JUDGMENT R.R.K. Trivedi, J.
1. This Special Appeal has been preferred by respondent No. 4 of Civil Misc. Writ Petition No. 28451 of 1991 against the order dated 8th March, 1994, passed by the learned Single Judge by which writ petition has been allowed and the panel dated 26th August, 1991 prepared by U.P. Secondary Education Service Commission, Allahabad (here-in-after referred to as 'Commission'), has been quashed so far as it related to Saheed Madhuban Karm Inter College, Khoribari, district Deoria (here-in-after referred to as 'College), respondent No. 4 of the writ petition, appellant herein, was selected as Principal. For the sake of clarity respondent No. 1 and the appellant in this appeal shall be referred to as petitioner and respondent No. 4.
2. The facts, in short, giving rise to this appeal are that Sri Rama Kant Mishra, Principal of the College, attained the age of superannuation and retired from the post on 30th June, 1988. The vacancy was notified to the Commission. However, as the candidate could not be recommended for appointment, petitioner was appointed ad-hoc Principal w.e.f. 1st July, 1989 by the Committee of Management which was approved by District Inspector of Schools, Deoria on 10th August, 1989. The Commission initiated proceedings for selection of the candidate and the post was advertised by Advertisement No. 1 of 1989, Cl. (iii) of sub-rule (1) of Rule 4 of the U.P. Secondary Education Service Commission Rules, 1983 (here-in-after referred to as 'Rules') requires that in regard to the post of head of the institution, the management shall also forward the names of two senior most teachers to the Commission alongwith copies of their service record (including character rolls) and such other records or particulars as the Commission may require from time to time. The District Inspector of Schools by his letters dated 15-3-1989. Annexure-2 to the writ petition and letter dated 19th April, 1989, Annexure-3 to the writ petition required the management to forward the papers including service record etc. in compliance of the aforesaid Rule 4 (l)(iii) of the Rules. The Interview Board of the Commission held interview of the candidates on 24th April, 1991 and published the panel on 28th June, 1991 by which respondent No. 4 was declared selected. Aggrieved by the aforesaid selection of respondent No. 4, petitioner filed Civil Misc. Writ Petition No. 28451 of 1991 challenging the selection on the ground that the service records including character rolls and other relevant records pertaining to petitioner and respondent No. 4 were not placed before the Interview Board. The Manager informed the District Inspector of Schools that the service records were not available in the record of the Commission. The District Inspector of Schools thereafter sent all the service records vide his letter dated 3rd May, 1991 which was received by the Commission on 6th May, 1991 i.e. selection proceedings were over. It was also claimed that the functioning of the Commission was very doubtful and on the ground of which State Government vide its order dated 17th July, 1991 directed the authorities not to make any appointment on the basis of selection held by Commission. It was also alleged by the petitioner that respondent No. 4 was not granted exemption of the qualification of training by the competent authority hence he was not qualified for the post. In absence of the relevant service records, respondent No. 4 was wrongly assumed senior and has been illegally selected. In paragraph No. 15 of the writ petition, it was also claimed that the Manager of the Committee of Management was always ready to harm the petitioner and firstly he deprived him of the opportunity of being appointed as ad-hoc Principal on 1st July, 1988 and further petitioner's service could not be regularised as the Principal in pursuance of the Ordinance No. 28 of 1991 issued on 6th April, 1991. In Writ Petition, two counter affidavits were filed on behalf of Commission by Sri T.N. Upadhyay, Superintendent Grade-2 of the same date. In the counter affidavit sworm at 11.30 A.M. which is styled as counter affidavit, it has been stated that the service records of the petitioner and respondent No. 4 were received alongwith letter dated 28.8.1989 of the Deputy Director of Education. However, the District Inspector of Schools vide his letter dated 15-2-1990, again required the record for fixation of pay scale of both petitioner and respondent No. 4. The papers were, accordingly, sent back by Commission vide letter dated 24th February, 1990. The service records etc. were again sent by District Inspector of Schools vide letter dated 30th March, 1990, which were considered on 24th April, 1991 by the Interview Board. It has been further said in the counter affidavit that the Ordinance No. 28 of 1991 was not applicable of the post of Principal. Respondent No. 4 possessed requisite qualification and in view of the 15 years past service the training qualification stood exempted under law. The letter dated 3rd May, 1991 of the District Inspector of Schools alongwith necessary papers were forwarded on the request of the Manager and rest of the facts have already been explained in paragraph No. 9 of the counter affidavit. It has been further stated that the petitioner was given 30 marks as per guide-lines for his administrative experience. It was stated in the second counter affidavit of the same date that the senior most teachers are awarded marks at the time of interview for their administrative capacity. It has been said that the records relating to petitioner was made available by District Inspector of Schools to Commission vide his letter dated 30th March, 1991 and it was considered by Commission. Selection has been done strictly in accordance with the guide-lines which have been approved by this Court in many writ petitions. Service record of the petitioner has been considered by the Commission.
3. Counter affidavit has been filed by Prabhu Nath Rai, Manager of the College on behalf of respondent No. 2. He has stated that necessary papers relating to both petitioner and respondent No. 4 were forwarded by the committee of management which was received in the office of District Inspector of Schools on 5-6-1989. In paragraph No. 13, it has been stated that he was present in the office of Commission on 24th April, 1991 at 9.30 A.M. He was informed by Shri K.K. Yadav, Adhiyachna Clerk that the service records pertaining to petitioner and respondent No. 4 have been misplaced and it could not be made available to the Board before which the selection proceedings commenced at 9.30 A.M. when he came back to Deoria on 27.4.1991, he apprised District Inspector of Schools of this fact and requested him to send all the papers to the Commission again as they were not available. It has been further said that the relevant records were already sent to District Inspector of Schools for communicating it to the Commission on alongwith letter dated 18th March, 1991.
4. On behalf of District Inspector of Schools, Senior Clerk Lalji Yadav has filed a counter affidavit. In paragraph No. 11, it has been admitted that the information was received from the Manager that service record was not available before the Commission and consequently on 3rd May, 1991 again the copies of all the records were sent. Regarding rest of the allegations, it has been stated that they need no reply.
5. Counter affidavit was also filed on behalf of respondent No. 4, appellant herein, in which precisely it was said that Civil Misc. Writ Petition No. 18935 of 1991 was filed by petitioner for treating him permanent Principal in view of the Ordinance No. 28 of 1991 w.e.f. 6-4-1991 which was dismissed as withdrawn on 26th August, 1991. The present writ petition is not maintainable. In paragraph No. 10, it has been stated that the District Inspector of Schools vide his letter dated 15th March, 1989 and 19th April, 1989 directed the Manager to forward the papers. The papers were forwarded by Manager on 8-5-1989 and were received in the office of District Inspector of Schools on 10-5-1989. It has been further said that the petitioner is not entitled for the benefit of Ordinance No. 28 of 1991 dated 6th April, 1991 as it does not apply to Principal as the relevant date is 31st July, 1988. It has also been said that he was fully qualified as he had already put in more than 20 years of service and he was entitled for exemption from qualification of training under law. Petitioner appeared in interview for selection alongwith five other candidates. The commission has selected petitioner after taking into consideration all relevant facts and the allegation to the contrary are not correct. Regarding other allegations, which were with regard to not placing of the record showing administrative experience of two years as ad-hoc Principal and other service records, it has been said that the allegations made in this paragraph of the writ petition are not within the knowledge of the deponent, hence he cannot give any reply. It has been further stated that the petitioner alongwith others participated in selection proceeding without any objection and is not entitled to challenge the selection on basis of the Government order dated 17th July, 1991, no adverse inference can be drawn against the Commission. Rejoinder affidavits were filed by the petitioner. Learned Single Judge after hearing parties allowed the writ petition vide impugned judgment dated 8th March, 1991 and quashed the panel published by the Commission on 26th August, 1991 so far as it related to the College. Respondents were restrained from interfering with the working of petitioner as ad-hoc Principal of the College and it was left for Commission to hold fresh selection.
6. Against the order of the learned Single Judge appellant filed Special Appeal No. 274 of 1994 which was dismissed by the Division Bench by order dated 18th March, 1994. Then a review application was filed on 15th April, 1994 which was rejected by a Division Bench on 1lth April, 1996. The aforesaid two orders were challenged before the Hon'ble Supreme Court in Civil Appeals No. 3110 and 3111 of 1997. The appeals were allowed by Hon'ble Supreme Court on 25th April, 1997, operative part of the judgment of Hon'ble Supreme Court is being reproduced below:-
"Having given our anxious consideration, we find that there was already an affidavit filed by the Commission, before the learned Single Judge pointing out that the relevant service record of the contesting candidates was received on 30th March, 1990 and that was scrutinised and not only that but even maximum 30 marks were assigned to respondent No. 1 in the light of his service record. Unfortunately, this aspect of the matter was totally missed by the Division Bench of the High Court which decided the appellant's appeal. In these circumstances, in our view this was a fit case where the High Court should have reviewed its earlier order. But unfortunately, the review petition was also dismissed. Consequently, the only proper order which can be passed is to quash and set aside the order of the Division Bench dated 18th March, 1994 as well as the order in review petition dated 11th April, 1996 and to restore the writ appeal on the file of the High Court with a request to the Division Bench of the High Court to decide the writ appeal afresh after hearing the learned Counsel for the partite in accordance with law. We order accordingly. We are informed that respondent No. 1 is already functioning as the Principal. He will naturally abide by the result of the remanded writ appeal.
As the contest is about the Principalship of an educational institution, we deem it fit to request the High Court to dispose of the matter as expeditiously as possible.
The appeals are allowed accordingly. No order as to costs."
This is how Special Appeal No. 274 of 1994 has come before us for deciding afresh.
7. After the judgment of Hon'ble Supreme Court, an application dated 14th July, 1997 alongwith supplementary affidavit has been filed on 12th January, 1999 with the prayer to take the facts and documents mentioned in the accompanying supplementary affidavit on record and to treat them as part of Civil Misc. Writ Petition No. 28451 of 1991 and the Special Appeal. A supplementary counter affidavit opposing the admission of facts and documents has been filed. A supplementary rejoinder affidavit has also been filed on the same date.
8. Before we enter into "consideration of the merits of the appeal, the application filed by the appellant for taking additional facts and documents mentioned in the supplementary affidavit on record has to be decided.
9. We have heard Sri H.N. Pandey, learned Counsel for the appellant, Sri Ashok Khare, learned Counsel for respondent No. 1, learned Standing Counsel for respondent No. 4 and Sri A. K. Yadav for respondent No. 2.
10. So far as additional facts-are concerned for which request has been made to make them part of the writ petition in effect, it amounts to seek amendment in the writ petition and so far as the application relates to the prayer for taking documents on record it is for admitting additional evidence, at the appellate stage. Normally such distinct and independent prayers should have been made through separate applications as the law and the considerations for grant of two prayers are different and not same. Part of the prayer relates to amendment of pleadings while the other part relates to the admission of evidence in support of the facts stated in appeal. There is also no doubt about the legal position that both the aforesaid reliefs cannot be claimed as of right at the appellant stage. However, ignoring the aforesaid technical aspect, we are considering and treating the application for admitting additional evidence. Rule 27 of order XLI of Code of Civil Procedure contains circumstances in which the party may be entitled to produce evidence in the appellant Court. The ground stated are thus:-
"(i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(ii) the party seeking to produce additional evidence, establishes that not withstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of the diligence, be produced by him at the time when the decree appealed against was passed, or
(iii) The appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause."
Sub-rule (2) of Rule 27 aforesaid further requires that where ever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. The aforesaid conditions contained in Rule 27 are based on general principle governing admission of additional evidence at the appellate stage. In the circumstances, though the provisions of Code of Civil Procedure are not applicable to writ proceedings the provisions contained in Rule 27 of Order XLI of Civil Procedure Code may be considered as general principle for admission of additional evidence in writ appeal like present one.
11. So far as conditions No. (i) and (ii), mentioned above, are concerned, they are not relevant for consideration as the appellant has not made averments in the supplementary affidavit that such documents were filed before the learned Single Judge but were refused. It has also not been said that in spite of the exercise of due diligence he could not produce, documents filed at the appellate stage, at the time matter was pending before the learned Single Judge. In supplementary counter affidavit prayer for admitting additional evidence and additional facts has been vehemently opposed on the ground of delay and genuineness of the documents and correctness of the facts stated had been challenged. It has been stated that the facts pleaded and the documents filed were also placed alongwith review petition. It has also been said that these documents were also filed before Hon'ble Supreme Court at the time of filing special leave petition. From perusal of the review application and the application for interim relief and the affidavit filed in support thereof, it is clear that the present documents and the facts stated were filed alongwith and mentioned in review application. Hon'ble Supreme Court has observed that it was a fit case where the High Court should have reviewed its earlier order. Though there is no indication regarding material filed alongwith special leave petition however, in view of the observations of the Hon'ble Supreme Court regarding review petition, we feel that Hon'ble Supreme Court desired that documents and the facts stetted may be considered by this Court while deciding the appeal afresh. In the facts and circumstances mentioned above, in our opinion, there is substantial cause for admitting the additional evidence and the facts on record. The application is, accordingly, allowed.
12. Before learned Singles Judge only two questions were passed on behalf of petitioner. The first question pressed was that petitioner did not possess requisite teachers training certificate which was necessary qualification for appointment as head of institution. This question was decided against petitioner and before us also nothing has been argued by the parties on this question. The second question pressed before the learned Single Judge was that the requisite service records including character roll of the petitioner and respondent No. 4 to assess their respective administrative and other abilities and experience had not been examined by the Commission on the date of selection which resulted in inadequate awarding of marks to the petitioner and selection was in breach of the provisions of U.P. Act No. 5 of 1982 and the statutory Rules framed there under. This submission on behalf of petitioner was accepted by learned Single Judge.
13. Sri H.N. Pandey, learned Counsel for the appellant submitted before us that the record was available before the Commission and it was examined by the Interview Board and both petitioner and respondent No. 4 were awarded 30 marks each on basis of the record. It has further been submitted that the writ petition filed by respondent No. 4 was not legally maintainable as earlier Civil Misc. Writ Petition No. 18935 of 1991 was dismissed as withdrawn on 26th August, 1991. Learned Counsel, in support of his submission, has placed reliance in Division Bench Judgment of this Court in cases of Indra Raj Singh Yadav v. U.P. Madhaymic Shiksha Sewa Ayog, Allahabad and Ors., 1994 U.P.L.B.E.C. 510 and Forward Construction Co. and Ors. v. Prabhat Manual (Regd.) Andheri and Ors., AIR 1986 SC 391.
14. Sri Ashok Khare, learned Counsel for petitioner submitted that the alleged date, 9th April, 1990 on which it is alleged that the service records were received by the Commission, was not disclosed earlier. It has also been submitted that the Commission has not disclosed this date in the counter affidavit or supplementary counter affidavit and this date disclosed by respondent No. 4 at this late stage cannot be accepted. Learned Counsel for respondent No. 1 has also placed before us the finding recorded by the learned Single Judge on this question. Learned Counsel has further submitted that according to the guide-lines service record of senior most teachers is not examined by the Interview Board but by two members of the Commission after the interview is over. Learned Counsel has assailed this procedure as contrary to the provisions of the Act and the Rules and has further submitted that even if the record was available as it was submitted that even if the record was available as it was not placed before the Interview Board at the time of selection and it vitiated the selection proceeding. The examination of the record by two members subsequently cannot be substitute of the examination of service record by the Interview Board. For this submission, learned Counsel has placed reliance on following cases:-(i) Janki Prasad v. State of Jammu & Kashmir, AIR 1973 SC 930, (ii) Smt. Santosh Chaudhary v. U.P. Secondary Education Services Commission and Ors., (1986) 2 UPLBEC 1063, (iii) U.P. Secondary Education Services Commission v. Santosh Chaudhary, 1990 (Supp). SCC 711. Learned Counsel for the petitioner has further submitted that Civil Misc. Writ Petition No. 18935 of 1991 was dismissed as withdrawn after the present write petition was filed and the reasons were indicated in the application for withdrawing the writ petition which was allowed by the Court. Thus in the circumstances, cannot be said that the writ petition was not legally maintainable. It has also been submitted that the cause of action for filing the present writ petition was entirely different and writ petition was legally maintainable. Learned Counsel has lastly submitted that the petitioner was, serving as ad-hoc Principal since 1st July, 1989 without any break and his services were regaularised by operation of law under Section 33-A(l-A) of U.P. Secondary Education Service Commission Act, 1982 w.e.f. 6th April, 1991. As vacancy ceased to exist the panel of selected candidates recommended by the Commission could not be given effect. Learned Counsel has placed reliance in case or Munishwar Dutt Pandey v. Ranjeet Tiwari and Ors., JT 1996 (1) SC 795 : (1997) 1 UPLBEC 199 (SC).
15. After hearing parties, learned Single Judge recorded findings which are very materiel for correctly appreciating the dispute between the parties. The learned Single Judge held as under:-
"A perusal of the version of the petitioner in the writ petition as well as of the Commission and of the Inspector of Schools and the Manager of the Institution, all of whom have been referred to above, do certainly indicate that the service record of the petitioner no doubt was sent by the Manager of the Institution to the Commission through the Inspector of Schools, was certainly not available before the Commission on the date and time of the interview. Petitioner's version in this respect finds full corroboration from the version given by the Manager of the Institution which at its turn also gets corroboration from the letter of the Inspector of Schools dated 3-5-91 which was received in the Commission on 6-5-91 wherefrom it is proved that the service record of the petitioner was received in the Commission on 6-5-91 which obviously was after the interview for selection on the post was over. Silence of the Inspector of Schools in this respect also gives credence to the version of the petitioner to the effect that his service records which under the Rules is required to be available before the Commission at the time of the interview under Rule 7 of the Rules, was not available and the marks were awarded to him on random basis rendering the selection proceedings wholly illegal."
16. We have thoroughly considered the submission of the learned Counsel for the parties. As clear from the finding recorded by the learned Single Judge, there is not doubt that the service record of the petitioner and the respondent No. 4 was sent to the Commission by the management through District Inspector of Schools It appears that the service record of both the candidates was received in the office of the Commission. However, it was sent back to the District Inspector of Schools in pursuance of his letter dated 15-2-1990 as it was required for purposes of fixation of pay scales. The record was again required to be submitted and it was sent to the Commission alongwith the letter of the District Inspector of Schools dated 30th March, 1990. The existence this letter has been disclosed in the counter affidavit filed by the Commission. However, the actual date of the receipt of the record has not been mentioned. The date 9th April, 1990 has now been disclosed by the respondent No. 4 by filing supplementary affidavit. It is true that this date does not find corroboration from any other record or the counter affidavits filed by Commission and District Inspector of Schools. However, in our opinion, as the interview was held on 24th April, 1991 i.e. more than after a year, we have no reason to doubt that the record, in all probability, must have been received by the Commission alongwith letter dated 30tb March, 1990. However, the real question is whether the record was actually placed before the Interview Board or not. The learned Single Judge, as is clear from the finding mentioned above, has held that the record though was received by Commission but was not placed at the time of interview. Thus it has to be determined whether the record was actually placed before the Interview Board or not? In this regard, counter affidavit filed by the Manager of the institution is very relevant. This counter affidavit is of the date 11th October, 1991. In paragraph No. 13 of the affidavit, it has been said that on 24th April, 1991, Manager was present in the office of Commission at 9.30 A.M. and he enquired about the fact whether service record, character roll and other documents pertaining to petitioner and respondent No. 4 were available in the office of Commission. He was informed by K.K. Yadav, Adhiyachna Clerk that the service records, character roll and other documents of the petitioner and respondent No. 4 have been misplaced and it has not been restored in the office record and could not be made available to the Interview Board, proceeding before which commenced at 9.30 A.M. He has further stated that he went back to Deoria and informed District Inspector of Schools on 27th April, 1991 about this fact that the service record etc. was not available in the Commission and he requested his to forward another copy of the service record, character roll and seniority list etc. to the Commission. Alongwith writ petition, letter of District Inspector of Schools addressed to the Secretary of Commission has been filed as Annexure-5 which was received in the office of the Commission on 6-5-1991. In this letter, District Inspector of Schools has said that the Manager of the College has informed this office that the service record of the two senior most teacher of the College, which ware sent to the Commission, are not available in the office of the Commission. Second paragraph of the letter states that in the circumstances, required documents are being sent again, in the prescribed form alongwith photos of the petitioner and respondent No. 4. It further states that the confidential report regarding petitioner about his work and conduct as ad-hoc Principal for two years including the inspection report of the District Inspector of Schools is also being sent. In the counter affidavits filed by the Commission nothing has been said about the aforesaid facts. On the other hand, the receipt of the record and letter of District Inspector of Schools has been admitted. The clerk concerned Sri K. K. Yadav was specifically mentioned in the counter affidavit filed by the Manager and in the circumstances it was necessary on the part of the Commission to file his affidavit to controvert the facts stated by the Manager of the College. In paragraph No. 10 of the counter affidavit filed on behalf of the Commission, the existence of the letter dated 3rd May, 1991 sent by District Inspector of Schools has been admitted but only this much has been said that facts have been mentioned in paragraph No. 9. However, in paragraph No. 9, there is no mention of letter dated 3rd May, 1991 and its contents. It has been said that the record was placed before the Interview Board. In our opinion, in the circumstances, stated above, the counter affidavit filed by the Commission could not inspire confidence that the service records of two teachers were actually placed before the Interview Board. In paragraph Nos. 9 and 10 contradictory stand has been taken about awarding of the marks on administrative capacity which has been considered in detail by learned Single Judge and the case set up by the Commission has not been accepted. There is yet another reason for not accepting the case that the service record was actually available before the Interview Board. Alongwith affidavit dated 17th March, 1994 filed in support of the stay application respondent No. 4 filed a copy of the guide-lines as Annexure-1. In the said guide-lines under the heading "Assessment during the course of Interview it is provided that all the candidates will be assessed in nine categories. The categories and their prescribed range shall be as under:-
3. If the entries for the period for which record is available are good then the marks which have been obtained as a result of the exercise done afterwards or the marks obtained by them as in the case of the marks obtained in the interview by the candidates from open market, whichever is higher in the interest of the candidates, shall be taken into account and the merit of the concerned teacher shall be drawn accordingly In case of the record not found to be satisfactory then the marks which are lesser under both the conditions shall be taken into account and the merit of the concerned teacher shall be drawn accordingly.
4. The candidate who has been placed in category C as a result of the interview shall be assessed as one having qualifications below the basic qualifications prescribed for interview and shall not be able to be selected in any circumstances.
Points to be considered at the time of interview.
1. Personality.
2. Knowledge.
3. Knowledge of the modern educational ideologies and its problems and remedial view point.
4. General knowledge.
5. Administrative capability with regard to school/institutional management.
6. Display of self-confidence and effective voice.
7. Curricular and specific achievement of regional or state level."
17. From the above quide-lines, it is clear that the placing of the record before the Interview Board was necessary for proper assessment of the candidates concerned. The counter affidavit filed on behalf on Commission cannot be believed as it says that to senior most teachers, marks are not required to be given separately on administrative capability. Alongwith supplementary rejoinder affidavit, respondent No. 4 has also filed a copy of the result-sheet allegedly prepared on 24th April, 1991, a perusal of which shows that both petitioner and respondent No. 4 were given 30 marks each which were with regard to their length of service as provided in quide-lines. No other marks as provided in the guide-lines were awarded. Awarding of 30 marks to both does not demonstrate that they were awarded on the assessment of the service record, character roll etc, but the marks were given only counting the period of service. The learned Single Judge after perusal of original record has considered this aspect of the case in detail. It is manifest from record that achievements of petitioner in service as officiating Principal could not be taken into account. Hon'ble Supreme Court in case of Janki Prasad v. State of Jammu & Kashmir (supra), has held that interview alone cannot be a sufficient test for selection of candidate for higher post like Headmaster in educational institution. The relevant paragraph No. 17 of the judgment is being reproduced below :-
"There are, however, two important considerations which show that the selections by interview were thoroughly unsatisfactory. The candidates for selection induded a large number of senior teachers many of whom had officiated as Head Masters over long periods. They were asked to appear before a Committees consisting of 4 officials. One was a Member of the Public Service Commission, the second was the Secretary of the Education Department, the third was the nominee of the Chief Secretary and the fourth member was the Director of Education. The Committee was also assisted by an Educational expert from outside the State and this body was expected to make the selection after interviewing the candidates. Undoubtedly when appointment to high posts are made it may be perfectly legitimate to test the candidates at a properly conducted interview. But it appears to us that the interview cannot be made the sole test in case of this kind. The efficiency of a teacher and his qualifications to be appointed as Head Master depend upon several considerations. His character, his teaching experience, ability to manage his class, his popularity with the students and the High percentage of successful students he is able to produce are all matters which must be necessarily taken into consideration before a selection is made. For this, any committee which desires to make a selection after interview should insist that the character roll and the service record of the teachers should be before it. At the time of these interviews, however, the Committee did not have before it either the character rolls or service records of the teachers nor any confidential reports about them. They had to go merly by the result of the interview. In his affidavit, the Educational Secretary has admitted that such confidential records were not made available to the Committee and the reason given was as follows."
18. The view taken by the Division Bench in Smt. Santosh Chaudhary v. Committee of Management and others (supra), was upheld by the Hon'ble Supreme Court in case of Uttar Pradesh Secondary Education Service Commission v. Smt. Santosh Chowdhary and Ors. (supra).
19. In our opinion, in view of the legal position settled by aforesaid judgments of Hon'ble Supreme Court, the view taken by the learned Single Judge is justified and calls for no interference.
20. On behalf of the respondent No. 4 it was also argued that the writ petition was not legally maintainable as one writ petitions was dismissed as withdrawn on 26th August, 1991. We have considered this question. However, in our opinion, two writ petitions were failed on basis of the different and independent cause of actions. By the earlier writ petition, petitioner claimed himself to be permanent Principal on basis of U. P. Ordinance No. 28 of 1991 which came in force on 6.4.1991. The present writ petition was filed challenging the selection made by the Commission on the grounds stated above. In our opinion, the controversy in the two writ petitions are entirely different and judgment of Hon'ble Supreme Court in case of Forward Construction Company (supra), is distinguishable on facts and cannot be applied in the present case. Learned Counsel for the petitioner also submitted that petition stood regularised under Section 33-A (1-A) of the Act and there was no vacancy of head of the institution in the College. Reliance has been placed on the judgment of Hon'ble Supreme Court in case of Muneshwar Dutt Pandey v. Ranjeet Tiwari (supra). However, we are not inclined to consider the claim of petitioner on this basis as it was not pressed before the learned Single Judge. In the circumstances, we do not express any opinion on this question.
21. For the reasons stated above, in our opinion, the judgment of the learned Single Judge does not suffer from and illegality so as to call for our interference in appeal. The appeal is, accordingly, dismissed. However, there will be no order as to costs.