid salary from 31.08.1981 till June, 1982. Thereafter, petitioner was paid salary with effect from November, 1982 till October, 1983, and again for the month of December, 1984. Salary for the period July 1982 to October, 1982 was withheld. Thereafter, two set of writ petitions had been filed 2 before this Court; one writ petition No.3982 of 1984 and the other writ petition No.2496 of 1985, and this Court on 02.04.1985 and 23.04.1985, respectively, passed orders in the same. Pursuant to the aforesaid orders, District Inspector of Schools passed order 15.08.1985 against the petitioner. Said order dated 15.08.1985 was subject matter of challenge in writ petition No.13143 of 1985. Said writ petition was dismissed by this Court on 03.05.1988. Aggrieved against the said order, Special Lave Petition was preferred before Hon'ble Apex Court, and the Hon'ble Apex Court on 07.02.1990 issued direction for ensuring absorption of 8 teachers. On 02.05.1991 further order was passed by Hon'ble Apex Court issuing further directions, and thereafter on 13.08.1991, said appeal was finally disposed of. Thereafter, petitioner was offered appointment as Lecturer in Psychology on 16.08.1991 and was paid her remuneration. The post of Principal fell vacant and the same was notified to the U.P. Secondary Education Service Selection Board, Allahabad, and the Selection Board issued advertisement No.1 of 1998 inviting applications for the post of Principal in a large number of institutions, including Shri Kedar Nath Sakseria Kanya Inter College, Agra. Petitioner also submitted her application form and was called for interview; she appeared and faced interview on 02.06.1999. By means of notification dated 19.01.2000 issued by the U.P. Secondary Education Service Selection Board, the name of the petitioner was shown to have been recommended for the post of Principal. Pursuant to the aforesaid order, the District Inspector of Schools-II, Agra asked the Management of the College to issue appointment letter in favour of the petitioner on the post of Principal, and thereafter, on 28.01.2000 appointment letter was issued to the petitioner directing her to assume charge as Principal of the institution. Petitioner, thereafter assumed charge of the office of the Principal on 29.01.2000, and since then she started functioning and on completion of one year she was confirmed on the post of Principal. It has been stated that against the recommendation made qua appointment of petitioner, complaint was made before Lok Ayukta by one Vikal Singh Tomar, husband of one of the Lecturers in the institution against teaching experience of the petitioner, on the basis of which petitioner had been considered by the Selection Board for the post of Principal.
On the basis of said complaint, proceedings were initiated by the Joint Director of Education, Agra and a report was submitted on 11.03.2003. After 3 submission of the aforesaid report the Government sent some communication dated 31.06.2003 to the U.P. Secondary Education Service Selection Board to take action at its own level. In pursuance thereof notice dated 08.08.2003 was issued to the petitioner fixing 25.08.2003. On the said date, petitioner appeared and submitted papers along with covering letter. On 16.10.2003 communication was sent by the Secretary, U.P. Secondary Education Service Selection Board calling upon the petitioner to appear on 11.11.2003 and to produce copies of documents mentioned in the said communication. Petitioner has stated that on 11.11.2003 no proceeding took place and thereafter 05.01.2004 was fixed as next date. Petitioner has stated that on the said date she could not appear as she was not well on that day. Thereafter, by means of telegram, petitioner was required to submit documents referred to in the communication dated 16.10.2003, in response to which the petitioner submitted the documents asked for, along with covering letter dated 12.01.2004. Thereafter, the U.P. Secondary Education Service Selection Board has taken decision holding therein that the petitioner was not fulfilling the minimum eligibility criteria, as she was not having to her credit ten years teaching experience, which was one of the essential pre-requisite conditions for being appointed on the post of Principal of the institution. In this background, order impugned has been passed, which is subject matter of challenge and has been assailed before this Court.
Counter affidavit has been filed on behalf of the State as well as on behalf of Smt. Lajja Tomar, the senior-most lecturer in the College as also on behalf of U.P. Secondary Education Service Selection Board, and therein action taken has been sough to be justified by contending that from perusal of record and entire material placed before the U.P. Secondary Education Service Selection Board, it was clearly reflected the petitioner did not possess 10 years' teaching experience as required under Appendix 'A' of Chapter II of the Regulations framed under U.P. Act No. 2 of 1921, and in this background selection of petitioner has rightly been cancelled.
Rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit and reiterating the averments mentioned in the writ petition.
After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of 4 the parties.
Sri Ashok Khare, Senior Advocate, assisted by Sri Sidharth Khare, Advocate, contended with vehemence that in the present case, U.P. Secondary Education Service Selection Board has clearly misdirected itself, inasmuch as, under the order passed by Hon'ble Apex Court, the petitioner was absorbed on the deemed situation, that the petitioner had worked and benefit of teaching experience of prior service had been extended to her, as such the view taken is unsustainable, and further even otherwise the petitioner fulfills the requisite teaching experience of ten years, but on account of wrong computation being done, petitioner's candidature has been sought to be non-suited, as such present writ petition deserves to be allowed.
Countering the said submission, Sri V.K. Singh, Advocate appearing for newly impleaded respondents along with learned Standing Counsel, on the other hand, contended that the order passed by Hon'ble Apex Court cannot be over stretched and whatever rights have been conferred upon the petitioner, same is explicitly clear, and the said benefit of seniority etc. was confined to only seven teachers, whose names had been clearly specified and nothing can be added in the order passed by Hon'ble Apex Court, and further admitted position, in the facts of the case, is that the petitioner did not fulfill 10 years' teaching experience eligibility criteria as provided under Appendix 'A' of Chapter II of the Regulations framed under U.P. Act No. 2 of 1921, as such present writ petition deserves to be dismissed.
For ready reference Appendix 'A' of Chapter -II of the Regulations framed under U.P. Intermediate Education Act, 1921 is being extracted as below:
"APPENDIX A (In reference to Regulation 1 of Chapter II) Minimum eligibilities for appointment of Heads and teachers in non-
Government recognised Higher Secondary Schools.
For the purpose of minimum eligibilities prescribed under this,the degree and diploma in concerned subject of any University established or issued under or by any Central Act, Provincial or State or any institution which is considered as University under Section 3 of the University Grants Commission Act, 1956 , or of any such institution specially empowered by any enactment of Parliament shall be admissible.
In relation to prescribed eligibilities the word "trained" means post graduate training eligibility i.e. L.T., B.T., B. Ed., B. Ed. Sc. or M. Ed. or any equivalent diploma or degree of any University or or institution as referred to in the preceding para. Departmental A.T.C. and C.T. with at least 5 years' experience of teaching would be inclusive under this. Teachers having J.T.C./B.T.C. would be deemed as C.T. if he has worked for at least 5 years in C.T. grade.
Essential Qualifications Sl. Name of the post Essential Training Experience Age Desirable No. qualifications 2 3 4 5 1 Head of the (1) should be trained M.A. or M.Sc. Minimum institution or M.Com or M.Sc. (Ag) or any 30 years equivalent Post-graduate or other degree which is conferred by any body as referred to in above para and should possess teaching experience from any training institution recognised by the department or any degree college affiliated with any University or institution or any degree college affiliated with such institution as referred to in above mentioned first para, or at least four years teaching experience in classes 9-12 in anyinstitutioin recognised by Board or in any institution affiliated with the Boards of other States or alike institutions, whose examinations are recognised by Board, or should possess at least four years experience as trained graduate Head Master in any Junior High School recognised by Deptt.
Provided that he/she should not be less than thirty years of age (2) Teaching experience of ten years in Intermediate classes of any recognised institution with first or second class postgraduate degree, or third class post graduate degree with 15 years' teaching experience.
(3) Post graduate diploma holder in Science; provided that he has has passed diploma course in first or second class and has served meritoriously for 15 years or 20 years respectively in any recognised institution after passing such diploma course.
Note- (1) At least second class post graduate degree and on special teaching experience of 10 years in Intermediate classes of recognised institution, training eligibility of of Asstt. teachers may be relaxed (As per the provisions in the Act).
(2) Teaching prior to training or after training both, are included in teaching experience.
(3) Higher classes means classes 9-12 and teaching experience of these classes is admissible for the post of Principal in Intermediate College.
The aforesaid Appendix provides three alternative qualifications. The first being Trained M.A. or M. Sc. or M. Com. or M. Sc. (Ag) 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 class 9 to 12 in any training institute or in any institution. The second qualification which has been provided for is that the candidate should have 10 years teaching experience of Intermediate classes of any recognised institution with first of second class Postgraduate degree and of third class Postgraduate degree with 15 years teaching experience. Third qualification, which has been provided for is Postgraduate Diploma holders in Science with the condition that he has passed diploma course in first or second class and has served meritoriously for 15 years or 20 years respectively in any recognised institution after passing such diploma course. These are three alternative qualifications provided for being appointed on the post of Principal under Appendix-A of Chapter- II of U.P. Intermediate Education Act, 1921. Said qualification is further qualified by the note introduced to Section 12 of U.P. Act No. V of 1982.
In the present case the first question to be adjudicated is as to whether the petitioner, in the facts of the case, can be presumed that for the post of Principal she had requisite teaching experience as on the deemed situation petitioner should be deemed to have worked and while considering the question of teaching experience said deemed provision ought to have been noticed and accepted. The background of the case as reflected is that initial appointment of petitioner on temporary basis was made on 28.08.1980. Said appointment was approved by Regional Inspectress of Girls School and appointment letter was issued on 28.01.1981 specifying therein that the temporary appointment of the petitioner was for a period of one year with effect from 28.08.1980. Petitioner functioned till May, 1981 and was paid her remuneration. Thereafter, proceedings for regular selection were undertaken on the post of Lecturer, wherein petitioner was selected and appointment letter was issued to her, according appointment for the period of one year on probation with effect from 08.07.1981. Petitioner continued in the said institution and thereafter her services, along with other teachers, were dispensed with by the Managing Committee on the ground that they unauthorizedly absented and had gone on strike. Two set of writ petitions had 7 been filed before this Court; one writ petition No.3982 of 1984 and the other writ petition No.2496 of 1985, and this Court on 02.04.1985 and 23.04.1985, respectively, passed orders in those writ petitions. Pursuant to the aforesaid orders, District Inspector of Schools passed order 15.08.1985 against the petitioner. Said order dated 15.08.1985 was subject matter of challenge in writ petition No.13143 of 1985. Said writ petition was dismissed by this Court on 03.05.1988. Aggrieved against the said order, Special Lave Petition was preferred before Hon'ble Apex Court, and the Hon'ble Apex Court on 07.02.1990 issued direction for ensuring absorption of 8 teachers. On 02.05.1991 further order was passed by Hon'ble Apex Court issuing further directions, and thereafter on 13.08.1991, said appeal was finally disposed of. The orders passed by Hon'ble Apex Court on 07.02.1990, 02.05.1991 and 13.08.1991 are being quoted below:
"07.02.1990 "This matter is heard in part and is adjourned for four weeks to enable counsel for the parties including learned Additional Advocate General appearing for the State of Uttar pradesh to explore possibilities of adjusting 8 teachers of the 17 teachers whose services were terminated and who are available for reappointment to be absorbed. We have impressed upon the learned Additional Advocate General that steps should be taken to ensure absorption of 8 teachers in this very institution so that there would be no rancour left. If, however, such absorption is not possible, alternative proposals sholdbe placed before the Court on the adjourned date.
We gather that 1 teachers who are sustained are parties to this appeal as respondent Nos. 7 to 16 and 18. though they are admittedly rendering service no salary is being disbursed top them on the plea that the dispute is still pending before this Court. We do not think that it is appropriate at all to extract service without payment of remuneration. We direct the management of the institution to draw up appropriate bills for disbursement of their salary beginning form February, 1990 and the learned Additional Advocate General has assured that the departmental authorities would draw the bills and disburse such payments. Such payment shall continue to be made month after month until further directions of this Court without pre judice to the stand taken by the parties in this dispute.
Two teachers being Noorjehan and Zahid Khan out of the II terminated teachers have since died. The service benefits which had accrued to them have not been disbursed to their legal representatives on the plea of pendency of this litigation. Since with their death the connection with the institution has come to an end and there is no question of their reverting to service, we see no justification for the dues to be withheld. We direct the Management to draw up appropriate bills for collecting money from the State and in case there is any other source out of which retiral dues are to be paid the Management should take appropriate steps and arrange payment to the legal representatives in respect of each of... the share.
One of the authorized legal representatives would be entitled to receive the payment from the institution. These payments should be disbursed within eight weeks from today.
This matter stands adjourned to 7th of March, 1990."
"20.05.1991 "Heard counsel for the parties. We are happy to find that pursuant to our order made earlier in this case Smt. Kamla Mehra, Smt. Saran Kumari Gaur and Swaliha Begum have been given postings and they have already reported to duty. So far as petitioners Km. Asifa Rizvi, Km. Sayyada Rizwani and Shafiqa Begum are concerned, Ms. Dikshit points out that though there is some possibility of adjusting them in other institution, it is a time- taking process to impose teachers from out side on the administration of the institution.
We think it appropriate in the interest of justice to require the Director of Secondary Education to require such of the colleges where appropriate vacancies are available to adjust these three teachers. To so adjust them the institution shall take our present order as a direction to adjust them and as and when called by the Director of Secondary Education it shall be implemented. Failure to comply shall be treated as violation of our direction. So far as Smt. Sudha Dixit is concerned, we gather from the representation made at the Bar that a vacancy in the speciality is about to arise in the coming month. If that be so, Ms. Dikshit has agreed to see that she is so posted.
As far as two remaining teachers are concerned, they do not agree to go out of the institution and Ms. Dikshit points out that in their subjects there is no vacancy. In these circumstances, they have choice to wait indefinitely till vacancy occurs without claiming salary till employment. If this is not acceptable to them the order of termination already made shall be taken as final and conclusive and their petition shall stand dismissed.
Service record of all the teachers who are joining outside shall be forwarded to the respective institutions by respondent no. 17 through the Regional Inspectress of Girls at Agra. So far as giving of certificate of good conduct is concerned, respondent no. 17 is directed to issue certificate of good conduct to the teachers who are being posted out side on the basis of undertaking given by Mr. Markandeya that there will be no occasion of misconduct by these teachers in the new institutions.
Call the appeal again on 25th July, 1991."
13.08.1991 "So far as Smt. Sudha Dixit is concerned, we gather from the representation made at the Bar that a vacancy in the speciality is about to arise in the coming month. If that be so, Mr. Kidshit has agreed to see that she is so posted."
"So far as Smt. Sudha Dixit is concerned, we think a situation has now arisen where the Director must implement our order. We had clothed him with adequate powers by our order of 2nd May, 1991 and he must under that authority proceed to enforce his order. The Director should provide employment to Smt. Sudha Dixit in terms of the assignment made and the institution where she has been directed to join should accept the teacher. Beyond that we do not intend to say anything at this stage."
"We are, however, of the view that seven teachers who have got employment should be given their seniority for the period they were out of employment. We accordingly require the Director of Public Instruction to take out order into account and give them credit for seniority for the period they were out of employment on the deemed situation that they had worked our doing so, we again repeat, would not 9 entitle them to salary unless they are otherwise entitled to. This disposes of the appeal."
From the orders passed by Hon'ble Apex Court, it is clear that as far as termination of services of petitioner is concerned, same has attained finality. The order dated 13.08.1991 gave positive mandate to see that the petitioner was absorbed and consequential steps were taken. Seven teachers who were already given employment,qua them, it was clearly mentioned that seniority for the period for which they remained out of employment be given on the deemed situation that they had worked, and it was categorically mentioned that in doing so, it would not entitle them to salary unless they were otherwise entitled to. As far as petitioner is concerned, qua her no such observation had been made and the reason was obvious that the petitioner was not absorbed and was still waiting for appointment. The question is as to when said order was confined to seven persons, can its benefit be extended to the petitioner as well, on the ground of parity. The Division Bench of this Court had already passed an order dismissing the writ petition on behalf of the petitioner and the Hon'ble Apex Court at no point of time proceeded to interfere with the said order, rather to the contrary in operative portion of the order, it was mentioned that "We are sorry that we entertained an appeal of this type by special leave and got dragged into a dispute which should not have been brought up to this Court". Whatever has been mentioned therein has to be read in the form it has been provided for. For seven teachers clear cut direction was made, but as far as petitioner is concerned, no such direction had been given on the deemed situation. The observation made by Hon'ble Apex Court qua seven teachers cannot be read in relation to petitioner, and in case something more was to be read in reference to order passed by Hon'ble Apex Court an dispute was being raised on this score, the petitioner could have approached the Hon'ble Apex Court for clarification of the order passed by Hon'ble Apex Court. As far as this Court is concerned, the order has to be read in the context of seven teachers, who already stood absorbed and qua whom benefit of seniority had been given on deemed situation. The benefit of said absorption is not extendable to the petitioner in absence of there being direction qua petitioner, as such accepting of request of petitioner will amount to something, which is not subscribed from the order dated 13.08.1991 passed by Hon'ble Apex Court, and in this background, qua petitioner the benefit of deemed continuation cannot be 10 extended on the deemed situation that she had worked.
Hon'ble Apex Court in the case of V.B. Prasad v. Manager P.M.D. Upper Primary School and others, (2007) 10 SCC 269, has considered the question as to whether experience can be deemed or not. Relevant extract of the aforesaid judgment as contained in paragraphs 8 to 13 is being quoted below:
"8. Before embarking upon the contentions raised by the learned counsel for the parties, we may notice the admitted fact. Respondent No. 2 joined the School on 16.07.1969. Appellant herein joined the school as a Drawing teacher on 17.07.1978 and has been working on a regular basis only with effect form 02.06.1980. He was declared a protected teacher from 01.06.1989. While discharging his duties as a teacher, Appellant applied for and granted study leave for higher studies for two years with effect from 01.06.1991. He remained on leave upto 28.02.1993. It is accepted that he was not a candidate who was considered for appointment to the post of Headmaster. He indisputably gave consent for appointment of Respondent No. 2. His case, therefore, never fell for consideration either by the management of the school or by the Government or by the High Court. Rule 45 of the Kerala Education Rules in the aforementioned context, interpretation whereof falls for our consideration may now be noticed :
"45. Subject to rule 44, when the post of Headmaster of complete U.P. School is vacant or when an incomplete U.P. School becomes a complete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the school or schools under the Educational Agency. If there is a Graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years' experience in teaching after acquisition of B.Ed. degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most undergraduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the school or schools under the same Educational Agency, the senior most primary school teacher with S.S.L.C. or equivalent and T.T.C. issued by the Board of Public Examination, Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary school assistant may be appointed.
Note : The language/specialist teachers, according to their seniority in the combined seniority list of teachers shall also be appointed as Headmaster of U.P. School or Schools under an Educational Agency provided the teacher possesses the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy."
The said rule, thus, provides for essential qualification.
Rule 45 is in three parts. The first part provides for the qualification of a teacher who can be appointed in the post of Headmaster. He must be graduate with B.Ed. or other equivalent qualification and must have at least five years' experience in teaching after acquisition of B.Ed. degree. The second part of the rule provides for consideration of such teachers only in the event a graduate teacher is not available. Indisputably, Respondent No. 11 6 fulfils the educational qualification as also five years' experience in teaching after acquisition of B.Ed. degree. Ignoring her claim, Respondent No. 2 was appointed whose case comes within the purview of the second part of Rule 45, as she did not have the qualification specified in the first part thereof . Appellant was a Drawing teacher. He, therefore, was a specialist teacher. According to him his case comes within the purview of the 'note' appended to Rule 45.
9. For the time being, we may assume that in view of fact that he had also acquired the qualification of B.Ed. in April 1989, his case also could be considered in terms of Rule 45; although it is well-settled principles of law that the note appended to a statutory provision or the subordinate legislation must be read in the context of the substantive provision and not in derogation thereof. Five years' teaching experience for appointment to the post of Headmaster was a sine qua non. Such teaching experience was to be 'teaching experience' and not a deemed teaching experience.
10. In Punjab State Electricity Board Ltd. v. Zora Singh and Others [(2005) 6 SCC 776], this Court noticing a decision of a Full Bench of the Andhra Pradesh High Court in A.P. SRTC v. STAT [ILR 2001 AP 1], observed: 2005 AIR SCW 5676, Para 21 AIR 2001 AP 335 "23. In A.P. SRTC v. STAT a Full Bench of the Andhra Pradesh High Court has noticed thus (An LT p. 544, para
31):
31[24]. The meaning of note as per P.Ramanatha Aiyars Law Lexicon, 1997 Edn. is a brief statement of particulars of some fact, a passage or explanation.
24. The note, therefore, was merely explanatory in nature and thereby the rigour of the main provision was not diluted."
11. Mr. V. Shekhar, the learned Senior Counsel appearing on behalf of Appellant, however, has drawn to our attention to a circular letter dated 30.12.2005 issued by the Government of Kerala Finance (Rules) Department, from a perusal whereof it appears that the leave without allowance under Rule 91 for study purpose would carry service benefit in regard to seniority/promotion accumulation of HPL but would not be counted towards seniority/promotion and accumulation of earned leave.
12. Apart from the fact that the said Circular was issued only on 30.12.2005 and had not been given a retrospective effect, a clarification had been issued in respect of reckoning of period for service benefits only and not for seniority/promotion. It had been issued by the Finance Department and not by the Education Department. It does not and in law cannot supersede the statutory rules.
13. Indisputably, Appellant was on study leave for the period 01.06.1991 to 28.02.1993. During the said period, he was not teaching. He did not gain any teaching experience during the said period. If the said period is excluded for the purpose of computing teaching experience as envisaged under Rule 45 of the Rules, the question of his being considered for promotion to the post of Headmaster would not arise. Eligibility condition must be satisfied before a person is considered for promotion/appointment in respect of a particular post."
On the parameters as set out in the aforesaid judgment and looking into the requirement as provided under Appendix 'A' of Chapter II of the 12 Regulations framed under U.P. Act No. 2 of 1921, the incumbents who do not have to their credit requisite qualification, including teaching experience , qua said incumbents alternative eligibility criteria has been provided for. As far as petitioner is concerned, she has to her credit Master Degree in first division; she has to have 10 years teaching experience as Lecturer in Intermediate College. The question is as to whether said eligibility criteria is fulfilled and the petitioner has to her credit 10 years' teaching experience as Lecturer or not, for being appointed as Principal of the institution, which is the minimum eligibility criteria as provided under Appendix 'A' Chapter II of the Regulations framed under U.P. Act No. 2 of 1921.
The term "experience" has been defined as "knowledge or practical wisdom gained from what one has observed encountered or undergone". Teaching experience has to be teaching experience and not deemed teaching experience, in this background, it has to be seen as to whether 10 years teaching experience in Psychology was or was not to the credit of the petitioner. The factual position which emerges in the present case is that the petitioner has functioned as Lecturer in Psychology with effect from 28.08.1980 up to May, 1981, and thereafter from 08.07.1981 to 26th August, 1982 where after order of dispensation of service had been passed. Thereafter, petitioner has not functioned, and the said order of termination had been upheld by this Court clearly mentioning therein that the petitioner had full knowledge of the order of dispensation of her service, and merely because salary has been paid, it cannot be said that there was no dispensation of service. Hon'ble Apex Court has held that seven teachers who had got employment should be given seniority on the deemed situation. Once termination order had been upheld and the entire exercise which was undertaken was in respect of re-employment, then in this background since petitioner was not given appointment, her services were not liable to be clubbed and treated as teaching experience. Petitioner joined on being re- employed after absorption on 16.08.1991, and the last date for submission of application form in response to advertisement was 30.09.1998. Total services, which the petitioner completed at the second institution wherein she was absorbed, was six years eleven months and twenty seven days, and at the earlier institution, admitted position is that the petitioner had functioned from 28.08.1980 to May, 1981 and thereafter from 08.07.1981 to 25.08.1982, when 13 resolution was passed by the Managing Committee dispensing with her services. This was the actual period for which the petitioner had functioned. Once this is the factual scenario, then by no stretch of imagination, it can be said that the petitioner had completed ten years service as Lecturer. The period for which she remained out of employment, cannot be counted or accepted towards teaching experience. The payment of salary which had been made to the petitioner from November, 1982 till October, 1983 and again for the month of December, 1984 will not make any difference, once order of dispensation of service had been upheld by this Court. In the facts of the case re-employment certainly connoted fresh contract of service, and no interference is feasible, as the petitioner did not have to her credit 10 years teaching experience as Lecturer in Psychology and she was not at all eligible for being appointed as Principal of the institution.
Consequently, present writ petition fails and the same is dismissed.
No order as to costs.
29.01.2010 SRY