JUDGMENT S.K. Phaujdar, J.
1. Undisputedly, Messmore Intermediate College of Pauri Garhwal, is a minority institution managed and run by members of the Christian community. There is also no dispute that after the superannuation of the former principal of that institution, the post fell vacant and the process for selection of a principal was taken up. The petitioner and the respondent No. 3, along with others faced an interview by the selection board in the aforesaid process of selection. The trouble started after the selection. While the petitioner claimed that he had scored the maximum marks in the selection process, he was illegally shown as second while respondent No. 3 who actually came second was illegally shown as first. It was the case of the respondent No. 3 that after his selection was duly made, his name was forwarded to the Regional Deputy Director of Education, Garhwal Mandal and the selection was approved. It was asserted that despite this selection and approval, the present Manager of the Committee of Management of the concerned institution did not appoint him as the Principal. In the course of arguments, it was felt necessary that the respondent No. 1 should produce the original papers forwarded to him by the Manager of the institution so that the real facts could come out.
2. According to the petitioner, the institution of the respondent No. 2 was a recognised Intermediate College and the Provisions of U. P. Intermediate Education Act were applicable mutatis mutandis to this institution which also receives grant-in-aid from the State Government. The post of the Principal fell vacant in July, 1995, after retirement of the erstwhile Principal Mr. J.N. Massey. The petitioner claimed that he was the seniormost Lecturer having 33 years' continuous service to his credit and, awaiting a regular appointment against the post of the Principal, he was asked to discharge the duties of the Principal in an officiating capacity and he had been discharging such responsibility since July, 1995.
3. The petitioner further stated that a Selection Committee was constituted under the provisions of Section 16FF of the U. P. Intermediate Education Act and the Committee met at New Delhi on 21.1.97 for selection of a candidate for the post of Principal. The Selection Committee consisted of the Bishop who was also the Chairman of the Committee of Management and four others. These four persons were not named in the petition but their names came through the original papers produced by respondent No. 1, They were Reverend Rajendra Prasad, the then manager of the institution, Sri N.P. Baluni, a representative of the respondent No. 1, Mr. J.N. Massey (who was the earlier Principal) and Sri V.P. Singh, who is now the Manager of the institution after Rev. Rajendra Prasad.
4. The petitioner continued to say that both he and respondent No. 3 appeared before the Selection Committee which had considered the suitability of the candidates and placed the petitioner at Serial No. 1 with 328 marks in total while the marks given to respondent No. 3 who came in the second position, totalled to 326. It was averred in the writ petition that the then Manager Rev. Rajendra Prasad (now respondent No. 4) had, illegally and malaciously, with a view to give undue advantage to respondent No. 3, tampered with the select list prepared by the Selection Committee and interpolated into the total marks secured by the petitioner by scoring through the total of 328 and making it 318. As a result of this, the petitioner was pulled down to the second position while respondent No. 3 was pushed upto the first position. The interpolation so made was done under the signature of the Manager alone and not by the members of the Selection Committee. This tampered list was forwarded to respondent No. 1 for grant of approval in favour of appointment of respondent No. 3 as the Principal. By this time the Manager Rev. Rajendra Prasad ceased to occupy that office with effect from 27.1.97 and the Bishop appointed Rev. V. B, Singh as a new Manager of the institution. Respondent No. 1 was not passing any order on the question of approval although the select list was sent to him, hence the new Manager Rev. V.B. Singh requested him to expedite the matter and sent to him the concerned papers afresh. In the papers that were sent by Rev. V.P. Singh the petitioner was shown in the first position.
5. The anomaly between the two letters from the two Managers was taken note of by respondent No. 1 and by his letter dated 7.2.97, he wrote to the Chairman of the Committee of Management about this anomaly and desired that the matter be explained. The Bishop/Chairman of the Committee of Management was not available at his residence when this letter from respondent No. 1 was received, hence the present Manager wrote to respondent No. 1 on 14.2.97 for deferring the matter for some days so that the query could be answered by the Bishop. When the Bishop came up, he wrote a letter to respondent No. 1 explaining how the marks were given and asserting that it was Mr. H.V.K. Nathan who was selected by the Selection Committee. However, respondent No. 1 had given approval to the appointment of respondent No. 3, only. This approval was based on an interpolated report and, according to the petitioner, the grant of approval was arbitrarily made and respondent No. 1 should have waited for the comments of the Bishop when he had himself sought for a clarification of the anomaly in the two reports of the two Managers. Respondent No. 1 was also approached personally by the petitioner on 26.2.97 but the respondent No. 1 expressed his inability to revoke the approval order.
6. It was stated that the petitioner had not filed any earlier writ petition and had no other alternative efficacious remedy but to move for a writ of certiorari and a writ of mandamus under Article 226 of the Constitution. The petitioner prayed that the order dated 24.2.97 (Annexure-7 to the writ petition) granting approval in favour the appointment of respondent No. 3 be quashed and a direction be given to respondent No. I to approve the appointment of the petitioner as the Principal.
7. The matter was contested by Aditya C. David (respondent No. 3) in whose favour appointment was approved on 24.2.97. It was stated in his counter-affidavit that Mr. H.V.K. Nathan claimed to be the seniormost teacher in the institution and his claim as the seniormost was not factually correct. However, it was not disputed that Sri Nathan was asked to officiate as Principal till the appointment of a regular Principal. Regarding the process of marking in the Selection Committee, certain criteria were fixed and marks were to be given in the following way. The Interview-Full marks 35. Personality: Full marks 20, Church Activity-Full marks 20 and Suitability-Full marks 25. The total of the marks under these categories was 100. Each member of the Selection Committee was given a sheet with the aforesaid columns for noting their marks against each candidate under each head. The petitioner was given 30, 15. 20 and 20 in the aforesaid criteria respectively by the Bishop and the total of these marks was 85 but it was incorrectly totalled at 95 and a difference of 10 marks for sheer miscalculation gave an advantage to respondent No. 1. While forwarding the marks sheets to the respondent No. 1, the erstwhile Manager had corrected an arithmetical error. He had seen that the total was 85 which was wrongly written as 95 and he scored it through and made it 85 and he scored through total also and made it 318 which was the correct total. Such mistake was committed by the Bishop in totalling the marks for another candidate Sri V.W. Chaufin and this was also corrected by the manager while forwarding the marksheet to the respondent No. 1. It was further stated that the Bishop had initially given only 10 marks to the petitioner in the Church Activity column which was subsequent made 20 and thus real total of marks for the petitioner would be even less than 318. The corrections were made by Rev. Rajendra Prasad not arbitrarily. He had sought the permission of the Government Expert Sri N.P. Baloni who was a member of the Selection Committee and under his permission the corrections were made. As regards the present Manager V.B. Singh, it was stated that he had not taken charge till the date of the counter-affidavit by A.C. David. It was asserted that Rev. V.B. Singh made all efforts to ensure that A.C. David might not join the institution as Principal and the letter could be written by the Bishop on 22.2.97 as he was out of station till 23.2.97. The respondent A.C. David wrote to Sri V.B. Singh for making over charge to him as the Principal, but Sri Singh took up a plea that it could not be done in view of the pendency of the writ petition. It was the legal duty of the present Manager V.B. Singh to issue the appointment letter in favour of A.C. David immediately on receipt of the approval from the respondent No. 1.
8. A counter-affidavit was filed by Rev. V.B. Singh representing the Managing Committee of the Messmore Intermediate College as its Manager. The case of the petitioner H.V.B. Nathan was supported in toto in this counter affidavit and it was asserted that the select list that was signed by the five members should have been acted upon and the then Manager Rajendra Prasad had no business to make any correction therein. It was asserted that on the basis of the selection of the petitioner, as made by the Selection Committee, the Bishop had already attested the signature of the petitioner before the Slate Bank of India. Sri V.B. Singh also claimed to have written to respondent No. 1 not to give approval to any person till a suitable reply was given by the Bishop but respondent No. 1 did not wait. It was stated that the circumstances of the cases indicate that even respondent No. 1 was acting under pressure which prompted him to grant approval in hot haste in violation of the principles of natural justice.
9. Counter-affidavit was also filed by the respondent Rev. Rajendra Prasad, the erstwhile Manager of the institution. He supported the case of A.C. David and made out and indicated what were the criteria of allotment of marks by the members of the Selection Committee. It was stated that as there was an arithmetical error in totalling the marks for the petitioner in the sheet of the Bishop, he made a correction with the permission from the Government Expert and that led to making a correction in the final chart and in placing the candidates in first and second positions. It was the present Manager Sri V.B. Singh who tried to intervene into the matter and making corrections in the photo copies, a claim supporting the case of Nathan was preferred. The Bishop and V.B. Singh were clearly favouring the candidature of H.V.K. Nathan and they were so adamant even after the approval by respondent No. 1 that they refused to issue an appointment letter in favour of A.C. David, as required under the law, on a pretext of pendency of the writ petition.
10. The Bishop was asked to file an affidavit to indicate how the corrections were made by him and in his affidavit, the Bishop D.K. Agarwal indicated that at the time of the interview, he had given marks in the last column of the sheet and it was not necessary to give the break up in the first four columns. But the quality point marks were indicated by him as the columns were there such marks were given through a distribution of points to make the total 95. It was claimed by the Bishop that initially he had given 30 out of 35 for interview, 15 out of 20 for personality. 20 out of 20 for Church activity and 20 out of 25 for suitability but the total did not count to 95. Looking to this mistake, the quality point marks under the head "personality" was made 20/20 and the same under the head "suitability" was made 20/25 thus taking the total to 95. The then Manager was vitally interested in the appointment of Sri A.C. David and he got hold of the uncorrected copy and got it xeroxed and the Bishop annexed with his affidavit a xerox copy of the corrected marksheet. It was stated that certain other mistakes were also corrected by the Bishop almost immediately and the date was also corrected which was initially written as 19.1.97. It was asserted that Rajendra Prasad had committed fraud to create a controversy to favour Sri A.C. David. In reply to this, Rajendra Prasad filed a further affidavit and denied the averments and the allegations made by the Bishop touching his actions. It was stated that quality point marks were required to be given and the claim of the Bishop that he was required only to fill in the last column was not correct. It was further stated that the Bishop with the help of Sri V.B. Singh insisted upon the appointment of H.V.K. Nathan as the Principal and the corrections were made subsequently only with that purpose in mind. It was stated that if at all the Committee of Management desired that Sri H.V.K. Nathan should be appointed as the Principal and there was some mistake in the selection process or the approval, the Committee of Management, of which the Bishop was the Chairman, could have made a representation to the Director of Education as was permitted by law. Instead, the Management was fighting a proxy war through Sri H.V.K. Nathan to challenge the selection process and the approval.
11. Certain rejoinder and supplementary affidavits were also filed on behalf of the petitioner and the Bishop. The Bishop asserted that the selection was made purely on the merits. Rather it was Rev. Rajendra Prasad who conducted himself in a partisan manner as he was interested in the appointment of the respondent No. 3 In his subsequent supplementary affidavit Sri H.V.K. Nathan indicated how J.N. Massey was related to A.C. David. The Bishop was absolutely ignorant about this relationship.
12. On behalf of the petitioner and the Managing Committee, it was urged that the Manager had interpolated with the result-sheet in an uncalled for manner and for an ulterior motive to support the case of A. C, David. It was further argued that when the whole process of selection was based on corrections made at different stages, the whole process was liable to be quashed. In reply the learned counsel for the respondent submitted that through the last submission the petitioner was only to gain as admittedly he was working on the basis of a stop-gap-arrangement and he wanted to regularise such illegal appointment and the authorities had no right to deny appointment under Regulation 18 of Chapter II of the Intermediate Education Act. It was stated that in fact the Managing Committee is really contesting the selection and the approval and they have only staged Mr. H.V.K. Nathan as a writ petition at their instance would not lie in view of alternative remedy of representation before the Deputy Director.
13. The law on the point stands enumerated in Section 16FF. This section deals with selection process concerning minority institutions. Such a process for a general institution has been indicated in Sections 16E and 16F of the Act. For the provisions for minority institutions, in Section 16FF it is stated that notwithstanding anything in sub-section (4) of Section 16E and Section 16F, the Selection Committee for the appointment of a head of an institution administered by a minority shall consist of five members (including its Chairman) nominated by the Committee of Management. One of the members is to be an expert to be selected by the Committee of Management from a panel of experts prepared by the Director of Education. The process of selection would have a procedure that might be prescribed and following such selection, an appointment would be made only after approval by the Regional Deputy Director of Education who is duty bound not to withhold approval when the person selected possessed minimum qualification prescribed and is otherwise eligible. In case the Regional Director of Education did not approve of a candidate selected under the selection, the Committee of Management within three weeks from the date of receipt of such disapproval make a representation to the Director, when it was a question of appointment of a Principal. The order of the Director in this regard would be final. The procedure stands indicated in Chapter II of the Regulations made under the U. P. Intermediate Education Act. Regulation 17 clause (g) requires that after the interview for any post, the Chairman of the Selection Committee will make a note of the proceedings of selection in two copies in which the name of the selected candidate and of two more in the waiting list shall be indicated and upon such note, the Chairman of the Selection Committee and other members shall put their signatures, designations and dates and a copy thereof was to be sent along with the names, qualifications and other particulars in respect of every candidate called for interview, to the authority whose approval is necessary under Section 16FF. If approval is not given within a month of receipt of the papers, approval would be deemed to have been made. Regulation 18 says that within 15 days of the receipt of approval of the authority, the Manager shall, on authorisation under the resolution of the Committee of Management, issue an order of appointment to the candidate to selected and approved requiring the candidate to join duties within ten days of the receipt of such order.
14. The papers that were produced by the learned State Counsel from the office of the Deputy Director of Education, Garhwal Division, may now be looked into. The letter No. 39241-43/96-97 dated 7.2.97 was addressed by the Deputy Director of Education to the Bishop Dr. D.K. Agarwal. It is found that for the selection date 20.1.97, the Manager Rajendra Prasad had sent the papers in which A.C. David was shown as the selected candidate after showing his total marks as 326, making the some cuttings. It is further indicated in this letter that the papers sent by Sri V.B. Singh, the present Manager. H.V.K. Nathan was shown to have received 328 marks and was shown in the first position. There was no cutting in this paper. The Bishop was requested to clarify as to which of these two persons was selected. Copies were sent to Rajendra Prasad and Sri V.B. Singh also. The letter dated 26.2.97 indicates that the Divisional Regional Deputy Director of Education wrote to the Manager of the institution with reference to his letter dated 22.1.97 that the selection of Aditya David was approved under Section 16FF and the Manager was directed to make appointment as per the rules. The letter of Sri V.B. Singh dated 14.5.97 indicates that the Managing Committee had appointed H.V.K. Nathan as an officiating Principal and a request was made in this letter to approve his pay as an officiating Principal. The letter dated 16.2.96 was written by the Regional Deputy Director to Manager in response to the letter No. 125 dated 20.12.95. Through this letter, the Regional Deputy Director indicated that a copy of the advertisement for the post be sent to him. The original papers concerning the interview in six sheets have also been produced by the learned State counsel. The first sheet shows the total marks and it is signed by all the members of the Selection Committee. The total shown against H.V.K. Nathan was 328 initially, it was scored through and was made 318 under the signature of Rajendra Prasad, the then Manager. He was shown to have secured the first position. This remark also was scored through under the signature of the very same Rajendra Prasad. For Aditya David, the total was shown as 326 and two parallel lines are there under this score presumably to highlight the total. His position was shown as second which was scored through and made first under the signature of Rajendra Prasad. The rest five papers are individual marksheets. The sheet No. 1 bears the signature of the Chairman D. K. Agarwal and the date under the signature was 19.1.97 which was palpably a mistake. The chart shows the heads under which quality point marks were to be indicated and a further column is there to give the total. For H.V.K. Nathan the quality point marks under the heads interview, personality. Church activity and suitability are 30, 15. 20 and 20 respectively. The total was, however, shown as 95. It was scored through and made 85 under the signature of Rajendra Prasad. The marks given to Aditya David by Sri D.K. Agarwal under those four columns were 10, 10, 10 and 5 respectively taking his total to 35. It appears from the first sheet as well as the sheet for Rev. D.K. Agarwal that the second man in the serial number, B.B. David, was absent and did not attend the interview. Still then markings are there against each column for this candidate and the same were scored through without signature of anybody. For the candidate V.B. Chaufin the marks were 10. 10, 5 and 10 but the total was shown as 30 which was scored through and made 35 (the correct total) under the signature of Rajendra Prasad. For the sheet of V.B. Singh the marks given to H.V.K. Nathan were 30. 15, 15 and 20 taking the total to 80 out of 100. For A.C. David the marks were 15. 10. 10 and 10 taking the total to 45 out of 100. The third member Sri J.N. Messey gave 15. 10. 8 and 15 to H.V.K. Nathan under the first four columns taking his total to 48. For A.C. David the marks were 30, 18, 18 and 22 taking his total to 88. However, under the column "personality" the figure 8 appears to have been overwritten and it could be read as 10 as well. Similarly in the "total" column the figure 88 has some overwriting in the unit place and it could be read as 80 as well. There is no signature of anybody under these corrections. Rajendra Prasad appears to have given 15, 10, 10 and 10 to H.V.K. Nathan totalling 45 while he gave 32, 15, 19 and 22 to A.C. David taking his total to 88. The Government Expert Sri N. P. Baloni, the Deputy Director (retired), indicated marks of H.V.K. Nathan as 25. 10, 10 and 15, totalling 60. He gave 20, 15, 15 and 20 to Sri A.C. David taking the total to 70. His notes are there in the suitability column for two other candidates Sri V.W. Chaufin and Sri P.P. Chand. He had not allotted any marks on the suitability count to them as Sri V.W. Chaufin had not produced the certificate of training and Sri P.P. Chand had not produced the papers showing his experience as a teacher.
15. From what has been discussed above, it is clear that although the Bishop proposed to say that only the total of the marks was to be mentioned and distribution under the several heads to show quality points was to be made subsequently, the very mention of the columns and the very mention by the Government expert that certain candidates did not produce their papers hence no marks were given, suggest that each column of quality point, marks was to be filled in and then the total was to be counted and the reverse process was not thought of. Had it been the reverse process in vogue, there was no reason why the sheets would have columns for marks in interview, personality. Church activity and suitability. This could not be a form for non-minority institutions as a column was there for a Church activity. It must, therefore, be held that each member of the Selection Committee was supposed to put specific marks under all the aforesaid quality point columns and then the total was to be counted and finally the sum of all totals would determine which candidate was to be selected. It may not, therefore, be accepted that the Bishop had given the total of 95 marks to H.V.K. Nathan first and then distributed it under different heads although not required to do so. The giving of marks under these heads by the Bishop against the absent candidate B.B. David and then scoring through them without any signature also suggests that the main attention of this selection was on the two contesting claimants H.V.K. Nathan and Aditya David only. It is clear from the individual marksheets that while Bishop and Sri V.B. Singh had given high marks to Nathan, they had given very low marks to Aditya David and similarly J.N. Messey and Rajendra Prasad had reversed the process by giving very high marks to Aditya David and very low marks to Nathan. The columns under which such variations could have been there on subjective appreciation were the columns for interview and personality but the, other two columns "Church activity" and "suitability" must have referred to records and there were certainly objective standards for giving marks not depending on subjective assessment of any particular selector. The marksheets indicate that while Nathan was given full marks under these two heads by the Bishop and 15 and 20 by Sri V.B. Singh, Aditya David was given only 10 and 5 by the Bishop and 10 and 10 by Sri V.B. Singh. Similarly J.N. Messey gave to Aditya David 18 and 22 under these two columns while conceding only 8 and 15 to H.V.K. Nathan. Rajendra Prasad had given 19 and 22 to Aditya David under these two columns, conceding only 10 and 10 to H.V.K. Nathan. Assessment of the expert, however, puts the two persons almost at par under these two columns. The expert Sri N. P. Baloni gave 10 and 15 to Nathan (25 out of 45) and 15 and 20 to Sri Aditya David (35 out of 45). The reasons advanced by Dr. D.K. Agarwal to support the total of 95 is not convincing. Similarly the marks given to A.C David by J.N. Messey under the column "personality" and "total" are without the signature of anybody to take the responsibility of corrections. There is no reason why the correction was to be made by the Manager when the papers were prepared by five members of the Selection Committee. The plea of the Manager that he had sought the permission of the expert is also not sustainable. In the papers Annexure-3 to the affidavit of Rajendra Prasad, there is no date on which Rajendra Prasad sought the permission from Sri Baloni. The letter indicates that the original papers were placed before Sri Baloni with the request that Sri Baloni should peruse the same and it was suggested that it would be proper to make correction in the total and ranking should be made accordingly. The last line of the letter suggests that the opinion of Sri Baloni at an early date was sought for (Is sambandh me aap apni raye mujhe sheeghra dene ki kripa karen). The note of Sri Baloni simply states "Prostav" se sahmat" meaning that he had agreed to the proposal. This agreement may not be read as an authorisation as Sri Baloni was an expert and was just another member of the Committee which was being headed by the Chairman Bishop D.K. Agarwal. The manager could and should have brought the matter to the notice of the chairman of the Selection Committee but for reasons best known to him, he wrote to Sri Baloni and made the corrections himself.
16. It was contended that so far the total marks of Aditya David is concerned, it was 326 undoubtedly and five members of the Committee endorsed it. The same argument may be available for the total for H.V.K. Nathan which was shown as 328 authenticated by live members in the result-sheet. The law required that the proceeding of the selection and a note thereon showing the name of the selected candidate and two more in the waiting list was to be prepared and signed by the Chairman of the Selection Committee and its members. This makes it clear that if at all any correction was to be made, it could have been made by the members and the chairman only and not by the manager. This finding, however, may not lead to the conclusion that it was H.V.K. Nathan who was selected as I have already indicated that the process of marking as claimed by the Bishop was not proper and there were reasons to suggest that certain members of the Selection Committee were definitely in favour Shri H.V.K. Nathan and certain other had a bias in favour of Aditya David. An appointment is to be made in terms of approval and before approval. no steps should be taken only upon a selection made by the Committee materials are there, however, to show that steps were taken towards verification of the signature of Nathan before his appointment was approved.
17. It seems that the whole process of selection was bad for mala fide on the part of certain members and it was unfortunate that sanctity of selection was not maintained by its members and the very norm of fair play has been given a go by, by some in favour of the petitioner and by some others in favour of respondent No. 3. It is true that the management had an opportunity to move a representation to the Director. It is also true that the management is mainly supporting the case of H.V.K. Nathan. But merely because the management could do something and did not do it, may not stand as a bar for H.V.K. Nathan to move a writ petition when apparently all norms and modes of fair play have been violated in the present selection process. This selection process and the resulting appointment would only lead to injustice and the selection process and approval of the same are, therefore, quashed.
18. The matter may not be allowed to hang on for an indefinite period. There is admittedly a vacancy for the post of the Principal in the institution of respondent No. 2. The Managing Committee of the institution must initiate a fresh selection process according to law and to complete it within a period of three months from today. The members of the earlier Selection Committee must not be the members of the new Selection Committee again. The petitioner and respondent No. 3 and such other candidates who were interviewed on the last occasion will again be interviewed subject to regulations on this point. After selection, the matter will be forwarded, according to rules, to the Regional Deputy Director of Education who would consider the question of approval according to law and if he approved the selection, an appointment would be made according to law. The writ petition stands allowed on the aforesaid terms.
There will be no order as to costs.
19. The papers submitted by the learned State counsel concerning the office of the Regional Deputy Director of Education be kept in a sealed cover and be made over to the learned State counsel, after the lapse of the appeal period.