JUDGMENT Ashok Bhushan. J.
1. This is an appeal from an order dated 4th January, 2005 wherein the Hon'ble Mr. Justice Shishir Kumar, has rejected the writ petition of the appellant.
2. The appellant was aggrieved by the recommendation of the committee putting respondent No. 6 in Serial No. 1 of the final preference list and by reason of her being put in Serial No. 2.
3. As a result of this final recommendation, respondent No. 6 got selected and she has been discharging her duties from as early as 1991 now.
4. No interim order could be obtained, or was obtained, in aid of the writ petition by the appellant and thus respondent No. 6 has worked without let, or hindrance so long.
5. This would be sufficient justification, in our opinion, for the appeal to be dismissed and for us not to upset the long standing position obtaining so far. However, the legal point raised by the appellant also has an answer.
6. The legal point arises in this way; the writ petitioner and respondent No. 6 had secured equal marks in the interview and as such both of them were placed in joint position No. 1 in the first list which had been forwarded by the Committee.
7. The list, however, was sent back by the District Basic Education Officer and thereafter the second and final list was sent where the respondent No. 6 was placed at Serial No. 1 and the writ petitioner as No. 2.
8. It is mentioned in the note sending the second list that the experience and educational qualification of both the candidates had been considered by them along with marks secured by them.
9. The legal point raised by the appellant is that in the circumstances obtaining, the District Basic Education Officer had no jurisdiction under Rule-10 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 to return the papers to the management at all. Rule 10 is quoted below :-
"10. Procedure of selection.- (1) The Selection Committee shall, after interviewing such candidates as appear before it on a date to be fixed by it in his behalf, of which due intimation shall be given to all the candidates, prepare a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment.
(2) The list prepared under clause (1) shall also contain particulars regarding the date of birth, academic qualifications and teaching experience of the candidates and shall be signed by all the members of the Selection Committee.
(3) The Selection Committee shall, as soon as possible, forward such list, together with the minutes of the proceedings of the Committee to the management.
(4) The Manager shall within one week from the date of receipt of the papers under Clause (3) send a copy of the list to the District Basic Education Officer.
(5) (i) If the District Basic Education Officer is satisfied that -
(a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post;
(b) the procedure laid down in these rules for the selection of Headmaster or Assistant Teacher, as the case may be, has been followed, he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under Clause (4).
(ii) If the District Basic Education Officer is not satisfied as aforesaid, he shall return the papers to the management with the direction that the matter shall be reconsidered by the Selection Committee.
(iii) If the District Basic Education Officer does not communicate his decision within one month from the date of receipt of the papers under Clause (4), shall be deemed to have accorded approval to the recommendations made by the Selection Committee."
11. Under 5(ii) of the sub rules, the District Basic Education Officer can return the papers if he is not satisfied, as aforesaid, i.e., he is not satisfied as per the criteria laid down in sub Rule 5(i).
12. Under sub Rule 5(i)(b) if the procedure laid down in the Rules is not followed then the District Basic Education Officer would have jurisdiction to return the papers.
13. The whole of Rule 10 is headed "procedure of selection".
14. Under sub Rule (1) of Rule 10, it is a duty of the Committee to prepare a list containing as far as possible the names in order of preference.
15. Thus in regard to two candidates, i.e. the writ petitioner and the respondent No. 6, the committee, in their first attempt, made a slip and failed to allocate an order of preference as between these two candidates. If the Committee fails to allocate the order of preference amongst, say, seven candidates, it is as much a breach of the Rules as happened here, i.e., when it failed to allocate the order of preference between two main candidates.
16. As such, the District Basic Education Officer had jurisdiction to return the papers. Once the papers were returned, the Committee had jurisdiction, without the necessity of a fresh interview, to accord an order of preference on the basis of marks, educational qualifications and experience. Bonafides of the Committee is not in issue. The only point raised is the technical point of the officer's jurisdiction. We are satisfied that respondent No. 6 cannot be upset matter her long years of acting, on this point and our reasons are given above.
17. The appeal is thus dismissed.