JUDGMENT Ashok Bhushan, J.
1. Heard Sri Ashok Khare, learned Senior Advocate for the petitioner, Dr. H.N. Tripathi, learned Counsel appearing for the respondent No. 6 and learned Standing Counsel.
By this writ petition the petitioner has prayed for quashing the order dated 8.9.2007 passed by District Inspector of Schools directing the Committee of Management to pass resolution for the appointment on the post of officiating Principal of a permanent Lecturer. The another order challenged is order dated 6.10.2007 passed by District Inspector of Schools by which Committee of Management was directed to give charge to Suresh Kumar, Lecture (English) and submit necessary papers for attestation of signature of Suresh Kumar.
2. Bhola Nath Sarrof Inter College is a recognized Institution governed by the provisions of U.P. Intermediate Education Act, 1921, U.P. Secondary Education Service Selection Board Act, 1982 and is also receiving grant-in-aid from the State Government. The petitioner was appointed as an adhoc assistant teacher in L.T. grade on 23.12.1982. He was regularized on the post of assistant teacher in L.T. grade w.e.f. 6.4.1991. Due to retirement of Radheylal, Lecturer in Sanskrit, the vacancy on the post of Lecturer in Sanskrit arose. The Committee of Management passed a resolution on 1st July, 1996 for giving adhoc promotion to the petitioner as Lecturer in Sanskrit. The District Inspector of Schools, by order dated 4th July, 1998, approved adhoc promotion and the petitioner claims to be working as Lecturer in Sanskrit w.e.f. 13th July, 1998. The petitioner's qualifications are M.Sc. (Math), M.A. (Economics), M.A. (Political Science), M.A. (Sanskrit), M.A. (Hindi) and L.T. The requisition for filling the post by promotion is claimed to have been submitted by the Committee of Management vide requisition dated 27.12.1997 to the U.P. Secondary Education Services Commission. However, the petitioner has not yet been substantively promoted as Lecturer in Sanskrit. The post of Principal of the Institution fell vacant due to the retirement of Hari Shanker Sharma, who retired on 30th June, 2007. The Committee of Management passed a resolution on 17th June, 2007 deciding to promote the petitioner as officiating Principal. The petitioner joined on the post of officiating Principal on 1st July, 2007 and since then he is working as officiating Principal. The respondent No. 6, Suresh Kumar, was appointed in the Institution as Lecturer in English after the recommendation of U.P. Secondary Services Selection Board on 20.5.2004. Prior to the appointment in the Institution, Suresh Kumar, respondent No. 6, was working as Assistant Teacher in L.T. Grade in Gulkandi Ram Ram Singh Inter College, Nauni, Agra, w.e.f. 8.8.1989. The representation was submitted by the respondent No. 6, Suresh Kumar claiming appointment as officiating Principal. The District Inspector of Schools wrote a letter dated 9th August, 2007 to the Management. The said letter has been replied by the Management by its letter dated 17th August, 2007 claiming that the petitioner is senior to Suresh Kumar and the appointment of Suresh Kumar has already been challenged in the writ petition No. 21780 of 2005 filed by the petitioner. The Committee of Management further claimed that the post on which Suresh Kumar has joined was the post reserved for schedule cast candidate. The District Inspector of Schools, thereafter wrote another letter dated 6.10.2007 asking the Management to give charge to Suresh Kumar on the post of officiating Principal. Challenging these letters dated 9th August, 2007 and 6.10.2007, this writ petition has been filed.
3. Sri Ashok Khare, learned Senior Advocate, appearing for the petitioner, challenging the impugned order of District Inspector of Schools raised following two submissions;
(1) The petitioner is working as adhoc Lecturer in English which has been approved by District Inspector of Schools from 4th July, 1998 and the petitioner's papers for substantive promotion are pending before U.P. Secondary Education Selection Board from 27.12.1997, hence it is none of the fault of the petitioner that his substantive appointment has not yet been approved. The petitioner has experience as adhoc Lecturer of about 9 years and he has been shown senior to the respondent No. 6 in the seniority list in all the records of the Institution. The Committee of Management has rightly passed the resolution in favour of the petitioner for giving him officiating appointment.
(2) The respondent No. 6 does not fulfil the qualification for appointment on the post of Principal of Institution as prescribed in Appendix A Chapter 2 Regulation 1 of U.P. Intermediate Education Act, 1921. The respondent No. 6 does not have four years experience of teaching in class IX to XII. His experience to teach in class 11 and 12 is only of three years, hence he is not eligible for appointment on the post of Principal.
4. Dr. H.N. Tripathi, learned Counsel appearing for the respondent No. 6 refuting the submissions of learned Counsel for the petitioner, contended that petitioner being only an adhoc Lecturer, cannot be treated to be senior to the respondent No. 6, who is substantively appointed as Lecturer in the Institution on 20th May, 2004. It is claimed that the respondent No. 6 had experience of 12 years in teaching the class of IX and X in Gulkandi Ram Ram Singh Inter College, Nauni, Agra, and he fulfilled the qualification as prescribed in Appendix A Chapter 2 Regulation 1 of U.P. Intermediate Education Act, 1921.
5. I have considered the submissions of counsel for the parties and have perused the record.
Section 18 of the U.P. Secondary Selection Board Act, 1982, as amended up to date, provides that "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." According to Section 18 of the Act the senior most teacher in the lecturer grade is entitled for giving ad hoc appointment on the post of Principal. Seniority, thus, is criteria for ad hoc appointment on the post of Principal. Chapter II Regulation 3 of the U.P. Intermediate Act lays down the criteria for determining the seniority of a teacher in a grade.
6. The petitioner's case in the writ petition is that the seniority list was prepared by Prabandh Sanchalak of the Institution on 5th August, 2006. Copy of the seniority list has been filed as annexure-6 to the writ petition. It has been specifically stated in paragraph No. 27 of the writ petition that said seniority list was signed by both; petitioner and respondent No. 6. Annexure-3, indicates that respondent No. 6 has put his signature on the seniority list.
7. The claim of respondent No. 6 is that the respondent No. 6 is senior to the petitioner and is entitled for the post of officiating Principal. The Committee of Management has passed resolution in favour of the petitioner stating that in the seniority list petitioner is shown senior to the respondent No. 6. The reply of the Committee of Management, annexure-9 to the writ petition, specifically mentioned that seniority list was prepared by the then Prabandh Sanchalak on 5.8.2006. In the counter affidavit filed by the respondent No. 6, the seniority list dated 5.8.2006 has been denied. It is claimed that no such seniority list has been prepared or published in the Institution. However, the signature of respondent No. 6 in the seniority list has not been specifically denied. The respondent No. 6 claims to have submitted representation on 29.9.2007 before the Joint Director of Education.
8. The question as to whether seniority list was prepared on 5th August, 2006 and the said seniority list was signed by the respondent No. 6, are the questions which have to be gone into by the competent authority. The petitioner's counsel contended that since no objection was filed to the seniority list by the respondent No. 6, he has no right to claim the appointment on the post of Principal. The submission of learned Counsel for the petitioner is that respondent No. 6 having not objected the seniority list and signed at serial No. 5 whereas the name of petitioner was at serial No. 4, is estopped from challenging the seniority. The question as to whether respondent, No. 6 has signed the seniority list and in case he has signed the seniority list, what its consequence, are the questions which have to be examined by the competent authority. The respondent No. 6 have already represented the Joint Director of Education and the Committee of Management has passed resolution in favour of the petitioner who is at present working on the post of officiating Principal, the ends of justice will be served that the status quo, as existing today, be maintained till the competent authority determines the question of seniority. The respondent No. 6 having already represented the matter to the Joint Director of Education vide its representation dated 29.9.2007, as stated in the letter of Joint Director of Education dated 29.9.2007, ends of justice will be served in directing the Joint Director of Education may, after giving opportunity to the petitioner as well as the Committee of Management, take a decision in the above regard. The said decision shall, however, be taken within a period of three months from the date of production of certified copy of this order.
9. Now remains the contention of the petitioner that the respondent No. 6 is not eligible for appointment on the post of Principal, he having not fulfilling the qualification for the post of Principal as prescribed in Appendix 'A'. The qualification for appointment on the post of Principal is provided in Appendix 'A' which is quoted below:
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There is no dispute that the respondent No. 6 is a post graduate and possess qualification of B.Ed. The challenge is with regard to the experience of four years in class IX to XII. The contention of counsel for the petitioner is that the respondent No. 6 does not possess experience of teaching to class XI and XII of four years, he having joined as lecturer on 20.4.2004, is not eligible. The submission of counsel for the respondent No. 6 is that the experience of respondent No. 6 in class IX, X also fulfils the qualification of four years as required in Appendix 'A'. The words "experience of four years in class IX to XII" have thus to be interpreted as to whether it means experience in class IX,X,XI and XII or experience of class IX and X are sufficient fulfilment of requirement. The qualification for head of the Institution which is recognised as High School and qualification for head of the Institution which is recognised as Intermediate College, are same. There is no difference in the qualification with regard to the Principal of High School or Intermediate College. In case interpretation put by counsel for the petitioner is accepted, a teacher, who fulfils the four years of experience of teaching in High School, can never be eligible for appointment as Principal of High School since he does not possess experience of class XI and XII. U.P. Secondary Education Services Selection Board Rules, 1998 provides for selection on the post of Principal of a recognised Institution. Rule 12 of the U.P. Secondary Education Services Selection Board Rules, 1998 provides procedure for direct recruitment on the post of Principal. Rule 12 Sub-rule (6) which is relevant in the present case is quoted below:
12. Procedure for direct recruitment.-
(1) ...
(2) ...
(3) ...
(4) ...
(5) ...
(6) The board, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and other Backward Classes of citizens in respect of the post of teacher in lecturers and trained graduates grade, call for interview such candidates who have secured the maximum marks under Sub-clause (4) above/and for the post of Principal/Headmaster, call for interview such candidates who have secured maximum marks under Sub-clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies:
Provided that in respect of the post of Principal or Headmaster of an institution the Board shall also in additional call for interview two senior/most teachers of the institution whose names are forwarded by the Management through Inspector under Clause (b) of Sub-rule (2) of Rule 11.
10. In case the post of Principal of an Institution which is up to the High School has been advertised, Rule 12 Sub-rule (6) provides that two senior most teachers of the Institution be forwarded by the Management under Clause (b) of Sub-rule (2) of Rule 11. Rule 11 (2)(b) is quoted below:
11. Determination and notification of vacancies.-
(1) ...
(2) ...
(a) ...
(b) With regard to the post of Principal or Headmaster, the Management shall also forward the names of two senior-most teachers, along with copies of their service records (including character rolls) and such other records or particulars as the Board may require, from time to time.
Rule 11(2)(b) explanation of Rule 12(6) provides that in case of High School the name of two L.T. Grade teachers who has highest grade in the Institution has to be forwarded for his direct recruitment on the post of Principal. The qualification for the post of Principal of High School and Intermediate College has no difference. If the submission is accepted that four years experience is required in all the classes from IX to XII, the teacher working in L.T. Grade, who obviously does not possess any experience of teaching the class of XI and XII, will be ineligible, whereas Rule 11 and 12 of U.P. Secondary Education Services Selection Board Rules, 1998 mandates the consideration of two senior most teachers. Thus, the teacher having four years experience of class IX and X is also eligible for appointment on the post of Principal. Any other interpretation shall not be inconsonance with the scheme of the selection on the post of Principal as contemplated under the U.P. Intermediate Education Act, 1921, U.P. Secondary Education Service Selection Board Act, 1982 and U.P. Secondary Education Services Selection Board Rules, 1998.
11. The question of qualification as prescribed in Appendix 'A' came for consideration before the Division Bench in the case of Anand Narain Singh v. U.P. Secondary Education Services Selection Board, Allahabad and Ors. reported in 2003(2) BESR 899. In the said case advertisement was issued by the selection board advertising the post of Principal of an Intermediate College. The advertisement was restricted to the effect that only those candidates can apply, who have teaching experience as lecturer or Headmaster of High School. A teacher who was only L.T. Grade was not eligible to apply for the post of Principal of Intermediate College. The Division Bench ultimately allowed the petition and held that advertisement was not inconsonance with the qualification prescribed under Appendix 'A', while considering the said issues phrase "experience of four years in class IX to XII also came for consideration." In paragraphs No. 46, 48, 56 and 83 the Division Bench held:
46. The learned Advocate General submitted that the essential minimum qualification for teacher including the heads of the institutions of Intermediate and High School under the Intermediate Act are prescribed in Appendix A. The minimum age prescribed in Appendix A is 30 years. The dispute is regard the nature of experience. Under Appendix A, a candidate should have four years' experience of teaching Class IX to XII, Under the Government Order, heads of the institutions are required to take some classes in the institution and they should have necessary experience of teaching Classes XI to XII. The advertisement indicates the minimum qualification for the post of the head of the institution. Rule 5 of the Rules is headed as "Academic Qualification". It states that a candidate for appointment for the post of teacher must possess qualification specified in Regulation 1 of Chapter II of the Regulations framed under the Intermediate Act. Rule 12 of the Rules is headed as "Procedure for Direct Recruitment". Rule 12(5)(11) talks about 20% marks are to be given for experience. Note to Rule 12(5) states that for calculating experience, the service rendered as Head Master of Junior High School or Assistant Teacher only, shall be counted for the Head Master of a High School and for calculating experience for Principal of Intermediate College, service rendered as Head Master of High School or as a Lecturer shall only be counted. He further submitted that it is correct that Rule 5 of the Rules adopts the qualification specified in Appendix A but this Rule is headed as 'Academic Qualification". He also submitted that it is also correct that the Note appearing in Rule 12(5) is for the purposes of calculating experience more than the required experience. Marks can only be awarded by experience more than the required experience. For the post of heads of institution, the Note to Rule 12(5) of the Rules has modified the conditions of qualifying experience mentioned in Appendix. Section 32 of the principal Act, as amended by the U.P. Act No. 25 of 1998, provides that the provisions of the Intermediate Act and the Regulations made thereunder, will continue in case they are not inconsistent with the principal Act and the Rules, Note to Rule 12(5) prescribes experience for the post that is different from Appendix A. The nature of experience mentioned in Appendix A is inconsistent with the Note to Rule 12(5) and, thus, it no longer continues and as such it stands modified by the Note to this extent. He submitted that it is wrong to say that any person who has essential qualification, has been excluded from consideration or any person who ought not to be considered, has been considered for the selection. Thus, the selection procedure is not vitiated. The Assistant Teachers teach in Classes IX and X, they do not teach Classes XI and XII. The State could legitimately exclude the Assistant Teachers from being considered as head of an Intermediate institution (Upto Class XII). There is neither any illegality nor any discrimination and this Note to Rule 12(5) cannot be struck down. He further submitted that the appellants who are one of the two seniormost teachers, have no grievance as they have been automatically called for interview in view of Rule 11(2)(b) and its Explanation. Rule 11(2)(b) states that with regard to the post of the Principal and Head Master, the management shall also forward the names of two seniormost teachers for consideration and selection to the post of the Principal of the institution and "seniormost teachers" means the seniormost teachers in the post of higher grade in the institution irrespective of total service put in the institution. It is further submitted that no Lecturer (direct applicant) has challenged the advertisement. Thus, the senior most teachers have no grievance in this regard. He, thereafter, submitted that the advertisement issued by the Boards is valid and the learned Single Judge has rightly held that the advertisement is valid.
48. From a reading of the aforesaid provisions, it is clear that under Rule 5 of the Rules, the Board has adopted the qualifications mentioned in Serial No. (1) of Appendix A for the post of the head of institution. It requires a post graduate degree with 4 years' teaching experience of Class IX to XII. The Note to Rule 12(5) prescribes that for calculating experience, the service rendered as Head Master of a High School or as a Lecturer shall be counted for the selection of a Principal. Thus, it excludes the taking into consideration of teaching experience of Class IX and X as the Lecturers do not teach Class IX and X. Inviting applications and prescribing minimum qualification is one thing and awarding marks on the basis of teaching experience for selection of Principal is another. By prescribing higher teaching experience of a Lecturer or of a Head Master of a High School for selection on the post of the Principal, the Board has, in fact, restricted making of application from all those eligible candidates who do not possess teaching experience of a Lecturer or a Head Master of a High School. Thus, those persons who have only teaching experience of Class IX and X and are otherwise fulfilling the minimum qualification prescribed in Appendix A, have been excluded from the zone of consideration. It may just be possible that there may be cares where a person who has a teaching experience of more than four years of Class IX and X, may have excellent academic record, a doctorate degree and published research work also and in accordance with Rule 12(5) may be able to secure higher marks than those persons who have teaching experience of a Lecturer or a Head Master of High School. Thus, the advertisement which restricts the applications from only those persons who had teaching experience of 4 years as a Lecturer or a Head Master of a High School, is contrary to the minimum qualification prescribed in Appendix A and adopted by Rule 5 and is wholly illegal and can not be sustained.
56. Applying the principle laid down by the Hon'ble Supreme Court to the facts of the present case we find that the State Government had specifically framed the Rules and under Sub-rule (5) of Rule 12 of the Rules, the qualifications laid down in Appendix A of Regulation 1 of Chapter II of the Intermediate Act has been adopted for appointment on the post of teachers which includes Principal. For the post of Principal, it provides 4 years' teaching experience of Class IX to XII. It does not provide teaching experience of 4 years as a Lecturer only. Thus, the Board which had provided 4 years' teaching experience as a Lecturer in the advertisement has exceeded its jurisdiction and the same is contrary to the law. We are therefore, of the opinion that the learned Single Judge was not correct in holding that the advertisement is valid.
83. In view of the foregoing discussions, we are of the considered opinion that the advertisement issued by the Board prescribing teaching experience of 4 years as Lecturer for the post of the Principal of an Intermediate College, was contrary to the academic qualifications prescribed in Appendix A of Regulation 1 of Chapter II of the Intermediate Act, as adopted under Rule 5 of the Rules. As the advertisement has been challenged by two persons who are only Assistant Teachers and not Lecturers and who doe not possess the teaching experience of Class XI and XII but otherwise possess the minimum qualification as prescribed in Appendix A in Regulation 1 of Chapter II of the Regulations framed under the Intermediate Act and have been denied the opportunity to apply for the post of the Principal, we are left with no other option but set aside the advertisements in question insofar as it relates to the selection on the post of Principal. The selections made pursuant to the said advertisement cannot be sustained and are hereby set aside.
From the observation of the Division Bench as quoted above it is clear that Division Bench accepted the submission that four years experience of class IX to XII also means experience of four years teaching of class IX and X.
12. There is one more reason due to which the submission of petitioner's counsel cannot be accepted. In case interpretation as put by the learned Counsel for the petitioner is accepted, the person who is directly appointed as lecturer in Intermediate College will never be eligible for the post of Principal of High School since he has no experience of class IX and X. Learned Counsel for the petitioner sought to reply the above by saying that the cases of lecturer are covered by item No. 2 where first or second class post graduate degree along with the teaching experience of ten years of Intermediate class are made an alternation qualification. The said submission cannot be accepted. The qualification at item No. 2 is qualification which does not require any training whereas at item No. 1 four years experience is required of a trained teacher. A lecturer, who is not a trained teacher is treated eligible, who has ten or fifteen years teaching experience as the case may be. If interpretation put by the learned Counsel for the petitioner is accepted, a trained lecturer will be eligible for the post of Principal of High School and Intermediate College who completes ten or fifteen years experience, whereas a trained teacher who has experience of class IX and X may became eligible by four years experience. Such discrepancy and distinction was never contemplated by the rule making authority.
13. In view of the forgoing, the submission of petitioner that experience of four years in class IX and XII means experience of four years in all the classes from IX to XII, cannot be accepted. Experience of L.T. Grade teacher of class IX and X of four years, is also eligible for the post of Principal. The Division Bench judgment in Anand Narain Singh (Supra) fully supports this view. Thus, the submission of the petitioner that the respondent No. 6 is not eligible, cannot be accepted and it is held that the respondent No. 6 is fully eligible for the post of Principal.
14. In the result, the writ petition is disposed of directing the Joint Director of Education to take decision on the representation dated 29.9.2007 of respondent No. 6 after giving opportunity to the petitioner and Committee of Management. Such decision shall be taken within a period of three months from the date of production of certified copy of this order. Till such decision is taken by the Joint Director of Education, the status quo as existing today with regard to the functioning of the post of Principal be maintained so that smooth running of the Institution be not affected.
Order accordingly.