JUDGMENT S.K. Singh, J.
1. By means of this writ petition, the petitioner has prayed for issuance of a writ in the nature of certiorari quashing the order dated 10.9.2000 (Annexure-6 to the writ petition) passed by respondent No. 4. A further prayer has been made for a direction to the respondents to permit the petitioner to work as Assistant Teacher and to pay her salary.
2. There is an intermediate college known as Rama Devi Balika Inter College, Allahabad (hereinafter referred to as the college). There happened three vacancies of teachers in B.T.C, grade in respect to which the management held selection in accordance with the provisions of Education Act. For all these posts, different sets of panel of two candidates each were prepared. The dispute survives only in respect to the post which is being claimed by the petitioner which is general category post for which, admittedly, Smt. Neelam Kapoor was placed at Sl. No. 1 and the petitioner was placed at Sl. No. 2. The petitioner claims that Smt. Neelam Kapoor was not eligible and qualified and, therefore, her name in the panel at Sl. No. 1 was clearly illegal and her selection as such was void and the petitioner being next, on top was entitled to be given appointment. It appears that the management recommended the name of Km. Durga Singh who was at Sl. No. 2 in the panel prepared for backward class candidates to be appointed in place of Smt. Neelam Kapoor which was challenged by the present writ petitioner in Writ Petition No. 18253 of 1998. This Court on 22,5.1998 disposed of the writ petition with the direction to the District inspector of Schools to decide the petitioner's representation by reasoned order. It is in pursuance of the direction of this Court, the District Inspector of Schools decided the representation of the petitioner by order dated 28/29.9.1998 and found that the petitioner being at Sl. No. 2 in the panel prepared for general category candidates was entitled to be appointed as Smt. Neelam Kapoor who was at Sl. No. 1 was not having proper B.Ed, certificate. Km. Durga Singh challenged the order of the District Inspector of Schools dated 28/29.9.1998 by which the claim of the present petitioner for the post in question, was accepted by the District Inspector of Schools by filing Writ Petition No. 33321 of 1998, which was dismissed by this Court on merits by its judgment dated 19.8.1999. The relevant extract from the judgment of this Court for the purposes of this case, is useful to be quoted as under :
"Once it was found that Smt. Neelam Kapoor did not possess proper B.Ed, certificate, Smt. Indu Tripathi being at Sl. No. 2 was entitled under the law to be appointed. I do not find any illegality in the impugned order passed by the District Inspector of Schools and the order dated 28/29.9.1998 is liable to be maintained."
3. As inspite of the orders of the District Inspector of Schools, the petitioner was not given appointment, the representations were made by the petitioner which were also not attended, then the petitioner filed Writ Petition No. 37607 of 2000 which came to be disposed of by this Court by order dated 25.8.2000 by issuing direction to the Committee of Management to decide the petitioner's claim by a reasoned order. It was also mentioned in the order that the Committee will decide the matter without being influenced by any observation made In the Judgment. It is thereafter, the respondent No. 4 proceeded to consider the petitioner's claim and has rejected the same by its resolution dated 10.9.2000 as communicated by letter dated 19.10.2000 (Annexure-6 to the writ petition). It is against this decision of the management, the petitioner has filed this writ petition.
4. Learned counsel for the petitioner has assailed the decision of respondent No. 4 on various grounds and it has been submitted that firstly, the view taken by the Committee that the District Inspector of Schools has passed orders in favour of the petitioner on 28.9.1998 and by that time, life of the panel being of one year has already expired and, therefore, the petitioner's right came to an end is totally incorrect. Learned counsel submits that in the present case, there is no question of panel having been exhausted as selection of Smt. Neelam Kapoor who was at Sl. No. 1 was void. It was found that she was lacking in the requisite qualification and thus the petitioner being at Sl. No. 2 was entitled to be appointed. It is on account of the litigation and inaction on part of the management, delay in acceptance of the petitioner's claim has taken place for which, the petitioner cannot be permitted to be penalised. In support of this submission, learned counsel for the petitioner has placed reliance on a decision in Purshottam v. Chairman, M.S.E.B. and Anr., 1999 (6) SCC 49, for the proposition that duly selected candidate cannot be deprived of her appointment on the pretext that some one has been appointed.
5. It was then contended that the ground as has been mentioned by the management for not accepting the petitioner's claim that B.Ed, certificate cannot be validly accepted, as it has been obtained through correspondence course in the year 1995-96 from Mahatma Gandhi Gramodyog College, Chitrakoot, Satna which is not recognised under the National Council for Teachers Education Act, 1993. also according (o learned counsel, is not acceptable. It has been pointed out that the petitioner has got the B.Ed, degree in the year 1995-96 from the aforesaid Vishwavidyalaya which was established by the State of M. P. under Act No. 1/91 which is recognised by all States as per Appendix-A Chapter II of U. P. Intermediate Education Act. It has been further argued that the recognition from National Council for the Teachers Education was not required for the year 1995-96 as the National Council for Teachers Education was established on 17.8.1995 and the regional committee was constituted on 6.1.1996 and the rules were framed on 24.2.1996 and thus it is for this reason, the Western Regional Committee of National Council for Teachers Education has itself directed by letter of 7.10.1999 (Annexure-1 to the rejoinder-affidavit) that from Session 1996-97, recognition from National Council for Teachers Education is required. Thus, the ground as given by the management that the degree of B.Ed. of the petitioner has no recognition by the National Council for the Teachers Education, is absolutely illegal and accordingly, the petitioner is entitled to get herself appointed on the post. Lastly, it has been submitted that the Committee of Management has not challenged the order of the District Inspector of Schools dated 28.9.1998 by which it was held that the petitioner is entitled to be appointed on the post in question and the management was directed to issue appointment letter and therefore, now it is not open for the management to challenge the impugned decision and that too after dismissal of the writ petition filed by Km. Durga Singh i.e.. Writ Petition No. 33321 of 1998, which in fact was got filed by the management itself.
6. In view of the aforesaid premises, it has been submitted that the decision of the management not permitting the petitioner to join the post for which she was selected is clearly unjust.
7. In response to the aforesaid submissions, learned counsel, who appears for respondent No. 4 submits that the District Inspector of Schools had no authority to take up the name of the petitioner from the select list and approve the same for appointment as the same is clearly against the provisions of Section 16F of the Act. U has been further submitted that the petitioner is not possessed with the minimum qualification and therefore, the direction of the District Inspector of Schools was clearly illegal and was not to be implemented by the management. It has also been pointed out that Writ Petition No. 37607 of 2000 filed by the petitioner for the same relief, was dismissed by this Court and therefore, the order of the District Inspector of Schools loses its significance. Lastly, it has been pointed out that even assuming that the petitioner was eligible for appointment, mere placement of a candidate in the select list does not confer any right on him/her to get appointment and as the panel of the candidates having life of one year, by time, the order of the District Inspector of Schools was passed, it has expired and thus panel was exhausted and therefore, on all these grounds, the claim of the petitioner has been resisted.
8. In view of the aforesaid submission, as has come from both sides, pleadings as has been set forth and the materials brought on record, have been examined.
9. There appears to be no dispute about the fact that the petitioner was duly selected by the management against vacancy of general category and she was placed at Sl. No. 2 in the select list. Smt. Neelam Kapoor was placed at Sl. No. 1, i.e., above the petitioner. The selection appears to have taken place on 10.8.1997. The Selection/ placement of Smt. Neelam Kapoor at Sl. No. 1 was challenged by the petitioner before this Court and after a direction in Writ Petition No. 18253 of 1998, the District Inspector of Schools, after giving opportunity to the petitioner, Smt. Neelam Kapoor and the management by its order dated 28.9.1998 held that Smt. Neelam Kapoor is not possessed with the requisite qualification, and. therefore, the petitioner being at Sl. No. 2 was held to be entitled for the post. It cannot be disputed that the order of the District Inspector of Schools dated 28.9.1998 was passed after full hearing to the management and a copy of the same was also sent to the management. The order of the District Inspector of Schools dated 28.9.1998 was challenged by one Km. Durga Singh who had obviously no claim for the post as her name was at Sl. No. 2 in the list of panel of O.B.C. candidates and, therefore, obviously she has no locus standi to lay any claim for the post in question for which it has been suggested in para 12 of the writ petition that it is the management who inspired aforesaid Km. Durga Singh to file writ petition. It in this back ground now the claim of the petitioner has to be examined. The order of the management by which the petitioner's claim has been rejected states two grounds namely (i) that the life of the panel being one year on the date on which the District Inspector of Schools has passed order, i.e., 28.9.1998, it has come to an end (ii) the petitioner is not having valid B.Ed, degree as it is through correspondence course and Vishwavidyalaya from where the degree has been obtained, on account of coming into existence the National Council for Teachers Education Act, 1993, recognition automatically came to an end. In so far the ground as has been taken by the management and the submission as has been made on behalf of the respondents about life of the panel having came to end after expiry of one year is concerned, in the given set of facts, the selectee at Sl. No. 1 has been found to be not possessed with the requisite qualification. As the candidate at Sl. No. 1 lacked in requisite qualification, that cannot be said to be a valid selection in the eye of law and, therefore, the petitioner has to get the berth which may be at Sl. No. 2. It is not a case where the valid selectee has joined the post and for some reason, he/she has left the same or for any laches on the part of the petitioner, he has not reported within one year, making him disentitled under law for the post in question. Here is the case where from very beginning, the petitioner took up a fight to challenge selection of Smt. Neelam Kapoor, selectee at Sl. No. 1 and it is a matter of common knowledge, the litigation takes quite reasonable time and, therefore, in the event, final decision of the District Inspector of Schools came in favour of the petitioner on 28.9.1998, no blame can be attributed to the petitioner for expiry of period of one year. Here, it is the management which is guilty of selecting a candidate who was not qualified and, therefore, in the event, Smt. Neelam Kapoor would not have been selected/placed at Sl. No. 1, obviously the petitioner would have placed at Sl. No. 1. In this view of the matter, I feel that the respondents cannot be permitted to take expiry of one year to nullify the legitimate due of the petitioner. In such a situation, if one sticks to the period of one year, in respect to the life of the panel, then it will be very easy for any body, not interested in permitting valid claimant, to take over, to file writ petition or take some objection before the educational authorities and get the matter some how or the other lingered on ; for a period of one year in passing of final order in favour of the selectee and even thereafter, his/her ouster on account of expiry of one year. It cannot be said to be the intention of the life of the panel. In view of this, objection of the respondents in this respect has to be rejected.
10. In connection with submission of learned counsel for the respondents that mere placement of the candidate in the select list does not confer any right to get the appointment also cannot be accepted In the facts of the present case as it is not a case where the vacancy is not to be filled up or their may be any situation that for any reason, entire selection process has been set aside and, therefore, the contention in this 4 respect also has to be rejected. The decision as has been referred by learned counsel for the respondents in State of Bihar v. Md. Kalimuddin and Ors.. AIR 1996 SC 1145 and Basudev Pati v. State of Orissa. JT 1997 (3) 736, has no application to the facts of the present case.
11. In respect to the submission of the respondents that the petitioner was not possessed with minimum qualification as she has no proper degree of B.Ed. on account of fact that on coming into force, the National Council for Teachers Education Act. 1993. Vishwavidyalaya from where petitioner has obtained degree has no recognition, suffice to say that on record, there is a letter of Western Regional Committee which clearly states that the recognition will be required from the Session 1996-97 and thus in view of the fact that the Vishwavidyalaya was duly established by the State of M. P. under M. P. Act No. 9 of 1991 the degree from which may be recognised by all the Slates as per the Appendix-A. Chapter II of the Intermediate Education, the B.Ed., degree of the petitioner being of the year 1995-1996, cannot be said to be improper. Learned counsel for the respondent in this connection has taken the Court to various provisions as contained in National Council for Teachers Education Act. 1993 but in view of the letter of the Western Regional Committee of the N.C.T.R. itself (Annexure-1 to the rejoinder-affidavit), it is not required to examine those aspects in detail. Otherwise also, it is not a case of any concealment or playing fraud on the part of the petitioner and on the basis of the materials so supplied, the management has duly selected the petitioner and placed her in the panel.
12. Admittedly, the petitioner has been selected by the management and she was placed at Sl. No. 2 in the panel. In the event. Smt. Neelam Kapoor would not have been placed at Sl. No. 1, in normal course, at that very stage, the petitioner could have been appointed. It is only on account of dispute having arisen in respect to selection of Smt. Neelam Kapoor, all the differences appear to have crept between the management and the petitioner. Ultimately, the petitioner succeeded in getting order in her favour. The management who is an active participant in the decision of the District Inspector of Schools dated 28.9.1998. has not chosen to file any writ petition before this Court or to challenge the same taking any other recourse, can be safely said to have submitted to the order of District Inspector of Schools. As argued by learned counsel for the respondents that the order of the District Inspector of Schools is void and non est and, therefore, it required no challenge and thus it is open for the management not to comply the same and resist the claim of the beneficiary as and when it is taken for implementing the said order, cannot be accepted. The decision of the District Inspector of Schools has come in pursuance of the direction of this Court given in Writ Petition No. 37607 of 2000. The decision of the District Inspector of Schools after rejection of the candidature of Smt. Neelam Kapoor, in respect to the present petitioner, is just a necessary consequence which ought to have been there at the first instance when the selection took place, in the event the candidature of Smt. Neelam Kapoor is ignored from scene. To my mind, non-challenge of the order of the District Inspector of Schools dated 28.9.1998 by the management, operates as estoppel in respect to non-acceptance of the petitioner's claim and the effect of the order of the District Inspector of Schools cannot be permitted to be nullified by taking a pretext by the management that it is void and non-est. The order of the District Inspector of Schools on the facts, even assuming for the sake of arguments, submissions of the respondents, cannot be said to be non-est and at the most, it can be termed as erroneous and in view of the law settled by Apex Court, even erroneous judgment/order between the parties, has binding effect. Thus, the claim of the petitioner is to be accepted on this ground alone. Although after the aforesaid finding : it is not very much necessary to examine other aspects but as various aspects have been placed before this Court, it appears to be just and proper that some finding, in the light of the submission may also come.
13. In view of the aforesaid discussions, it appears that the panel neither exhausted on account of joining of the selected candidate nor it is a case of there being any lapse on the part of the petitioner and on the other hand, the selection of the candidate who was placed at Sl. No. 1 was not valid selection in the eye of law and, therefore, the petitioner being next in order of merit, is certainly entitled to the discretion of the Court. It is also not the case where authority has decided not to fill up the post or for any other reason, the entire selection process has been decided to be invalidated and therefore, the submission that mere impanelment of a candidate does not confer any right to get appointment, also is not acceptable. On the other hand, the Apex Court has clearly laid down that a selected candidate cannot be permitted to be deprived of his right on account of the fact that the employer sits over the matter and permits the time as prescribed for exhausting panel to run over. It has also been held by the Apex Court that if for the fault of the committee/Board in taking erroneous decision, if a post has been taken over by some body, even then, the right of a candidate so validly found to be entitled for that post, also cannot be denied.
14. In view of the aforesaid discussions, it appears that the action on the part of the management for denying the petitioner's right is neither fair nor justified nor bona fide nor legally acceptable and therefore, decision of respondent No. 4 dated 10.9.2000 (Annexure-6 to the writ petition) as impugned in this petition deserves to be quashed.
15. Accordingly, this petition succeeds and is allowed. The impugned order dated 10.9.2000 (Annexure-6 to the writ petition) is hereby quashed. The respondent No. 4 is commanded to implement the order of the District Inspector of Schools dated 28.9.1998 and permit the petitioner to join the post for which she was selected.