Vinod Kumar Mishra vs State of U.P. and Others

Arun Tandon, J.—Petitioner Vinod Kumar Mishra claims to have been appointed as L.T. grade teacher in Ganesh Shanker Vidyarthi Inter College, Kanpur (hereinafter referred to as "College") on 30.9.1989. The Petitioner claims to have been working as such since then and in support thereof has placed reliance upon the certificate issued by the Principal of the institution. Petitioner is possessed of a degree of M.A. in Hindi. However, at the graduation level, i.e., B.A., he did not have Sanskrit as one of the subject. The Inter College is aided and recognized under the provisions of the Intermediate Education Act. The U. P. High School and Intermediate Colleges (Teachers and Other Employees) (Payment of Salary) Act, 1971, as well as those of the U. P. Secondary Education Services Selection Board Act, 1982, are fully applicable to the teachers of the institution in question.

One Sri Amrit Lal Singh, who was working as Lecturer Hindi in the institution retired on 30th June, 2001. Petitioner claims that he has been permitted to teach Intermediate Classes subsequent to retirement of Sri Amrit Lal Singh. As the Petitioner did not have Sanskrit as one of the subject at the graduation level [which is admittedly an essential qualification prescribed under Appendix-A to Chapter II of the Regulations framed under the Intermediate Education Act for being appointed as Lecturer (for teaching Classes XI and XII)], he has made an application u/s 16E (3) of the U. P. Intermediate Education Act to the Madhyamik Shiksha Parishad, U. P., Allahabad (Board) for grant of necessary relaxation in the minimum qualification prescribed. The Petitioner, with reference to various documents brought on record, alleges that the Board has not taken any final decision in the matter till date and therefore, seeks a writ of mandamus commanding the Respondents to grant exemption from the essential qualifications prescribed for appointment as Lecturer Hindi.

The Petitioner has also brought on record a copy of the order passed in favour of one Sri Nandan Ballabh Pathak (annexed as Annexure-10 to the writ petition) where under the Regional Secretary, Bareilly, is said to have communicated a decision of the Manyata Samiti of the Bareilly Region dated 12th November, 1997, granting relaxation in the essential qualification prescribed in the similar set of facts.

This Court, while entertaining the present writ petition, on 12th February, 2007, framed two basic issues which arose for consideration in this petition. The issues so framed by this Court as per the order dated 12th February, 2007, read as follows :

(a) Whether Section 16E (3) proviso survives even after enforcement of the provisions of U. P. Secondary Education Services Selection Board Act, 1982 inasmuch as 1982 Act, which provides that appointment shall be made in accordance with the provisions of the U. P. Secondary Education Services Selection Board Act only which would necessarily include the Rules framed thereunder.

(b) Even if it is presumed that the power u/s 16E (3) is exercisable, the said power can be exercised by the Madhyamik Shiksha Parishad. The Director of Education/ Joint Director of Education has no authority of law to grant any relaxation.

Under order of the Court the original records pertaining to Sri Nandan Ballabh Pathak have been produced before this Court. On record is a letter of the Deputy Secretary dated 28.2.2007, relevant portion of which reads as follows :

However, subsequently the original records pertaining to the meeting of the Manyata Samiti of Madhyamik Shiksha Parishad pertaining to Bareilly Region have been produced before this Court. The original minutes of the meeting so produced have been taken on record.

A personal affidavit has been filed by the Secretary of the Madhyamik Shiksha Parishad as well as by the Director (Secondary Education). The Secretary in paragraph 45 of his affidavit has stated that u/s 13 of the Intermediate Education Act the Madhyamik Shiksha Parishad (Board) has been authorized to continue certain committee for different purposes, accordingly there is a Manyata Samiti to look into the matters related to recognition of the institution as well as for relaxation in the essential qualification as prescribed u/s 16E (3) of the U. P. Intermediate Education Act. It has further been stated that the Manyata Samiti was constituted at regional level for Bareilly Region and the said Manyata Samiti of the Bareilly region had in fact granted relaxation in favour of Sri Nandan Ballabha in compliance to the judgment and order of the Hon''ble High Court dated 22.2.1992, passed in Writ Petition No. 22209 of 1990. Various other facts with regard to non-maintenance of the certain records, i.e., agenda of the meeting of the Regional Level Committee has also been stated.

The Chairman of the Board namely the Director in Paragraph 11 of his counter-affidavit has stated that the Secondary Education Board, in view of the decision taken at the level of Manyata Samiti of the Board on 12.11.1997 exercising powers as conferred u/s 16E (3), had granted exemption from qualification prescribed in favour of Sri Nandan Ballabh Pathak.

With regard to Petitioner it has been stated that the Manyata Samiti in its meeting held on 25th June, 2004, considered the request of the Petitioner and with reference to Section 16E (3) read with Regulation 2 (3) of Chapter VII as well as Government order dated 16.3.1979, decided to refuse relaxation in the essential qualification prescribed. For justifying the decision so taken, reliance has also been placed upon the Government order dated 17th March, 1979, whereunder it has been provided that relaxation from the essential qualification of having Sanskrit as one of the subject at graduation level (for promotion on the post of Lecturer) is to be permitted only in respect of teachers appointed prior to 5th April, 1975. In respect of teachers appointed subsequent to 5th April, 1975, it is directed that there shall not be any relaxation in the essential qualifications.

From the records, which have been produced as well as from the stand, which has been taken by the Secretary of the Madhyamik Shiksha Parishad as well as by the Director/ Chairman of the Board, following two divergent facts emerge :

(a) With reference to Sri Nandan Ballabh Pathak it is stated that Regional Level Manyata Samiti of the Bareilly Region decided to grant relaxation in the essential qualification prescribed in its meeting dated 12th November, 1997. From the records it is established that Sri Nandan Ballabh Pathak was not appointed as teacher in the institution concerned prior to 1975. Therefore, the Government order dated 16th March, 1979, referred to by the Chairman in his paragraph 9 of the affidavit was equally applicable in the case of Sri Nandan Ballabh Pathak. The Manyata Samiti does not even refer to the same nor any explanation has been furnished by the Secretary or by the Chairman qua non-consideration of the said Government order vis-a-vis the exemption granted to Sri Nandan Ballabh Pathak, while the same Government order is being relied upon for refusing similar exemption prayed for by the Petitioner.

It is further apparent from the affidavit of the Chairman and the Secretary that relaxation has been granted by the Manyata Samiti at the regional level, said to have been constituted with reference to Section 13 of the Intermediate Education Act. Section 13 reads as follows :

Appointment and Constitution of Committees.--(1) The Board shall appoint the following committees and different committees may be appointed for different areas of the State, namely :

(a) Curriculum Committee ;

(b) Examination Committee ;

(c) Results Committee, 7374 ;

(d) Recognition Committee ; and

(e) Finance Committee.

From the aforesaid provision it is apparent that the power to grant relaxation in the essential qualifications, as applicable at the relevant time vested with the Board alone. The constitution of the Board has been provided u/s 3 (1) of the Intermediate Education Act. Any committee constituted u/s 13 of the U. P. Secondary Education Services Selection Board Act, 1982, is only for the assistance of discharge of its function by the Board. No provision of the Intermediate Education Act permits the Board to delegate its power to any sub-committee and even otherwise having regard to specific language of Section 16E (3), the relaxation, if any, in the essential qualification could be granted by the Board only. Since on record there is no order of the Board granting relaxation in favour of Sri Nandan Ballabh Pathak, this Court has no hesitation to record that the order issued in that regard on the recommendation of the Regional Level Manyata Samiti is no order in the eyes of law with reference to Section 16E (3).

The Petitioner cannot be permitted to take benefit of, or to claim parity with such illegal and arbitrary order, not contemplated by the Act. Consequently, the Court refuses to entertain the plea of parity as claimed by the Petitioner with Sri Nandan Ballabh Pathak.

This leads the Court to examine the issue as to whether subsequent to enforcement of U. P. Secondary Education Services Selection Board Act, 1982, the power conferred u/s 16E (3) of the Intermediate Education Act still survives for grant of relaxation or not.

Section 16 of the U. P. Secondary Education Services Selection Board Act, 1982, provides that appointment on the post of teachers in recognized and aided Intermediate Colleges shall be made in accordance with the said Act only and any appointment to the contrary would be null and void. Reference Section 16 (2) of the Act, which reads as follows :

16 (2) Any appointment made in contravention of the provisions of Sub-section (1) shall be void.

Section 35 of the U. P. Secondary Education Services Selection Board Act, 1982 (U. P. Act No. 5 of 1982), confers a power to make rules for giving effect to the provisions of the Act. U. P. Secondary Education Services Selection Board Rules, 1998, have accordingly been enforced. The qualifications prescribed for appointment of teachers in recognized Intermediate Colleges as per Rule 5 reads as follows :

Academic qualifications.--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.

Section 32 of the U. P. Secondary Education Services Selection Board Act, 1982, declares that the provisions of the Intermediate Education Act, insofar as they are inconsistent with the provisions of the U. P. Secondary Education Services Selection Board Act, 1982, shall be inapplicable and shall therefore, not apply.

From the statutory provisions noticed hereinabove, it may be noticed that the U. P. Secondary Education Services Selection Board Act lays down minimum qualification for appointments of assistant teachers to be the one provided for under Appendix-2 to Chapter II of the Regulations framed under the Intermediate Education Act, this is a case of legislation by incorporation. Meaning thereby that the qualifications laid down in Appendix-A to Chapter II of the Regulations framed under the Intermediate Education Act are broadly lifted and treated to be a part of the U. P. Secondary Education Services Selection Board Act, 1982 and Rules framed thereunder.

The U. P. Secondary Education Services Selection Board Act does provide for any power of relaxation in respect of the qualifications so prescribed. Consequently, appointments under the U. P. Secondary Education Services Selection Board Act can be made only in strict compliance of the qualifications provided as per Appendix-A of Chapter II.

This Court records that the provisions of Section 16E (3) of the Intermediate Education Act cease to be operative qua appointment of teachers in L.T. grade/Lecturer in recognized Intermediate and High School (except minority institutions). It is held that the provisions of Section 16E (3) of the Intermediate Education Act, subsequent to enforcement of U. P. Secondary Education Services Selection Board Act, 1982, will have no application in respect of the teachers who are required to be appointed in recognized institutions (except minority institutions) under the provisions of the U. P. Secondary Education Services Selection Board Act. It is, therefore, held that there exists no power to grant relaxation in the essential qualifications prescribed in respect of appointment of teachers in recognized and aided Intermediate Colleges, appointment where of is regulated by the provisions of the U. P. Secondary Education Services Selection Board Act, 1982. The relief prayed for by the Petitioner, for grant of relaxation in the essential qualification, in the facts of the present case cannot be entertained.

At this stage the Court may also record that Petitioner is justified in contending that the State cannot be permitted to adopt two different standards for two different teachers. Petitioner is right in contending that there is nothing so good about Sri Nandan Ballabh Pathak that he can be granted relaxation from the essential qualifications at the same time the Petitioner being refused similar treatment.

Although this Court may refuse the plea of parity as raised by the Petitioner qua Sri Nandan Ballabh Pathak on the ground that the illegality cannot be permitted to be perpetuated on the plea of parity or similar treatment, yet the Court feels that the matter with regard to Sri Nandan Ballabh Pathak also requires reconsideration by the authorities concerned, not only for the purposes of ensuring that the rule of law applies equally to all as per Article 14 of the Constitution of India more so when public money is involved.

It is, therefore, provided that the Director of Education shall exercise his suo motu power u/s 16E (10) of the Intermediate Education Act and shall examine the legality of the relaxation in the essential qualification prescribed, as granted to Sri Nandan Ballabh Pathak strictly in accordance with law by means of a reasoned speaking order after affording opportunity of hearing to Sri Nandan Ballabh Pathak. The aforesaid exercise may be completed within four weeks from the date the standing counsel communicates the order passed today. In the facts of the case it is further necessary to direct the Secretary, Madhyamik Shiksha, U. P. Government to examine the manner in which the relaxation has been granted in favour of Sri Nandan Ballabh Pathak, specifically the issue of non-consideration of the provisions of Section 16E (3) read with the Government order dated 16th March, 1979. If it is found that there has been deliberate disregard to the provisions as well as the Government order applicable, the officers responsible should be proceeded with departmentally.

Writ petition is dismissed subject to the observations made above.

The original records produced by the standing counsel be returned to the standing counsel by the Bench Secretary.