Ram Naresh Misra vs U.P. Secondary Education Service Selection Board, Allahabad and Others

V.K. Shukla, J.—In the district of Jyotiba Phule Nagar, there is duly recognised institution known as Inter College, Jamuna Khas, District Jyotiba Phule Nagar. Said institution is to be run and managed strictly as per the provisions as contained under U.P. Intermediate Education Act, 1921. The institution in question is on the grantinaid list of the State Government and the provisions of U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971 is fully application to the institution in question. Selection and appointment on the post of Principal is to be made strictly as per provisions as contained under U.P. Secondary Education Services Commission and Selection Board Act, 1982. In the institution in question, the permanent Principal, Rajveer Singh, attained the age of superannuation, giving rise to substantive vacancy on the post of Principal. The petitioner by virtue of being senior most teacher was handed over the charge of the office of the Principal. His signatures were attested and fixation of salary in the Principal''s grade was also made with effect from 01.09.1999. The post in question was advertised by the U.P. Secondary Education Services Selection Board vide advertisement No.1/19992000 published on 24.12.1999. After the said advertisement had been issued, the petitioner filed writ petition No.6852 of 2000 before this Court questioning the validity of advertisement No.1/19992000 dated 24.12.1999 to the extent it pertained to the post of Principal of Inter College, Jamuna Khas, J.P. Nagar, and further prayer was also made to extend the benefit of regularisation by declaring the provisions of Section 33C (1) (a) (i) of U.P. Act No. 5 of 1982 as ultra vires. On presentation of writ petition on 09.02.2000, this Court passed an order to the effect that if the petitioner was working on the post of Principal, he would be allowed to continue to function on the said post. Petitioner has contended that the U.P. Secondary Education Selection (hereinafter referred to as Selection Board) proceeded to hold interview. Interview letter was also sent to the petitioner and the petitioner appeared before the Section Board, but no interview took place, and in this background, petitioner submits that the Selection Board is not justified in issuing communication dated 25.06.2008, directing all the District Inspector of Schools of the State to ensure joining of selected candidates in the institutions in relation to which advertisement was issued. Challenging the validity of communication 25.06.2008, the petitioner filed Civil Misc. Writ Petition No.34124 of 2008 before this Court. This Court granted time to the respondents to file counter affidavit. Thereafter panel has been declared and by means of the same name of one Surendra Kumar Chikara was recommended for being appointed as Principal of Inter College, Jamuna Khas. At this juncture Civil Misc. Writ Petition No.13206 of 2009 has been filed.

Pleadings inter se parties have been exchanged, record of Selection proceedings maintained by Selection Board have also been summoned for perusal of this Court, and thereafter, after perusal of records produced by the respective sides, with the consent of the parties, these writ petitions are being heard and decided by common judgment.

Sri Irsad Ali, Advocate has assailed the validity of selection of Sri Surendra Kumar Chikara on the ground that total marks obtained by the petitioner are 285.57, whereas the total marks obtained by Sri Surendra Kumar Chikara are 287.5, and thus difference is of less than 3 marks, and record in question reveals that in spite of the fact that Mr. Surendra Kumar Chiakar was not having to his credit any teachers'' training qualification, he has been awarded 6 marks under the said head and in case the said 6 marks are deducted, then it is the petitioner, who would be placed at serial No. 1 in the panel prepared on the basis of merit. It has also been contended that said six marks towards training could not have been awarded, as same is not at all subscribed by Appendix D of U.P. Secondary Education Service Selection Board Rules, 1998, and with the aid of the guidelines framed by the U.P. Secondary Education Service Selection Board in exercise of its power vested under Section 9 of U.P. Act No. 5 of 1982, such marks could not have been awarded and framing of such guidelines is in total transgression of authority and as such, the same cannot be subscribed, as such the guidelines have necessarily to be ignored and the merit has to be considered strictly as per provisions as contained under U.P. Secondary Education Service Selection Board Rules, 1998. In this background, it has been contended that writ petitions deserve to be allowed.

Countering the said submissions, Sri A.K. Yadav as well as Sri Arun K. Singh I, Advocates representing Selection Board and private respondent, respectively, on the other hand, contended that in the present case rightly 6 marks have been awarded to Sri Surendra Kumar Chikara, as experience could not have been ignored and in lieu of exemption being there such marks were liable to be awarded, and the areas which were not covered under the Rules, the U.P. Secondary Education Service Selection Board has got full authority to frame guidelines and provide marks in order to see that the candidates are equally placed and nobody gets any undue advantage over others in the selection to be held from open market. In this background, it has been contended that the guidelines are just and valid and the marks awarded to Sri Surendra Kumar Chikar under the head of training are in full accordance of the guidelines, and same requires no interference by this Court.

In the State of U.P. matters relating to education and appointment of teachers and Principal/Head Master are governed as per provisions as contained under U.P. Intermediate Education Act. In the year 1982, U.P. Secondary Education Services Commission and Selection Board Act,1982 (U.P. Act No. 5 of 1982) was enacted, whereby the authority to make selection and appointment was taken away from the Committee of Management and a centralised body was constituted to make selection and appointment, and it was mandated to the Management to appoint the teaching staff only on recommendation of the Commission. Sections 9 of the said Act gave authority to U.P. Secondary Education Service Selection Board to prepare guidelines on the matter regarding direct recruitment and promotion, whereas Section 10 provides for procedure of selection by Notification/Advertisement qua posts specified under the schedule, as per the procedure prescribed. Under Section 35 of the said Act, the State government was given authority to make Rules. For convenient perusal of this Court, Sections 9, 10 and 35 of Act No.5 of 1982 are being quoted below:

"9. Powers and duties of the Board. The Board shall have the following powers and duties, namely:

(a) to prepare guidelines on matters relating to the method of recruitment and promotion of teachers;

(b) to conduct examinations, where necessary, and hold interviews and make selection of candidates for being appointed as teachers;

(c) to select and invite experts and to appoint examiners for the purpose specified in clause (b);

(d) to make recommendations regarding the appointment of selected candidates;

(e) to advise the Management in matters relating to dismissal, removal or reduction in rank of teachers;

(f) to obtain periodical returns or other informations from institutions regarding strength of teaching staff and the appointment, dismissal,removal, termination or reduction in rank of teachers.

(g) to fix the emoluments and travelling and other allowances of the experts;

(h) to administer the funds placed at the disposal of the Board;

(i) to perform such other duties and exercise such other powers as may be prescribed or as may be incidental or conducive to the discharge of its functions under this Act or the rules or regulations made thereunder.

Procedure of selection by direct recruitment. (1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the institution,also the number of vacancies to be reserved for the candidates belong to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens in accordance with the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed.

Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under subsection (1).

Power to make rules. The State Government may, by notification, make rules for carrying out the purposes of this Act."

In exercise of authority vested under Section 9 of the Act, Guidelines have been framed for awarding quality point marks. It has been duly ratified by the U.P. Secondary Education Service Selection Board in its meeting dated 02.12.1998, wherein decision has also been taken qua eligibility and ineligibility. Relevant extract of the aforesaid decision as well as guidelines is being quoted below:

Rule 5 deals with academic qualification,which a candidate is required to possess. Rule 12 of the U.P. Secondary Education Service Selection Board Rules, 1998 deals with the procedure for direct recruitment of teachers, Lecturers and Principals/Head Masters. For sake of convenience, relevant extract of Rules 5 and 12 of 1998 Rules, dealing with eligibility criteria and proceeding of selection of Principal/Head Master/Teacher are being quoted below:

"Rule 5. Academic qualification. A candidate for appointment to a post of teacher must possess qualifications specified in Regulation 1of chapter II of the Regulations made under the Intermediate Education Act, 1921.

"12. Procedure for direct recruitment. (1) The Board shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens in at least two daily newspapers, having wide circulation in the State, and call for the applicants for being considered for selection in the pro forma published in the advertisement. For the post of Principal of an Intermediate College or the Head Master of a High School, the name and place of the institution shall be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wises to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.

(2) The Board shall scrutinize the applications and in respect of the post of teacher in lecturers and trained graduates grade, shall conduct written examination. The written examination shall consist of one paper of general aptitude test of two hours duration based on the subject. The centres for conducting written examination shall be fixed in the district Head Quarters only and the invigilators shall be paid honourarium at such rate as the Board may like to fix.

(3) The Board shall evaluate the answer sheets through examiner to be appointed by the Board or through Computer and the Examiner shall be paid honourarium at the rate to be fixed by the Board.

(4) The Board shall prepare lists for each category of posts on the basis of quality points specified in Appendix ''B'' of Appendix ''C'', as the case may be, marks in written examination and marks for experience as follows:

(i) 30 per cent marks on the basis of quality points;

(ii) 40 per cent marks on the basis of the written examination; and

(iii) 20 per cent marks for experience more than the required experience in such manner that 4 marks shall be allotted for having doctorate''s degree and 2 marks shall be given for each year of such experience with maximum of 16 marks.

Note: (1) The teaching experience for this purpose shall be counted only for the recognised High School/Intermediate College

(s) or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Head Master and counter signed by the District Inspector of Schools or Zila Basic Shiksha Adhikari, as the case may be,with full name of the countersigning authority;

(2) Any wrong information submitted in this regard shall make the applicants of such candidates liable to be rejected and for this the candidate himself shall be solely responsible.

(5) The Board shall, in respect to the selection for the post of Headmaster and Principal, allot the marks in the following manner

(i) 60 per cent marks on the basis of quality points specified in Appendix ''D'';

(ii) 20 per cent marks for having experience more than the required experience, 1 mark for each research paper published with

a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks; and

(iii) 10 per cent marks for having doctorate degree.

Note: For the purposes of calculating experience, the service rendered as Headmaster of Junior High School or as assistant teacher in a High School/Intermediate College shall be counted in the case of selection of Headmaster and for selection of Principal, the service rendered as Headmaster of a High School or as a Lecturer shall only be counted. The provision of subrule (4) of Rule 12 regarding the certificate of experience shall mutatis mutandis apply."

(6) The Board, having regard to the need for securing due representation of the candidates belong to the Scheduled Caste, Scheduled Tribes and other Backward Classes of citizens in respect of the post of teacher in lecturers and trained graduates grade, call for interview such candidates who have secured the maximum marks under subclause (4) above/and for the post of Principals/Head Master, call for interview such candidates who have secured the maximum marks under subclause (5) above in such manner that the number of candidates shall not be less than three and nor more than five times of the number of vacancies:

Provided that in respect of the post of Principal or Head Master of an institution the Board shall also in addition call for interview, two senior most teachers of the institution whose names are forwarded by the Management through Inspector under clause (b) of subrule (2) of Rule 11.

(7) The Board shall hold interview of the candidates and 10 per cent marks shall be allotted for interview. the marks obtained in the written test and the quality points by the eligible candidates shall not be disclosed to the members of the Interview Board.:

Provided further that in the interview, ten per cent marks shall be divided in the following manner:

(i) 4 per cent marks on the basis of subject/general knowledge;

(ii) 3 per cent marks on the basis of personality; and

(iii) 3 per cent marks on the basis of ability of expression

(8) The Board then, for each category pf post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under subclause (4) or sub clause (5) above, as the case may be, with the marks obtained in the interview. The panel for the post of Principal or Head Master shall be prepared institutionwise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for the posts in the lectures and trained graduates grade, it shall be prepared subjectwise and groupwise respectively. If two or more candidates obtain equal marks,the name of candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality pints are also equal, then the name of candidate who is older in age shall be placed higher In the panel for the post of Principal or Head Master,the number of names shall be three times of the number of vacancy and for the post of teachers in the lecturers and trained graduates grade, it shall be larges (but nor larger than twentyfive per cent) than the number of vacancies.

Explanation. Fort he purposes of this subrule, the word "groupwise; means in accordance with the groups specified in the Explanation to subrule (2) of Rule 11.

(9) At the time of interview of candidates, for the teachers in the lecturers and trained graduates grade the Board shall, after showing the list of institutions which have notified the vacancy to it, require the candidate to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.

(10) The Board shall after preparing the panel in accordance with subrule (8), allocate the institutions to the selected candidates in respect of the posts which of teachers in the lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with sub rule (9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated such institutional and thee remains no vacancy in them, the Bard may allocate any institution to him as it may deem fit.

(11) The Board shall forward the panel prepared under subrule 8 along with the name of the institutions allocated to the selected candidates in accordance with subrule (10) to the Inspector with a copy thereof to the Joint Director of Education and also notify them on its notice board."

"APPENDIX D

[See Rule 12 (5)]

Quality points for selection of Principal of an Intermediate College/Head Master of a High School.

Name of examination Quality Points

High School The percentage of Marks

10

Intermediate The percentage of Marks x 2

10

Graduate degree The percentage of Marks x 4

10

Postgraduate degree The percentage of Marks x 8

10

Others First Div. Second Div. Third Div.

Training

(a) Theory 12 06 03

(b) Practical 12 06 03

Subrule (1) of the aforesaid Rule 12 in so far as it relates to selection of Principals/Head Masters, provides for advertisement being made in at least two newspapers giving name and place of the institution and candidate is required to give preference qua his choice for institution and thereafter as per sub rule (6) of Rule 12, the Commission is to scrutinise the applications and prepare a list having due regard to the marks obtained under subrule (5) of Rule 12. The Commission is required to call five candidates for each vacancy on the basis of quality point marks secured by them. The first such evaluation is done on the basis of Appendix D of 1998 Rules, which provides for awarding quality point marks. For minimum qualification marks are awarded at item 1 to 4 based on the percentage of marks secured in High School, Intermediate, Graduate degree and Postgraduate degree in accordance with the column noted therein. Item 5 deals with awarding marks for training depending upon whether the candidate has secured I, II or III Division in Theory and Practical. Subrules (7) and (8) of Rule 12 of the aforesaid Rules obligates the Commission to hold interview of candidates found suitable for appointment in order of merit and prepare panel for the post of Principal/Head Master has to be prepared institutionwise, keeping in view the preference given by the candidates.

Guidelines have been framed in exercise of authority vested under Section 9 of U.P. Act No. 5 of 1982, which incorporates powers and duties of the Commission and its authority of preparing guidelines meant for method of recruitment and promotion of teachers.

At this juncture, the view point of this Court as well as Hon''ble Apex Court, while considering the validity of guidelines visavis, the provisions of U.P. Secondary Education Service Selection Board Rules, 1998 is being looked into. In the case of Anand Narain Singh Vs. U.P. Secondary Education Service Selection Board, Allahabad and others, (2001) 2 UPLBEC 959, took the view that the Rules and Guidelines are mixture of experience and of academic qualification and it gives importance to both of them, and it cannot be said to be unreasonable. In the said case awarding of 4% marks to senior most teachers, who did not have any research paper to their credit, has been approved of, based on guidelines. Relevant extract of the aforesaid judgments (paragraphs 76, 77, 78, 81, 87,89 and 93 of Anand Narain Singh''s case (supra) are being quoted below:

"76. Rule 12 (5) (ii) of the Rules contemplates awarding makrs on experience for more than the required one. Two percent of marks are to be allotted for each year''s experience, which is more than the required experience it can to up to maximum of 16%. One percent of marks is to be awarded for every published research paper with maximum of 4%. this is how 20% of marks under Rule 12 (5) (ii) have been divided.

The Board has applied aforesaid procedure for direct applicants. 16% marks have been allotted on the basis of experience. Note to Rule 12 (5) of the Rules indicates that provisions of Rule 12 (4) regarding certificate of experience will apply to Rule 12 (5) also. Not to Rule 12 (4) states that certificate of experience should state that date of appointment, date of joining, and scale of pay. It should be duly signed by the Principal/Head Master and countersigned by the District Inspector of Schools or District Basic Shiksha Adhikari, as the case may be, This is the only way the service records of direct applicants are scrutinised. This is indirect and gives little (or in fact no) importance to service records; it gives importance to length of service.

The Board has framed guidelines. Paragraphs 15 to 19 of the guidelines (Appendix 6) indicate how 20% of marks under Rule 132 (5) (ii) are to be al;located to two senior most teachers. In substances it first fives 1% of marks on each published research paper to the maximum of 4%. thereafter, remaining 20% in case there are no published research papers, then 20% entirely, are given on the basis of character roll entry of two senior most teachers. They are given 2% of marks for each year for the years in which character roll entries are excellent or very good, or good, or satisfactory after the first four years (the minimum requirement). so far as tow senior most teachers are concerned, their service records are seen directly.

Under the Act or the Rules or the guidelines applicable, there is no head as ''Administrative ability regarding school management.'' There is no provision for considering the service records of the direct applicants. The records of direct applicant are seen only for calculating marks on experience as indicated by me under subheading ''For Direct Applicants" (Paragraphs 76 and 77). the guidelines here mention service records of two senior most teachers should be considered. they have been considered in these cases. there is nothing on the record to show that records of two senior most teachers as indicated in the guidelines have not been considered.

Here the Rules and the guidelines area mixture of experience and academic qualifications. It gives importance to both of them. It cannot be said that it is unreasonable. Neither can it be set aside on the ground that it does not give any importance to service records( in fact it does), nor any recommendation can be quashed on this ground.

Under the note to Rule 15 (5) (ii) a maximum of 16% marks could be awarded on the basis of experience more than the required experience and 4% on the published research paper. Under these rule record is not seen directly, only length of service is seen. Then how could service records be seen under the guidelines? How could be the Board provide different allocation of marks for the two senior most teachers?

The Board has framed guidelines (Appendix6) under Section 9 of the Act to reconcile Rule 11 (2) (b) and rule 12 (5) (ii). The Board has indicated how 20% of the marks that are meant for experience under Rule 12 (5) (ii) maximum of 4% marks be given on the basis of published research papers and 10% marks are to be given on the basis of doctorate degree under Rule 12 (5) (iii) of the Rules i.e. 74% can be awarded on the basis of academic qualification. Whereas maximum of 16% marks could be awarded on experience under Rule 12 (5) (ii) for direct applicants and 20% marks can be awarded to the two seniormost teachers on service records under the Rules and the guidelines."

Hon''ble Apex Court in the case of Kiran Gupta and others vs. State of U.P. and others, (2000) 3 UPLBEC 2765, took following view:

"11. A perusal of S. 9 shows that it enumerates the powers and duties of the Commission which include preparation of guidelines on matters relating to the method of recruitment and promotion of teachers. It is the validity of Cl. (a) of S.9 that is impugned on the ground of delegation of essential legislative functions. In our view, the contention is wholly misconceived. It is too late in the day to question the delegation of legislative functions to the Government or a subordinate authority. However, what cannot be delegated is essential legislative functions. It will be useful to reproduce here the observations of Mukherjee, J. In re the Delhi Laws Act, 1912, the AjmerMerwara (Extension of Laws) Act, 1947 and Part C States (Laws) Act, 1950 (1951 SCR 747 at 982 : (AIR 1951 SC 332 at p. 400) :

"If the legislature hands over its essential legislative powers to an outside authority that would, in my opinion amount to a virtual abdication of its powers and such an act would be in excess of the limits of permissible delegation. The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy."

The essence of the essential legislative function lies in the legislature formulating a policy in respect of a matter within its field of legislation and translating it into words of an enactment to clothe it with binding authority. The legislative policy, as could be gathered from the aforementioned provisions appears to us to constitute a Commission which is a statutory body consisting of experts and leave the question as to how it should proceed with the method of recruitment and promotion of teachers to the posts of Principals/Headmasters to that Commission. A plain reading of that clause shows that the legislature has delegated the power of preparation of guidelines on matters relating to the method of recruitment to the Commission which is in the sphere of effectuation of the legislative policy rather than in realm of laying down a legislative policy.

The composition of the Commission under S. 4 of U.P. Act No. 5 of 1982 is as follows :

"4. Composition of the Commission.

(1) The Commission shall consist of a Chairman and not less than six and not more than eight other members to be appointed by the State Government.

(2) Of the members

(a) One shall be a person who occupies or has occupied, in the opinion of the State Government, a position of eminence in judicial services;

(b) Two shall be persons who occupy or have occupied, in the opinion of such Government, a position of eminence in the State Education Services; and

(c) Others shall have teaching experiences as

(i) Professor of any University established by law in Uttar Pradesh; or

(ii) Principal of any college recognised by or affiliated to any such University for a period of not less than ten years; or

(iii) Principal of any institution recognised under the Intermediate Education Act, 1921 for a period of not less than fifteen years.

(3) Every appointment under this section shall take effect from the date on which it is notified by the State Government."

A bare reading of S.4 makes it evident that the Commission was composed of members of whom one member was having a position of eminence in judicial services and the other members were experts in the field of education. Inasmuch as the Commission was an expert body and it was entrusted with the duty of selection of Teachers, Principals/Headmasters, it would be the most competent body to lay down guidelines on matters relating to method of recruitment and promotion of teachers to the posts of Principals/Headmasters. Indeed laying down of guidelines by the Commission in such matters when it is so authorised by an Act of legislature or by statutory Rules is a well accepted principle and no exception can be taken to it. (See Dr. Krushna Chandra Sahu v. State of Orissa (1995) 6 SCC 1 : (1995 AIR SCW 4177 : AIR 1996 SC 352 : 1996 Lab IC 53)."

Thereafter, the judgment of Anand Narain Singh''s case (supra) was subject matter of consideration in Special Appeal No.159 of 2001, Anand Narain Singh Vs. U.P. Secondary Education Service Selection Board and others, decided on 29.09.2003, and therein also Division Bench of this Court upheld the validity of the Guidelines. Relevant extract of the judgment is being quoted below:

"The Board has indicated that how 20% of marks that are meant for experience under Rule 12(5)(ii), are to be awarded. This is done on the basis of the service records of the two seniormost teachers. This procedure has been adopted to reconcile Rule 11(2)(b) and 12(5)(ii) for the two seniormost teachers and as such the learned Single Judge has rightly held that there is no justification to set aside these guidelines or to reduce the marks allotted to the two seniormost teachers on the basis of the guidelines.

So far as consideration of the service record of the two seniormost teachers and awarding of only 4 marks out of 100 as provided in Rule 12(5) of the Rules is concerned, it may be mentioned here that the guidelines framed by the Board allocating 20% marks for experience and taking into consideration 4 marks provided for research papers under clause (ii) of subrule (5) of Rule 12 of the Rules in respect of the two seniormost teacher, the same cannot be said to be illegal as the marks which have been allocated for research paper have been given to the seniormost teacher for their experience. The contention of Dr. Padia that in respect of direct recruit the service records are not produced and their marks are given only on the basis of experience, suffice it to mention that in respect of all other matters except experience and interview, the quality points marks have been fixed both in respect of direct recruits and the two senior most teachers. In respect of experience part, clause (ii) of Rule 12(5) of the Rules allocates the marks under various heads except for the marks allocated for research work, which a direct recruit may be entitled. However, the Board taking into consideration that the senior most teachers may not be having any research work, have allocated these 4 marks for their teaching experience in addition to the marks already provided for experience. Thus, there is no discrimination nor any arbitrary fixation of allocation of marks. The guidelines also do not supersede the provision of Rule 12(5) of the Rules. The decision relied upon by Dr. Padia in the case of Janki Prasad Parimoo (supra) wherein the Hon''ble Supreme Court has held that the service record of all eligible candidates must be considered while making appointment on the post of the Principal is of no help as in the present case the Board is making the selection in accordance with the Rules framed by the State Government wherein specific allocation of marks have been provided under different heads under subrules (5) and (7) of Rule 12 of the Rules. Even though no emphasis has been given on the service record but the experience and academic qualification as also performance in the interview has been provided for selecting a candidate. Therefore, the selection made on the basis of the provisions of subrules (5) and (7) of Rule 12 of the Rules cannot be said to be illegal."

Subsequent to the same aforesaid judgment of the Division Bench was subject matter of challenge before the Apex Court in the case of Balbir Kaur vs. U.P. Secondary Education Service Selection Board and others, (2008) 3 UPLBEC 2376, and therein the aforesaid judgment to the extent it disapproved advertisement has not been approved of by Hon''ble Apex Court. However said judgment has been approved of on rest of the points, which were argued before the Hon''ble Apex Court.

The question is could 6 marks in the absence of there being any training qualification could have been awarded to Sri Surendra Kumar Chikara on the basis of Guidelines framed. Rule 5 of 1998 Rules mentions that a candidate for appointment to a post of teacher must possess qualifications specified in regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921. Appendix A of the said Regulation provides that a candidate must possess qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921. For ready reference Appendix ''A'' of Chapter II of the Regulations framed under U.P. Intermediate Education Act, 1921 is being extracted as below:

"APPENDIX A

(In reference to Regulation 1 of Chapter II)

Minimum eligibilities for appointment of Heads and teachers in nonGovernment recognised Higher Secondary Schools.

For the purpose of minimum eligibilities prescribed under this,the degree and diploma in concerned subject of any University established or issued under or by any Central Act, Provincial or State or any institution which is considered as University under Section 3 of the University Grants Commission Act, 1956, or of any such institution specially empowered by any enactment of Parliament shall be admissible.

In relation to prescribed eligibilities the word "trained" means post graduate training eligibility i.e. L.T., B.T., B. Ed., B. Ed. Sc. or M. Ed. or any equivalent diploma or degree of any University or or institution as referred to in the preceding para. Departmental A.T.C. and C.T. with at least 5 years'' experience of teaching would be inclusive under this. Teachers having J.T.C./B.T.C. would be deemed as C.T. if he has worked for at least 5 years in C.T. grade.

Essential Qualifications

Sl. No.

Name of the post

Essential Training Experience

Age

Desirable qualifications

Head of the institution

(1) should be trained M.A. or M.Sc. or M.Com or M.Sc. (Ag) or any equivalent Postgraduate or other degree which is conferred by any body as referred to in above para and should possess teaching experience from any training institution recognised by the department or any degree college affiliated with any University or institution or any degree college affiliated with such institution as referred to in above mentioned first para, or at least four years teaching experience in classes 912 in anyinstitutioin recognised by Board or in any institution affiliated with the Boards of other States or alike institutions, whose examinations are recognised by Board, or should possess at least four years experience as trained graduate Head Master in any Junior High School recognised by Deptt. Provided that he/she should not be less than thirty years of age

(2) Teaching experience of ten years in Intermediate classes of any recognised institution with first or second class postgraduate degree, or third class post graduate degree with 15 years'' teaching experience.

(3) Post graduate diploma holder in Science; provided that he has has passed diploma course in first or second class and has served meritoriously for 15 years or 20 years respectively in any recognised institution after passing such diploma course.

Note (1) At least second class post graduate degree and on special teaching experience of 10 years in Intermediate classes of recognised institution, training eligibility of of Asstt. teachers may be relaxed (As per the provisions in the Act).

(2) Teaching prior to training or after training both, are included in teaching experience.

(3) Higher classes means classes 912 and teaching experience of these classes is admissible for the post of Principal in Intermediate College.

Minimum 30 years

The aforesaid Appendix provides three alternative qualifications. The first being Trained M.A. or M. Sc. or M. Com. or M. Sc. (Ag) or any equivalent post graduate or any other degree which is awarded by corporate body specified in above mentioned para one and should have at least teaching experience of four years in class 9 to 12 in any training institute or in any institution. The second qualification which has been provided for is that the candidate should have 10 years teaching experience of Intermediate classes of any recognised institution with first of second class Postgraduate degree and of third class Postgraduate degree with 15 years teaching experience. Third qualification, which has been provided for is Postgraduate Diploma holders in Science with the condition that he has passed diploma course in first or second class and has served meritoriously for 15 years or 20 years respectively in any recognised institution after passing such diploma course. These are three alternative qualifications provided for being appointed on the post of Principal under AppendixA of Chapter II of U.P. Intermediate Education Act, 1921. Said qualification is further qualified by the note introduced to Section 12 of U.P. Act No. V of 1982.

Hon''ble Apex Court in the case of Balbir Kaur vs. U.P. Secondary Education Service Selection Board, 2008 (3) UPLBEC 2376, keeping in view the provisions of Section 32 of U.P. Act No. V of 1982 has taken the view that note to Section 12 will prevail, and teaching experience as contemplated under the "Note" would apply to both the required experience and the experience more than that,and therefore, even for required experience only service record as Head Master/Lecturer is relevant.

The first qualification which has been provided for deals with teachers'' training and as far as qualification Nos. 2 and 3 are concerned, same do not deal with teachers training. Under Appendix D to U.P. Secondary Education Service Selection Board Rules, 1998, marks have been provided for based on High School, Intermediate, Graduate and Masters degree and towards teachers training qualification, both Practical and Theory. Appendix D is completely silent in respect of awarding marks to Diploma holders and in respect of the candidates, who on account of their experience are exempted from training and candidates who have passed examination based on Grade and who have passed Higher Secondary Education. The U.P. Secondary Education Service Selection Board is an expert body consisting of eminent members constituted in terms of Section 4 of U.P. Act No. V of 1982 and is entrusted with the duty of selection of Teachers/Principals/Head Masters, in its wisdom in order to carry out the aims and objects of the Act, has proceeded ahead to frame guidelines clearly in exercise of its authority vested under the Act and the Rules, and therein, it has been provided for qua the incumbents, who have been exempted from training qualification on account of experience, then on minimum side, he would be awarded 3 marks for theory and 3 marks for practical, and the other candidates who have got Postgraduate Diploma to their credit, they would be awarded 1/2 marks qua postgraduate degree. Thus a conscious decision has been taken by the expert body for keeping at par all the three category of the candidates by workingout details within the framework of said policy. Said provision in no way is in violation of the provisions as contained under U.P. Act No. 5 of 1982 or U.P. Secondary Education Service Selection Board Rules, 1998 and framing of such guidelines is within the domain of the U.P. Secondary Education Service Selection Board, qua unspecified field as in specified field minor details were lacking and missing and once in the said direction in the fitness of things conscious decision has been taken to balance all the three category of eligible candidates not overreaching the ceiling limit of maximum 60% marks provided towards possessing academic qualification, qua various heads specified therein. Action taken is within the framework of said Rules, then challenge on this score cannot be subscribed.

Sri Irshad Ali, learned counsel for the petitioner also contended that by virtue of being M. Ed. his client was entitled for 3 marks, and then in that event, he would have stood over and above the merit status of Mr. Surendra Kumar Chikara. This claim of the learned counsel for the petitioner cannot be accepted for the simple reason that at the point of time when selection proceedings had taken place, such provision for providing 3 marks to M. Ed. degree holders was not subscribed by any statutory provision and subsequent amendment in the Rules would not confer any right to get such marks.

No other point was pressed.

Consequently, selection of Sri Surendra Kumar Chikara on the post of Principal at Inter College, Jamuna Khas, District Jyotiba Phule Nagar, cannot be faulted. Writ petitions are dismissed.