Counsel for Petitioner :- Radha Kant Ojha,Harshita Rani,R.C. Maurya,Shekhar Kumar Yadav,Suresh Chandra Srivastava,Virendra Singh Counsel for Respondent :- C.S.C.,H.N.Pandey,Pradeep Kumar,Rahul Asthana,Shivendra Singh Hon'ble Ajay Bhanot,J.
1. An advertisement was taken out by the Management of Shri Ram Krishna Uchchatar Madhyamik Vidyalaya, Shahpur Jatan, District Mathura inviting applications for appointment to the post of Principal of the aforesaid institution. The petitioner and other candidates participated in the selection proceedings in response to the said advertisement. At the conclusion of the selection proceedings the petitioner was selected for appointment as Principal of the said institution. The petitioner joined his post and started discharging his duties.
2. The respondent no.4, Rajbeer Singh, apparently made a complaint against some irregularities committed in the selection process. The selection proceedings were cancelled by the Special Secretary, (Basic Education), Govt. of U.P, by order dated 31.8.2005. However the Basic Education Officer, Mathura, by order dated 9.3.2006 directed for payment of salary to the Teachers whose appointment had been earlier cancelled by the order dated 31.8.2005.
3. Being aggrieved by the aforesaid action of the respondent authorities the respondent no.4 instituted a writ petition before this court. The writ petition was registered as C.M. Writ Petition No.65278 of 2006, Rajbeer Singh Vs. State of U.P. and others. The following interim order was passed in the aforesaid writ petition on 30.11.2006.
"In such a circumstances petitioner has made out prima-facie case for grant of main order.
Till the next date of listing payment of salary to respondent no.5 shall not be affected."
4. Subsequently on 18.1.2007 this court passed the following orders in the said writ petition.
"The order issued by the Secretary, Basic Education, Government of U.P., Lucknow dated 15th January, 2007, fixing the liability in respect of illegal appointment and payment of salary to Sri Ram Prakash Singh Chahar (respondent no.5) is modified to the extent that 50% of the loss caused shall be recovered from the Committee of Management of the institution and 50% of the amount shall be recovered from the District Basic Education Officer, Mathura and Additional Basic Education Officer, Mathura in equal proportion. The Secretary, Basic Education, Government of U.P., Lucknow must also file an affidavit by the next date fixed stating therein as to whether the recovery has been affected against the officers concerned or not.
Put up this matter on 28th February, 2007 for further hearing.
In the meantime Sri B. D. Madhyan, Advocate who has put in appearance on behalf of respondent no.5 may file counter affidavit.
Interim order granted earlier by this Court shall continue in operation till the next date fixed."
5. The order dated 18.1.2007 was taken in appeal. The learned Division Bench in Special Appeal No.199 of 2007, Prem Prakash and another Vs. State of U.P. & Ors. referred the following judgement on 20.2.2007 :-
"This Special appeal has been filed against the impugned judgment and order dated 18th January, 2007, by which the learned Single Judge while hearing the writ petition No.65278 of 2006, enhanced the penalty imposed by the State upon the present appellants.
We have heard Shri Shashi Nandan, learned Senior Counsel appearing on behalf of the appellants and the learned Standing Counsel appearing for respondents.
The facts and circumstances giving rise to this case are that there was a dispute regarding appointment of Principal which was found to be invalid by the State and as the said incumbent, on the post, has drawn the salary for a long period, the amount of salary was directed to the recovered to the extent to 12.5% from each appellant. The grievance of the appellants is that the said authority to the extent of 12.5% for each appellant has been enhanced to 50% by the learned Single Judge without issuing any show cause notice to either of them. They were not even a party in the writ petition.
As admittedly the penalty has been enhanced without giving opportunity of hearing to the present appellants nor they had been a party in the writ petition, the order of enhancement from 12.5% to 50% is not justified. Thus, it is set aside. However, it would be open to the learned Single Judge to get the said appellants impleaded in the writ petition and given them opportunity of hearing and then pass an appropriate order if the facts so warrant.
"Thus, in view of the above, the order impugned dated 18th January, 2007 to the extent of enhancing the liability to 50% from each appellant is set aside. However, it is clarified that the penalty imposed by the State would continue unless it is set aside or stayed by the Competent Court.
With the observations made above the appeal stands disposed of finally.
It may further be clarified that the disposal of this appeal shall not adversely affect either of the parties as the matter is still to be adjudicated upon finally by the learned Single Judge."
6. During the pendency of the writ petition registered as C.M. Writ Petition No.65278 of 2006 the respondent authorities caused an enquiry to be conducted into the validity of the selection proceedings. The aforesaid enquiry found the selection proceedings to be contrary to law. The selection proceedings were quashed by order dated 15.1.2007 passed by Secretary, Department of Basic Education, Civil Secretariat, Lucknow. The petitioner aggrieved by the order dated 15.1.2007 setting aside the selection proceedings on the foot of which the petitioner was appointed as the Headmaster of the said institution filed the instant writ petition.
7. The petitioner has assailed the order dated 15.1.2007 passed by the respondent no.1 in the instant writ petition.
8. Learned counsel for the petitioner Sri R. C. Maurya submits that the respondent no.4, Rajveer Singh, has no locus standi to make a complaint against the petitioner's selection since he had participated in the selection proceedings. He further contends that the petitioner is fully qualified for being appointed as Headmaster of the aforesaid institution.
9. Sri Moti Lal, learned Standing Counsel has drawn attention to the findings returned by the respondent no.1 and contends that the order suffers from no infirmity in fact or law. The date of the selection proceedings, advertisement and the process of selection on the foot of which the petitioner was selected has not been pleaded in the writ petition. The relevant documents relating to the selection of the petitioner have not been brought in the record of the writ petition.
10. Heard learned counsel for the parties.
11. The petitioner has failed to establish the legality of his appointment from his pleadings and records in the writ petition. The inadequacy of pleadings in the writ petition disentitles the petitioner to any relief.
12. To get the relief sought in the writ petition, the petitioner has to rely on the merits of his case in the writ petition and not rest his defence on the perceived drawbacks or failing of the respondents.
13. However, the facts relevant for judgement in the controversy can be distilled from the order dated 15.1.2007 impugned in the instant writ petition.
14. The order dated 15.1.2007, which is assailed in the writ petition was passed after giving an opportunity of hearing to all necessary parties including the petitioner, concerned State Officials, Committee of Management as well as complainant. Upon giving due considerations, pleadings and the evidences tendered by respective parties the order dated 15.1.2007 returns the following findings of fact:-
(1) The advertisement in pursuance of which applications were invited from candidates required the candidates to possess five years of experience. The advertisement further mandated the requirement of experience of teaching in High School for Junior High School or the applying candidates.
15. These facts relating to the qualifications prescribed in the advertisement have not been disputed in the writ petition nor in the course of arguments by the learned counsel for the petitioner.
16. The appointment and qualifications of Headmaster of Junior High School are governed and regulated by the provisions of The Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978. The relevant provisions which are germane to the issue under consideration are extracted hereunder for fellowship of reference:-
Rule 2(g) "Recognised School" means any Junior High School not being an institution belonging to or wholly maintained by the Board or any local body recognised by the Board as such;
Rule 4. Minimum qualification. - (1) The minimum qualifications for the post of Assistant Teacher of recognized school shall be a Graduation Degree from a University recognized by U.G.C., and a teachers training course recognized by the State Government or U.G.C. or the Board as follows :-
1. Basic Teaching Certificate.
2. A regular B.Ed. degree from a duly recognized institution.
3. Certificate of Teaching.
4. Junior Teaching Certificate.
5. Hindustani Teaching Certificate.
And Teacher eligibility test passed conducted by the Government of Uttar Pradesh or by the Government of India.
(2) The minimum qualifications for the appointment to the post of head master of a recognized school shall be as follows -
(a) A degree from a recognized University or an equivalent examination recognized as such.
(b) A teacher's training course recognized by the State Government, U.G.C. or Board as follows :-
1. Basic Teaching Certificate.
2. A regular B.Ed. degree from a duly recognized Institution.
3. Certificate of Teaching;
4. Junior Teaching Certificate.
5. Hindustani Teaching Certificate.
(c) Five years teaching experience in a recognized school].
Rule 5. Eligibility for appointment. - No person shall be appointed as Headmaster or assistant teacher in substantive capacity, in any recognized school, unless -
(a) he possesses the minimum qualification prescribed for such post;
(b) he is recommended for such appointment by the Selection Committee."
17. The prescribed qualifications provided in the advertisement are admittedly contrary to the eligibility qualifications provided in the statute. The minimum qualifications for appointment as teachers and headmaster are provided in 4 of the Rules. The Rule 4 (2) (C) mandate five years teaching experience in recognized school. A recognized school is defined in Rule 2(g) as a Junior High School.
18. The advertisement invited applications from candidates possessing five years of teaching experience. The respondent no.1 in the order dated 15.1.2007 after noticing the conflict between the provisions of the Rule and the prescription in the advertisement finds that due to the discrepancies in the advertisement, candidates with three years of experience could not participate in the selection proceedings. Thus the candidates with three years experience who were qualified as per Rules for appointment and eligible to participate in the selection proceedings were precluded from doing so because of the illegal precondition in the advertisement.
19. The order dated 15.1.2007 further records that the advertisement called for applications from candidates having experience of teaching in high school or junior high school. The qualifications prescribed in the Rule requires the candidates to possess teaching experience in junior high schools only. The provisions have been construed strictly by the order dated 15.1.2007. The order dated 15.1.2007 finds that candidates having teaching experience of high school were not eligible to be appointed as Principal of a junior high schools.
20. The third illegality grave enough to vitiate the selection proceedings as recorded in the order dated 15.1.2007 is that the selection proceeding contemplate that the selection proceedings so contemplated included a written examination. There is no provision of a written examination in the Rules.
21. The purpose of advertisement is to lend transparency to the selection proceedings and to invite applications from all the candidates eligible for appointment as per Rules. The terms of the advertisement have to be consonance with the rules pertaining to appointment or recruitment. This prerequisite of a valid advertisement encourages maximum participation in the selection proceedings and ensures the appointment of the most meritorious candidates. It also ensures that eligible candidates are not precluded from participating in the selection proceedings. Such advertisement ensures that principle of equality of opportunity for all citizens in matters relating to appointment to any post or office informs the selection process. The recruitment is thereby brought in conformity with the mandate of Article 16 of Constitution of India. A valid advertisement is an essential ingredient of a lawful recruitment process.
22. The terms of the advertisement are not denied by the petitioner. The provisions of statute cannot be refuted by the petitioner. The terms of the advertisement were contrary to the provisions of the statute. The findings recorded by the authority while passing the order dated 15.1.2007 are impeccable based on a process of reasonable and founded on specific provisions of law. The order dated 15.1.2007 was passed after due application of mind.
23. Clearly the selection proceedings on the footing of which the petitioner was appointed are contrary to provisions of law. The selection proceedings are vitiated. No right can accrue to the petitioner from an appointment made on the foot of illegal and vitiated selection proceedings.
24. The order dated 15.1.2007 with a view to ensure transparency in administration, extended the scope of the enquiry to the role of the officials as well. The then Basic Shiksha Adhikari was indicted for conducting proceedings which were arbitrary and contrary to law. The responsibility on the aforesaid persons was fixed by the order dated 15.1.2007. An order for recovery of the wages paid to the petitioner was made from the officials held responsible for the illegal selection proceedings. The interest of the petitioner to the extent that the salary was paid was protected by the order dated 15.1.2007. It is pertinent to note that the petitioner is aggrieved by the orders passed by the respondent no.1, Secretary, Department of the Basic Education Govt. of U.P., Lucknow which has protected some of his interests. The respondent no.4 was only a complainant before the authorities. Hence there is no question of considering the locus standi of the respondent no.4 in the instant writ petition. The order has been passed by the authorities on the merits of the case.
25. The writ petition is devoid of merit and is dismissed.
Order Date :- 27.9.2018/Pramod