Hon'ble Abhinava Upadhya,J.
(Delivered by Hon'ble Abhinava Upadhya,J) Heard Sri R.N.Singh, learned senior advocate for the appellant and Shri Ashok Khare, learned Senior Advocate assisted by Shri Ram Milan Mishra for respondent no.3. Shri K. Shahi appears for respondent no.2 This Special appeal has been filed challenging the judgment and order dated 14.9.2009 of the learned Single Judge by Suneel Kumar Singh who was respondent No.4 in writ petition no.36441 of 2009 which was filed by Arun Kumar Chaturvedi, petitioner therein and respondent no.3 herein.
Brief facts of the writ petition are that Arun Kumar Chaturvedi and Suneel Kumar Singh both, amongst others, appeared for selection for appointment on the post of Head Master of Vidya Mandir Purva Madhyamik Vidyalaya, Kaamganj, Farrukhabad. This is a recognized Junior High School under the Basic Education Act, 1972 (in short, the Act of 1972) and the provisions of U.P. Junior High Schools( Payment of Salaries of Teachers and Other Employees) Act, 1978 (in short, the Act of 1978) are applicable. The procedure for appointment on the post of Head Master is regulated by U.P. Recognized Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978 (briefly, the Rules of 1978).
An advertisement was published on 24.10.2008 upon a vacancy having occurred due to retirement on the post of Head Master on 30.6.2008. Both the candidates applied alleging to possess minimum qualification prescribed. Suneel Kumar Singh was, however, selected on the post in question and papers pertaining to his selection were transmitted to the Basic Shiksha Adhikari for approval under rule 10(5) of the Rules of 1978 and Basic Shiksha Adhikari vide order dated 21.11.2008 granted approval to the appointment of Suneel Kumar Singh as Head Master and consequently under Rule 11 of the Rules an appointment letter was issued by the Committee of Management of the Institution on 21.11.2008.
Respondent no.3 in the present appeal Arun Kumar Chaturvedi challenged the appointment on the ground that the appellant Suneel Kumar Singh did not possess the essential qualification as prescribed under rule 4 of Rules of 1978 for appointment on the post of Head Master. The Rules prescribe amongst other, qualifications of 5 years teaching experience in a recognized school. 'Recognized School' is defined under Rule 2 (n) to mean recognized Junior High School and not High School. The challenge was confined only to the extent that the selected candidate Suneel Kumar Singh did not possess the requisite 5 years teaching experience in a recognized institution. The contention of the petitioner was that the periods during which Suneel Kumar Singh has claimed to have gained teaching experience on the basis of appointment in a recognized institution could not have been accepted as he was not even qualified to be appointed in a recognized institution as a teacher for he did not possess the mandatory teachers training course at the relevant time as required under Rule 4 (1) of 1978 Rules prior to its amendment on 12.6.2008. It is only after the amendment in 2008 that B.Ed. was recognized an adequate teachers training course for Junior High School and the appellant obtained this degree only in 2006. According to the petitioner in the writ petition, the selected candidate did not possess the mandatory qualification for even being considered for appointment in any capacity as a teacher in a recognized institution. Any experience gained pursuant to such an illegal appointment cannot be taken into consideration for satisfying the requirement of 5 years teaching experience for the purpose of appointment as Head Master in a recognized institution which are governed by statutory provisions.
Learned single Judge accepting the contention of the petitioner Arun Kumar Chaturvedi set aside the appointment of Suneel Kumar Singh holding that he did not possess the requisite qualification for appointment as a teacher in any recognized institution as per the prescribed rules and, therefore, any experience gained from such an appointment cannot be held to be a valid experience for consideration of his candidature for appointment as Head Master in a recognized Junior High School and directed the authorities to consider the claim of other candidates including that of the petitioner Arun Kumar Chaturvedi who allegedly had the Teachers Training Certificate of 1996.
The selected candidate, that is, Suneel Kjumar Singh has preferred this special appeal aggrieved by the judgment of learned single Judge and learned senior advocate appearing for the appellant amongst other ground has also assailed the judgment of the learned single Judge on the ground that the petitioner having participated in the selection process and his candidature having been rejected could not have challenged the selection of the appellant/respondent as he had no 'locus standi' to challenge the same .
From the judgment of the learned single Judge, it does not appear whether such a ground was raised or argued before the learned single Judge. For the respondent, Sri Ashok Khare, learned senior Advocate asserts that no such argument or ground was made before the learned Single Judge. However being an intra court of appeal, this legal argument can be raised at this stage also and without going into the question whether the same was raised before the learned single Judge or not, we will be dealing with this aspect at the relevant stage.
From the aforesaid facts and submissions made by learned counsel for the parties essentially two questions arise for consideration:(A) whether on the basis of the teaching experience gained by the appellant in a recognized institution due to his appointment or engagement which is shown to be contrary to the rules still he could be held to satisfy the requirement of the advertisement and the rule, i.e., 5 years teaching experience in a recognized school and secondly, (B) whether the respondent/petitioner who was also an applicant and a candidate in the selection process can challenge the selection of the appellant, having not been selected himself on the ground that he did not possess the requisite qualification for selection on the post in question.
Since the very maintainability of the writ petition and the jurisdiction of this Court to entertain such a petition at the hands of the respondent petitioner has been questioned, we propose to deal with this question first.
Learned senior advocate Sri R.N.Singh contends that the respondent petitioner participating in the selection process having not been selected cannot be allowed to challenge the selection of the appellant respondent. For the said purpose, he has relied upon various decisions of this Court as well as Supreme court. Reliance has been placed upon a decision in the case of Dhananjay Malik and others Vs. State of Uttaranchal and others (2008) 4 Supreme Court Cases 171 to contend that unsuccessful candidate having once participated in the selection process and being unsuccessful in the said selection cannot challenge the recruitment process.
In our view, the aforesaid judgment does not help the appellant as the Hon'ble Supreme Court in para 7 has held as under:
" It is not disputed that the respondent-writ petitions herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules"
But in the present case, the question is not with regard as to whether the prescribed educational qualification as mentioned in the advertisement is contrary to Rules or not or with regard to any faulty process of selection but was with regard to a question of selection of a candidate, who according to the respondent petitioner, did not possess the minimum qualification of having requisite years of teaching experience. Therefore, there can not be a bar to challenge the selection of one candidate by the other candidate on the ground that his right of appointment is infringed on account of selection of the candidate who did not possess the prescribed minimum qualification.
Learned senior advocate relied upon another decision rendered by Hon'ble Supreme Court in the case of Trivedi Himanshu Ghanshyambhai Vs. Ahmedabad Municipal Corporation and others (2007) 8 Supreme Court Cases 644. In the aforesaid judgment the process of selection included written test as well as interview and the candidate who challenged the same did not qualify the interview and the supreme Court held as under in Paras 17 and 18:
"17.It is not in dispute that the respondents 2 and 3 as well as the appellant were all found eligible, in the light of the marks obtained in the written test, to be called for the oral interview. Up to this stage, there was no doubt. The Respondents 2 and 3 and the appellant appeared before the Committee constituted by the corporation for conducting the oral interview. The respondents 2 and 3 could not clear the oral interview and were not selected whereas the appellant was found successful and accordingly, selected. Therefore, there cannot be any dispute that only because the respondents 2 and 3 could not get selected and named in the final merit list, as a result of their combined performance, both in the written test as well as in the oral interview, they challenged the appointment of the appellant and other selected candidates by moving the writ petition. Such being the position, we are of the view that the High Court was not justified in exercising its power under Article 226 of the Constitution by granting relief to the writ petitioners, who are now respondents 2 and 3 in this appeal. As we are of the opinion that the appellant did possess the administrative experience of ten years required for selection to the post of Assistant Manager in view of the varied nature of work performed by him while working as an X-ray Technician, we do not find any reason to take a view, different from the one taken by the Corporation and the Selection Committee. Therefore, we are of the view that it was not open to the respondents 2 and 3 to challenge the appointment of the appellant and other selected candidates, as they were themselves unsuccessful in the test. In this connection, reliance can be placed on a decision of this Court in the case of Madan Lal and Others Vs. State of J & K and Others [(1995) 3 SCC 486].
18. Accordingly, we are of the view that the High Court was neither justified in interfering with the appointment of the appellant by holding that he did not possess the requisite administrative experience of ten years while working as an x-ray technician nor was it open to the High Court to entertain the writ petition challenging the appointment of the appellant and other selected candidates at the instance of the unsuccessful candidates."
This case is also clearly not applicable in the present case inasmuch as the respondent petitioner had challenged the selection of the appellant on the ground that he did not possess the requisite eligibility criteria of having required years of teaching experience. But in the case referred to above, the candidate who challenged the selection although qualified in the written test but failed in the interview, therefore, even if the selected candidate's appointment is held to be invalid, the non-selected candidate cannot be considered as he had failed in the interview.
Learned senior advocate also relied upon a decision of Hon'ble Supreme Court in the case of Khalid Hussain (Minor) Vs. Commissioner and Secretary to Government of Tamil Nadu AIR 1987 SC 2074 to assert that the petitioner respondent had no legal right to maintain the said writ petition as he himself was not qualified. The question before the Hon'ble Supreme Court in the aforesaid decision was whether the appropriate criteria to be adopted for selection of a candidate belonging to the category (Eminent sportsman ) for admission to M.B.B.S. Course , is pre-Eminence in the sport and not academic excellence ? For the said purpose there was a reservation of 3 seats for the category of Eminent sportsman in the specified category. For Eminent sportsman, the order of preference was (A) participation at International level, (B) participation at the national level and (C) participation at State level with condition that the candidates applying for admission to the said category must have secured 50% aggregate in Science subjects in the qualifying examination. The Court thus held in para 7:
"The remaining contention does not merit consideration. The learned Judges although inclined to the view that respondent No.6 had really not participated in a National tournament, were entitled to take the view that the Court ought not to, in the facts and circumstances of the case, exercise its discretionary powers under Art.226 of the Constitution at the instance of the petitioner who was not entitled to any relief merely because the Selection Committee was wrong in its view that respondent No.6 had played in a National tournament although he had in fact played in a zonal tournament. Any other view would have been manifestly unjust as respondent No.6 though admitted to the Regional Engineering College, Kurukshetra had given up his seat there on his being admitted to the M.B.B.S. Course and had already undergone his course of studies for more than six months. The learned Judges rightly observe that it is not obligatory for the Court to interfere in all cases unless justice of the case so demands."
This case is also clearly distinguishable as in the present case the respondent petitioner claims himself to have requisite qualification ignoring which , as alleged by him, the appellant has been selected without having requisite eligibility of 5 years teaching experience.
In our view the aforesaid decisions do not help the appellant and are clearly distinguishable. Accordingly, upon the facts of the present case we cannot but hold that the respondent petitioner was well within his right to invoke writ jurisdiction of this Court and the writ petition was maintainable.
Now to deal with the second question regarding the eligibility of having five years of teaching experience in a recognized institution, learned senior advocate has emphatically submitted that the appellant has gained the aforesaid experience while working in a recognized High School, namely, Adarsh Janta Shikshan Sansthan Samiti Vidyalaya, Saraiyya Post, Awajpur, district Farrukhabad (A) from 16.8.98 to 26.6.2001, (B) from 1.7.2001 to 31.1.2005 and from 25.5.2006 to 30.5.2008 while working in a Junior High School, Sarsawati Vidyalaya Junior High School, Yaqootganj, Farrukhabad and (C) from 1.7.2008 in another Junior High School, namely, Saraswati Shishu Mandir Purva Madhyamik Vidyalaya Kayamganj, Farrukhabad till his appointment on 21.11.2008 in the said institution and, therefore, all that the rule requires is that a candidate for selection for the post of Head Master in a Junior High School must possess experience of at least 5 years of teaching in any recognized institution and since all the above institutions were recognized institutions, the appellant's teaching experience would satisfy the criteria for being eligible for selection.
The criterion and qualification for appointment of teacher and head master in junior high school is governed by the provisions of U.P. Recognized Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978. In this rule an amendment was brought in vide notification dated 12.6.2008 whereby rule 4(1) was amended and B.Ed. Degree was included to satisfy the criteria of teachers training course and rule 4(2)(c) was amended bringing about 5 years of teaching experience in a recognized institution from the earlier rules which provided only 3 years of teaching experience.
Sri R.N.Singh , learned senior advocate relying upon the aforesaid rules has submitted that having teaching experience in any capacity in the recognized institution would satisfy the criteria of rule 4(2)(c) of the amended rules and since the appellant possessed the teaching experience from the aforesaid recognized institutions was fully eligible and was rightly selected. It is contended that the only requirement as per rule 4(2)(c) was that a candidate must have 5 years teaching experience. On a pure grammatical consideration of the expression' teaching experience' it would undisputedly appear that the candidates claiming to be appointed on the post of Head Master should have worked as a teacher in a recognized School for a minimum period of 5 years. The emphasis is on the experience gained by the work in a recognized institution even a untrained teacher who is a teacher in a junior high school teaches the same students who are taught by the trained teachers. There is no difference at all between functioning of aforesaid two types of teachers and , therefore, the finding of learned single Judge that during the period when the appellant gained experience of teaching, he did not possess the teacher training course was an irrelevant consideration and not in the spirit of the requirement of law. According to the learned senior advocate , the requirement of the rule is defacto experience and a distinction has to be drawn between the de facto experience and de jure experience . It is not necessary that to gain experience of teaching, a person has to be appointed substantively on the post and from the facts if it is established that in fact the appellant had taught in the aforesaid institutions during the aforesaid period, he will have to be treated to have required defacto teaching experience in a recognized institution.
To fortify the aforesaid contention, learned senior advocate has relied upon a decision of Division Bench of this Court in the case of Dr. U.S.Sinha Vs. State of U.P. And others 2008(2) ADJ 205(DB). The dispute in the aforesaid case was with regard to selection of general category candidate as principal of medical college and the eligibility criteria for such selection was whether or not the person selected had requisite experience as professor at the time of selection. The Regulations provided that a candidate should have 10 years teaching experience as Associate Professor in a medical college/institute out of which at least 5 years should be as professor in a department. So the question arose that a selected candidate who was a professor in the department of a college of society, whether that period can be counted as teaching experience or not, if the post on which he was working is subsequently held to be defunct. This Court held in para 12:
"... in our view, a post can be created by the Government , which subsequently, can be declared either by the Government or by the Court of Law, as defunct but it is correct to say that the experience of a person in imparting education while working in such post cannot evaporate. It can also be seen from the point of view of equitable justice that a candidate had no fault in continuance of work on such post as Professor. Admittedly, he continued on the post as Professor and received salary of the post of the Professor till the date of selection and at no point of time his continuance and working as Professor was challenged by any body and on this rationale , the Court held that the experience gained by working on such a post was defacto experience which cannot evaporate along with the post and can be considered to be requisite criteria of having teaching experience for being considered for appointment."
Learned senior advocate has also relied upon a a decision of learned single in the case of Smt. Shakuntala Saxena Vs. Director of High Education, Allahabad and others 2003(1)ESC(All) 164 wherein it was held that a person who was working as an acting Librarian for a considerable period of time, his experience as a Librarian has to be taken into consideration for having requisite experience . Similarly in another decision of this Court in the case of Committee of Management, B.D.Bajoria Inter College and others Vs. Director of Educations (Secondary), U.P., Lucknow and others (2000) 1 UPLBEC 46 this Court held that the experience as an adhoc teacher in an institution has to be taken into consideration while determining experience of teaching in an recognized institution for appointment.
Learned Single Judge while considering the aforesaid submissions and distinguishing the aforesaid judgments has held as under:
"Any teaching experience gained by respondent no.4 on the strength of an appointment, which is per se illegal cannot be taken into consideration and is of no legal consequence. In view of the aforesaid, the teaching experience gained by respondent no.4 during the aforesaid period has also to be ignored.
Distinction of de jure and de facto experience as argued by the learned Senior Counsel for respondent no.4 does not appeal to the Court, in view of the specific language of Rule 4(2)(c) of Rules, 1978.
In my opinion, application of the principle of de facto experience in this case would be in violation to the specific provisions of Rule 2(h) and Rule 4 read with Rule-5 of Rules, 1978. Any abstract principle, which whittles down the intent of the clear unambiguous language of the statutory provision has to be avoided.
The judgements relied upon by the learned counsel for respondent no.4 are clearly distinguishable in the facts of the present case, inasmuch as in none of the aforesaid cases there was an identical provision restricting the nature of teaching experience required as that contained in Rule 4(2)(c) of Rules, 1978, whereunder only the teaching experience of a particular category i.e. working in a 'recognised school' alone is to be considered.
The Hon'ble Supreme Court of India in the case of Bhavnagar University Vs. Palitana Sugar Mills (Pvt.) Ltd. & Ors. reported in 2003(2)SCC11, has held as follows:
The experience gained by the petitioner between August, 1998 to August 2001 in Adarsh Janta Shikshan Sansthan could not be taken into consideration as the said institution was a High School granted recognition in March 1998. The requirement of law under Rule 4(2)(c) is teaching experience in a recognized school. Rule 2(h) of 1978 Rules defines "Recognized School" to mean "Recognized Junior High School" and not High School. Otherwise also, appointments in any capacity even in a recognized High School is governed by the provisions of U.P. Intermediate Education Act, 1921 and the regulations framed thereunder and U.P. Secondary Education Services Selection Board Act 1982. The minimum qualification for appointment in the recognized institution of High School level and above is provided in Appendix A of Chapter II of Regulations framed under the Act of 1921. Section 16 E (3) of the U.P. Intermediate Education Act, 1921 as well as section 16 of the Act of 1982 specifically provide that teachers possessing the prescribed minimum qualification as per Appendix A of Chapter II of the Regulations alone can be appointed in any capacity as a teacher in a recognized High School . Not only this, section 16 of 1982 Act further declares that appointment made in the contravention of the provisions would be void. There are only few recognized methods of appointment in any capacity in a recognized High School or Intermediate School which is either by direct recruitment following the procedure as prescribed under 1982 Act and adhoc appointments as per the provisions of Removal of difficulty 1981 Act or appointments as contemplated under section 7(AA) of 1921 Act or appointments in temporary vacancies under section 16 E (II). All such appointment in a recognized institution in any capacity as a teacher requires mandatory minimum qualification. In Junior High School even for temporary appointment under Rule 20 of 1978 Rules mandatory minimum qualification is prescribed. That apart even adhoc and temporary appointment in any recognized institution will require the same minimum qualification as is required for substantive appointment. Learned single Judge has held that the petitioner not having mandatory qualification of teachers training course at the relevant time, which is minimum requirement of being appointed in a recognized institution could not have been appointed and such an appointment is a void appointment, therefore, any experience gained would not come to the benefit of the petitioner as compared to the candidate who had the required teachers training course .
For any candidate to gain teaching experience, it would be essential that he must work as a teacher in an institution. In order to work as a teacher in an institution which are governed by statutory provisions, he is necessarily to be appointed on a post notwithstanding whether the post is substantive, temporary or adhoc. For any appointment in such kind of institution, minimum qualification and procedure for engagement/appointment is prescribed. The rules provide that a teacher in order to be appointed in any capacity in a recognized institution must be a trained teacher. Prior to the amendment in 1978 Rules, B.Ed. was not the qualification to fulfill the criteria of a trained teacher. B.Ed. was included for the first time only after amendment in the rules in 2008. Undisputedly and admittedly, the appellant got his B.Ed. Degree only in the year 2006. So during the period he claims himself to have gained experience of teaching in the recognized institution as a teacher, i,e,, from 16.8.1988 to 21.11.2008, he did not have the minimum prescribed qualification of being a trained teacher to be appointed in any capacity in a recognized institution. Therefore, if the petitioner did not have qualification to be appointed as a teacher in a recognized institution, any experience gained pursuant to such an appointment, if at all, in view of unambiguous language of statute, cannot be taken as a valid experience as against the candidate who had a valid teacher training certificate.
In view of the discussion above, in our considered view, the writ petition was maintainable by the respondent petitioner and the appellant cannot be held to be having necessary and prescribed minimum qualification of having 5 years teaching experience in the recognized institution for being considered for appointment on the post of Head Master pursuant to the advertisement dated 24.10.2008.
Under the facts and circumstances as narrated above, we are in respectful agreement with the judgment of the learned Single Judge and learned counsel for the appellant has not been able to persuade us to take any different view from that of learned Single Judge.
In our considered view, the experience gained by the appellant on the basis of appointment in a recognized institution which are governed by the statutory provisions and there being a bar to any appointment which is contrary to the law in the statute itself , such an experience gained on such void and illegal appointment cannot be pressed forth for seeking eligibility for appointment on the post of Head Master as against the candidates who fulfill the required criteria as per the statute without taking the aid of any abstract principle of law.
The special appeal is accordingly dismissed.
Order Date :- December 7 , 2012 VPC