Vivek Mudgil vs State of Uttar Pradesh

The special appeal has arisen from a judgment of the learned single Judge dated 19 March, 2015. The appellant is aggrieved by the dismissal of his writ petition1 filed under Article 226 of the Constitution seeking to question the legality of an order dated 10 December, 2008 passed by the U.P. Secondary Education Services Selection Board2, cancelling the appointment of the appellant as Principal of the Saras wati Inter College, Jhansi. The order of appointment which was issued on 11 July, 2008 was cancelled on 10 December, 2008 on the ground that, on the last date for the submission of applications, the appellant did not fulfill the qualifications prescribed for the post of Principal. An advertisement was issued by the Board on 3 March, 2002 for appointment to the post of Principal. The date for the submission of applications was 30 March, 2002. The qualifications prescribed were (i) the possession of a post-graduate degree from an institution or university established in accordance with law; (ii) possession of a training qualification namely, B.Ed., L.T., B.T and B.P. Ed. The advertisement contained a stipulation requiring a teaching experience of ten years in Intermediate classes of any recognised institution together with a post-graduate degree in the first or second class or a teaching experience of fifteen years for a candidate possessing a post-graduate degree in the third class.

The appellant was appointed as a Lecturer in Physics and his services have been regularised with effect from 12 January, 1990. The appellant had proceeded on study leave between 15 April, 1992 and 8 March, 1996. It is not in dispute that on the last date for the submission of applications, the experience of the appellant was nine years and three months as against the required norm of ten years. The Board prepared a panel of selected candidates in which the name of the appellant was included on 1 August, 2002. In the meantime, litigation took place before this Court in which selections made by the Board to the post of Principals in Intermediate Colleges including the institution in which the appellant had been selected were called into question. Writ petitions were filed before a learned single Judge of this Court and the matter was carried in appeal before a Division Bench which quashed the panel of selected candidates. Eventually on 16 May, 2008, the Supreme Court allowed all the appeals and vacated the interim orders which had operated in respect of the panel prepared by the Board. The appellant joined as Principal of the college on 15 July, 2008. A complaint was made to the District Inspector of Schools, Jhansi on 18 July, 2008 on the ground that the appellant did not possess ten years of teaching experience which was mandatory for selection to the post of Principal under the U.P. Secondary Education Services Selection Board Rules, 19983 read with Regulation 1 of Chapter II of the Regulations framed under the Intermediate Education Act, 19214 in Appendix ''A''. The appointment of the appellant was cancelled on 10 December, 2008 which led to the filing of the writ petition. The learned single Judge has dismissed the writ petition by the impugned judgment and order dated 19 March, 2015 holding that (i) the period during which the appellant was on study leave did not qualify as teaching experience; (ii) on the last date for the submission of applications, the appellant failed to meet the required qualifications inasmuch as he did not possess ten years of teaching experience; and (iii) an appointment which was illegal could not be protected under Article 226 of the Constitution as that would amount to the perpetuation of an illegality.

The submission which has been urged on behalf of the appellant by learned Senior Counsel is that the possession of ten years'' teaching experience cannot be regarded as an essential qualification. The submission is founded on the premise that under Section 16-E(3) of the Act of 1921, there is a bar to the appointment of the Head of an institution or a teacher who does not possess the minimum qualifications prescribed by the Regulations but the proviso contemplates that a person who does not possess such qualifications may also be appointed if an exemption has been granted to him by the Board of Intermediate Education having regard to his education, experience and other attainments. The Board, it has been submitted, had issued a general circular on 15 April, 1977 contemplating the grant of an exemption subject to fulfilment of certain conditions. Though concededly, no exemption was granted to the appellant, learned counsel submitted that the provisions contained in the circular dated 15 April, 1977 would indicate that the possession of teaching experience of ten years was not regarded as mandatory. Moreover, it was urged that though the State Legislature subsequently enacted the U.P. Secondary Education Services Selection Board Act, 19825, Section 32 provides that the provisions of the Act of 1921 and the Regulations framed thereunder would continue to be in force for the purposes of selection and appointment, among other things, insofar as they are not inconsistent with the provisions of the Act of 1982. It was urged that the power to grant exemption under Section 16-E(3) of the Act of 1921 is not inconsistent with any of the provisions of the Act of 1982.

The State Legislature enacted the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 to establish a Board for the selection of teachers in institutions recognised under the Act of 1921. The Statement of Objects and Reasons accompanying the introduction of the Bill in the State Legislature provides the rationale for the enactment of a separate legislation for the selection of Principals, Lecturers, Headmasters and Teachers. The Statement of Objects and Reasons reads as follows:--

"The appointment of teachers in secondary institutions recognised by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and regulations made thereunder. It was felt that the selection of teachers under the provisions of the said Act and the regulations was sometimes not free and fair. Besides, the field of selection was also very much restricted. This adversely affected the availability of suitable teachers and the standard of education. It was therefore, considered necessary to constitute Secondary Education Service Commission at the State level, to select Principals, Lecturers, Headmasters and L.T. Grade teachers, and Secondary Education Selection Boards at the regional level, to select and make available suitable candidates for comparatively lower posts in C.T./J.T.C./B.T.C. Grade for such institutions."

Chapter II of the Act of 1982 deals with the functions and establishment of the Board. Section 10 provides for the procedure for selection by direct recruitment. Section 11 provides for the preparation of the panel upon a vacancy being notified under sub-section (1) of Section 10. Section 16(1) provides that notwithstanding anything to the contrary contained in the Act of 1921 or the Regulations framed thereunder, every appointment of a teacher shall be made by the management only on the recommendation of the Board. The Board is vested with the rule making power under Section 35 for carrying out the purposes of the Act. In pursuance of the power to frame Rules, the Uttar Pradesh Secondary Education Services Commission Rules, 1998 have been framed. Rule 5, which stipulates the academic qualifications, is as follows:

"5. 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."

The expression ''Teacher'', it must be noted, is defined in Section 2(k) of the Act of 1982 to mean a person employed for imparting instruction in an institution and includes a Principal or a Headmaster. Rule 5 of the Rules of 1998 incorporates the qualifications which have been specified in Regulation 1 of Chapter II of the Regulations made under the Act of 1921. The essential qualifications for the post of the Head of the Institution, as prescribed in Appendix ''A'' to Regulation 1 of Chapter II of the Regulations framed under the Act of 1921 are as follows:--

Clause (1) of the qualifications, as prescribed, requires that a person must be a trained post-graduate and should possess stipulated experience from a training institution. It is not in dispute that the appellant did not fulfill the requirement in Clause (1). In Clause (2) what is provided is a teaching experience of ten years in intermediate classes of any recognised institution with a first or second class post-graduate degree, or teaching experience of fifteen years with a postgraduate degree in the third class. Admittedly, the appellant did not fulfill the requirement of having an experience of ten years in teaching intermediate classes on the last date for the submission of applications.

The submission, however, which has been urged on behalf of the appellant is that the requirement of teaching experience of ten years was not an essential qualification and was capable of being relaxed.

Now, at the outset, it must be noted that Clause (2) applies to a situation where a candidate does not possess the required training qualifications as prescribed in Clause (1). In such a case, the Regulations contemplate a teaching experience of a stipulated term together with the holding of a post-graduate degree. The requirement of teaching experience, on the plain terms of the Regulation, cannot be regarded as an unessential or directory requirement. A candidate who does not have a training qualification under Clause (1) can be considered on the basis of teaching experience under Clause (2) and it would be farfetched to hold that the possession of teaching experience of ten years or, as the case may be, fifteen years is not of a mandatory nature. If such a construction were to be placed, that would defeat the very object and purpose of having duly qualified teachers. Such a construction must be discarded. Hence, the requirement of a teaching experience must be treated as mandatory.

The submission based on the provisions of Section 16-E of the Act of 1921 now falls for consideration. Sub-section 3 of Section 16-E provides as follows:--

"16-E. Procedure for selection of teachers and head of institutions.--

... ... ...

(3) No person shall be appointed as Head of Institution or teacher in an institution unless he possesses the minimum qualification prescribed by the regulations:

Provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments."

When the State Legislature enacted the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (U.P. Act No. 5 of 1982), the following provisions were made in Section 32.

"32. Applicability of U.P. Act No. II of 1921.--The provisions of the Intermediate Education Act, 1921 and the Regulation made thereunder insofar as they are not inconsistent with the provisions of this Act or the rules or regulations made thereunder shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher."

Section 32 of the Act of 1982 provides that the provisions contained in the Act of 1921 and its Regulations framed thereunder, shall continue to remain in force for the purposes, inter alia, of selection and appointment, insofar as they are not inconsistent with the provisions of the Act. Under Section 16-E(3), the Board of High School and Intermediate Education was conferred with the power to exempt, in a particular case, a person who does not possess the prescribed qualifications for appointment as a Head of an Institution or a teacher having regard to his education, experience and other attainments.

The matter may be examined from two dimensions. Firstly, the appellant admittedly had not received an exemption from the Board of High School and Intermediate Education as contemplated by the proviso to sub-section (3) of Section 16-E of the Act of 1921. Secondly, after the enactment of the Act of 1982, the Board was constituted for the purpose of making appointment of teachers in institutions governed by the provisions of the Act. The Board was vested with the power to prepare a panel of candidates and as we have already noted, appointments have to be made notwithstanding anything to the contrary contained in the Act of 1921 only on the recommendation of the Board. In exercise of the rulemaking power, the Board has framed the Rules of 1998. Rule 5 provides for the academic qualifications. The academic qualifications stipulated in Regulation 1 of Chapter II of the Regulations made under the Act of 1921 have been incorporated in Rule 5 of the Rules of 1998. No power to grant an exemption has been specifically contemplated in the Act of 1982. The power to grant an exemption which has been conferred upon the Board of High School and Intermediate Education under the Act of 1921, cannot possibly apply to a selection which is governed by the Act of 1982. Once the State Legislature enacted a comprehensive legislation in 1982, the object of which was to deal with the mal-practices which were noticed in the functioning of the institutions under the Act of 1921, it cannot be held that after the entire process of selection and appointment was vested in the Board, there would, nonetheless, be a power to grant an exemption vested in the Board constituted under the Act of 1921. That power of exemption cannot be attracted to the selections and appointments to be made in pursuance of the Act of 1982. The power to prescribe qualifications is incidental to the power to make selections and appointments and, in any event, the matter has been placed beyond doubt by the specific provisions of Rule 5 which govern the qualifications which a candidate must possess in order to be eligible for appointment as a teacher. Those qualifications are mandatory and cannot be relaxed.

The learned single Judge has relied on the decision of the Supreme Court in Rakesh Kumar Sharma Vs. Govt. of NCT of Delhi and Others, (2013) 10 SCALE 42 : (2013) 11 SCC 58 : (2013) 4 SCT 543 , in which it has been held, inter alia, that a candidate who does not possess the requisite qualifications on the last date for the submission of the application would be ineligible for selection. The Supreme Court emphasised that there may be a large number of candidates who are not eligible in terms of the requirements under the Rules or advertisement, since they did not possess eligibility on the last date for the submission of the application forms. Granting benefit to one candidate would be violative of the doctrine of equality since a large number of other candidates may not have applied, considering themselves to be ineligible in terms of the Rules or in terms of an advertisement. Moreover, there is no obligation on the Court under Article 226 of the Constitution to protect an illegal appointment and the extraordinary power can be utilised only to advance the cause of justice and not to create arbitrariness. Usurpation of a post by ineligible candidates is impermissible.

In the present case, the appellant joined on the post on 15 July, 2008 and his appointment was cancelled within a short period thereafter on 10 December, 2008. The appellant thereafter continued in pursuance of an interim order protecting his services which was passed on 15 January, 2009. No higher equities can be created as a result of an interim order of a Court once the basic conclusion is that the appellant was ineligible for appointment.

Three decisions of the Supreme Court have been relied upon by the appellant in support of the submission that even if the appellant was ineligible on the date for the submission of application forms, that is only an irregularity which can be cured once the appellant had acquired a necessary qualification. The decision in Ram Sarup Vs. State of Haryana and Others, AIR 1978 SC 1536 : (1978) 37 FLR 229 : (1978) 2 LLJ 409 : (1979) 1 SCC 168 : (1978) 10 UJ 773 involved the appointment of a Labour-cum-Conciliation Officer. The candidate had been appointed in that capacity on 1 January, 1968 and had continued until 28 April, 1977. The rules in that case provided minimum educational qualifications and independently, a condition of experience. The Supreme Court held that the appointment of the appellant had been irregular since he failed to possess five years'' experience in the working of labour laws but that the appellant became regular from the date when he completed five years. The view taken was that thereafter the appellant could not have been reverted to the lower post. The facts in that case are clearly distinguishable. For one thing the appellant had continued on the post for nearly nine years but more particularly, the requirement of experience was distinct from the possession of educational qualifications. During the interim period, the appellant had fulfilled the norm of five years'' experience. Similarly, in Buddhi Nath Chaudhary and Others Etc. Vs. Abahi Kumar and Others, AIR 2001 SC 1176 : (2001) 2 SCALE 145 : (2001) 3 SCC 328 : (2001) SCC(L&S) 589 : (2001) 2 SCR 18 : (2001) AIRSCW 1025 : (2001) 2 Supreme 138 , an advertisement was issued for appointment on the post of Motor Vehicle Inspector. All the selected candidates, the Supreme Court emphasised, possessed the necessary qualifications or an equivalent qualification. The only issue was whether a candidate, who did not possess the necessary experience, could be displaced after having been employed for over a decade as a Motor Vehicle Inspector. It was in this context that the Supreme Court held that the lack of experience, if any, at the time of recruitment had been made good since and that equitable considerations would stand attracted. The third decision in Bholanath Mukherjee and Others Vs. R.K. Mission V. Centenary College and Others, (2011) 5 JT 43 : (2011) 4 SCALE 862 : (2011) 5 SCC 464 : (2011) 2 SCC(L&S) 30 : (2011) 2 UJ 1545 : (2011) AIRSCW 2960 , involved a case where a person who was appointed as Principal had less than the teaching experience required. The Supreme Court noted that all the petitioners who had challenged the appointment had ceased to be in service and even if the appointment of me selected candidates was held to be illegal or void, no relief could be granted to the petitioners. In addition to this, the Supreme Court noted that by the time the matter had reached the Supreme Court, the selected candidate would have more than 15 years of required experience for the post of Principal and the ground that he was not qualified for want of necessary experience would no longer be available.

In the present case, it must be noted that the requirement of teaching experience was an essential qualification. Clause (2) incorporated a requirement which would apply to a candidate who did not have the required training qualification. Clause (1) provided a requirement of holding a training qualification and what Clause (2) did, was to allow candidates without a training qualification but with a required teaching experience, to meet the condition of eligibility. In a case such as the present, it would not be proper for the Court to hold that though a candidate does not hold the training qualification, he would nonetheless be regarded as eligible despite a lack of teaching experience. The appointment of the appellant was cancelled within a short duration of five months from the date of joining. The appellant continued only on the strength of an interim order of this Court which cannot confer any higher right or equity. After the order of the learned single Judge dismissing the writ petition, the senior-most candidate, the Court is informed, has already taken charge.

The learned single Judge has adopted a view which is consistent with the legal position. The view of the learned single Judge is also supported by the decision of the Supreme Court. In a special appeal, this Court would not be inclined to interfere where the learned single Judge has taken a view which was founded on a correct assessment of both the facts and the law which has been laid down by the Supreme Court. For these reasons, we see no merit in the special appeal. The special appeal shall accordingly stand dismissed. There shall be no order as to costs.

1Writ A. No. 538 of 2009.

2The Board.

3Rules of 1998.

4Act of 1921.

5Act of 1982.