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Allahabad High Court · body

1976 DIGILAW 151 (ALL)

BHAWANI SHANKAR LAL SRIVASTAVA v. SAMIULLAH KHAN AND

1976-03-08

HARI SWARUP, T.S.MISRA

body1976
T. S. MISRA, J. The petitioner, respondent No. 1 was appointed as officiating principal on the retirement of the then principal Sri Masood Ahmad on March 1, 1968. A Selection Committee was appointed to select a Principal for the College. The Selection Committee selected a panel of names for the post of principal in the order of merit and the petitioner was placed at serial number one in the order of merit. On May 7, 1970 the Chairman of the Selection Committee forwarded the names to the Regional Deputy Director of Education along with a statement as required by Section 16-F (2) of the Intermediate Education Act, (hereinafter called the Act ). This communication was received by the Regional Deputy Director of Education on May 10, 1970. Thereafter the Deputy Director by his letter dated May 16, 1970 Annexure 12, informed the Manager that certain complaints had been received by him on which necessary investigation was being made, hence the recommendations made by the Selection Committee would be considered after the completion of the enquiry. He further stated that the period stipulated in Section 16-F (2) would commence from the date of the completion of the enquiry. To the same effect a telegram was sent by the Deputy Director to Manager, Annexure-10, the contents whereof were confirmed by him vide his letter of May 18, 1970, Annexure 11. Again, on May 28, 1970 the Deputy Director asked the Manager of the College to send the minute book and the character roll of Sami Ullah Khan. Finally by his letter dated August 11, 1970 Annexure-4 the Deputy Director disapproved the recommendation made by the Selection Committee. Agrrieved by that order the Managing Committee preferred an appeal before the Director of Education. That appeal was rejected on March 20, 1971; hence the petitioner No. 1 Sami Ullah Khan as also the Managing Committee filed a writ petition under Article 226 claiming a writ of certiorari quashing the aforesaid orders dated August 11, 1970 and dated March 20, 1971 and for direction to treat the petitioner No. 1 as duly appointed permanent Principal of the institution. The learned Single Judge allowed the writ petition and quashed the said orders. The learned Single Judge allowed the writ petition and quashed the said orders. He also issued a direction that the petitioner No. 1 shall be deemed to have been approved for permanent appointment to the post of Principal of King George Intermediate College, Utraula, as being the first preference candidate recommended by the Selection Committee. Aggrieved by that decision Bhavani Shanker Lal Srivastava opposite party No. 5 has preferred this appeal. For the appellant it was submitted that the learned Single Judge had erred in holding that the recommendation of Selection Committee recommending the appointment of petitioner No. 1 as Principal of the College shall be deemed to have been accepted inasmuch as the Regional Deputy Director of Education did not accord his approval to the same within two weeks from the receipt of the record. The submission was that this period of two weeks, as contemplated by Section 16-F (2), would commence to run from the date of the receipt of all the relevant papers and not from the date of the receipt of some papers which were sent originally by the Chairman of the Selection Committee. It was argued that the Regional Deputy Director of Education had received some complaints the information of which he had also given to the Manager of the College. He had to make enquiries and it was only the completion of the enquiries that a decision could be taken with regard to the recommendation made by the Selection Committee. For making an effective enquiry the Regional Deputy Director needed some papers, which according to the learned counsel for the appellant, would be relevant for ultimately approving or disapproving the recommendation made by the Selection Committee. Since those papers were not received by the Regional Deputy Director within two weeks of the receipt of the letter of May 7, 1970 the period would not commence to run from May 10, 1970 when the letter of May 7, 1970 was received by the Regional Deputy Director. Since those papers were not received by the Regional Deputy Director within two weeks of the receipt of the letter of May 7, 1970 the period would not commence to run from May 10, 1970 when the letter of May 7, 1970 was received by the Regional Deputy Director. In order to appreciate this argument it would be necessary to refer to Section 16-F (2) of the Act which reads asunder: - " 16-F (2)-The name of the selected candidate shall be forwarded for approval, in the case of a teacher by the Principal or Headmaster to the Inspector, and, in the case of Principal or Headmaster, by the Chairman of the Selection Committee to the Regional Deputy Director of Education. A statement showing the names, qualifications and other particulars as may be prescribed, of all candidates who may have applied for selection shall also be sent along-with the name of the selected candidate. The Inspector or Regional Deputy Director, Education as the case may be, shall give his decision within two weeks of the receipt of the relevant papers, failing which approval shall be deemed to have been accorded. " Certain Regulations framed under the Act deal with the appointment of teachers and the Principal of a College. Regulation 9 contained in Chapter II of the Regulations under the Intermediate Education Act provides; " A precis showing the names, qualifications and other particulars in respect of every candidate shall be placed before each member of the Selection Committee. Selection shall be made on the basis of academic qualifications, training teaching or administrative experience and general fitness of the candidate for the post. The Selection Committee shall prepare a note on the proceedings of the selection held, and record its observations about the suitability or otherwise of each candidate. The name of the selected candidates along with two others in the waiting list drawn up in order of merit and the list and the note both signed by the members present at the selection shall be forwarded to the Inspector or Regional Inspectress of Girls Schools, as the case may be, for approval. " Regulation 13 of Chapter II deals with the selection of Principal of a college. It provides that the Committee including its chairman for the selection of Principal or Headmaster shall be constituted on an ad hoc basis for each selection by the Management. " Regulation 13 of Chapter II deals with the selection of Principal of a college. It provides that the Committee including its chairman for the selection of Principal or Headmaster shall be constituted on an ad hoc basis for each selection by the Management. For holding Selection for the post of Principal or Headmaster, the Manager shall get the list of members of the regional panel from the Regional Deputy Director or Regional Inspectress, as the case may be, submit it to the Committee of Management for selecting a member, obtain the consent of the latter to sit on the Selection Committee and arrange for the Selection. Regulations Nos. 4, 8, 9, 11 and 12, foregoing, shall apply mutatis mwtandis to the Selection of Principal or Headmaster. The Chairman of the Selection Committee is required send the names of the selected candidate and two other in the waiting list drawn up in order of merit and necessary papers for approval to the officer concerned. " Reading Regulations 9 and 13 together it is quite manifest that the Chairman of the Selection Committee is required to send to Regional Deputy Director of Education the name of the selected candidate and two others in the waiting list drawn up in order of merit and the note along with necessary papers for his approval. On receipt of the relevant papers the Regional Deputy Director of Education is required to give his decision within two weeks failing which his approval shall be deemed to have been accorded in terms of Section 16-F (2) of the Act. In the case in hand the Chairman of the Selection Committee had by his letter dated May 7, 1970 which was received by the Regional Director of Education on May 10, 1970 sent the papers mentioned in the aforesaid Regulations 9 and 13. The character roll of the petitioner No. 1 was, however, demanded by the Regional Director by his letter dated May 28, 1970. It is not disputed that this document was sent to the Regional Director by the Manager of the Institution. On the contrary it has come on the record that the relevant documents were sent to and received by the Regional Deputy Director of Education on June 10, 1970. Hence all the relevant papers reached the Regional Deputy Director of Education by June 10, 1970. On the contrary it has come on the record that the relevant documents were sent to and received by the Regional Deputy Director of Education on June 10, 1970. Hence all the relevant papers reached the Regional Deputy Director of Education by June 10, 1970. He should have then given his decision according his approval or disapproving the recommendation within a period of two weeks commencing from June 10, 1970, i. e. , by June 24, 1970. The Regional Deputy Director of Education, however, failed to do so. He disapproved of the recommendation made by the Selection Committee by his letter dated August 11, 1970 long after the expiry of two weeks from the date of the receipt of all the relevant papers pertaining to the matter in question. In terms of Section 16-F (2) the approval shall be deemed to have been accorded if no disapproval is made within two weeks of the receipt of the papers. The learned counsel for the applicant however, submitted that as the enquiry was not completed within two weeks of the receipt of all the relevant papers the time contemplated by Section 16-F (2) should not be deemed to have commenced with effect from June 10, 1970 but should be deemed to have commenced from the date when the enquiry was completed. We find ourselves unable to accept this contention. The Regional Deputy Director of Education had merely to satisfy himself as to whether the person concerned, whose name had been recommended for the appointment to the post of the Principal possessed the necessary qualifications, experience and administrative ability as laid down in the relevant regulations. For that purpose the character roll of the petitioner No. 1 might have been relevant document but the report of the District Inspector of Schools, which was submitted to the Regional Director with regard to some complaints said to have been received by him was not the relevant document for this purpose. The provisions of sub-section (2) of Section 16-F are mandatory and if any enquiry was at all necessary to be made with regard to the character roll, qualifications, administrative ability and other relevant matters of the petitioner No. 1 they should have been completed within a period of two weeks from the receipt of the relevant papers. The provisions of sub-section (2) of Section 16-F are mandatory and if any enquiry was at all necessary to be made with regard to the character roll, qualifications, administrative ability and other relevant matters of the petitioner No. 1 they should have been completed within a period of two weeks from the receipt of the relevant papers. The limitation of two weeks prescribed by Section 16-F (2) is mandatory and no equitable considerations will be available to extend this period of limitation. If the Regional Deputy Director of Education fails to take a decision with regard to the recommendation of the selection committee within the period of two weeks of the receipt of all the relevant papers the consequence would follow, namely, that the approval shall be deemed to have been accorded. This deeming clause operates on the expiry of two weeks from receipt of all the relevant papers. The learned counsel for the appellant conceded that no relevant paper was asked for or received by the Regional Deputy Director of Education from the Chairman of the Selection Committee or from the Manager of the institution within a period of two weeks prior to August 11, 1970 when the Regional Deputy Director passed the impugned order. Hence in any view of the matter deeming clause became operative with effect from June 10, 1970 when the character roll of the petitioner was sent by the Manager of the institution and received by the Regional Deputy Director of Education. In this view of the matter the learned Single Judge was correct in quashing the order of the Regional Deputy Director as also the order of the Director of Education. It was next urged that the appellant was more qualified than the petitioner No. 1 for being appointed to the post of the Principal of the institution and the Selection Committee fell in error in not recommending his name at No. 1 in the panel. We are unable to accept this contention as well. The Selection Committee admittedly selected the petitioner No. 1 for the post of the principal and made the recommendation accordingly. For the subjective satisfaction of the Selection Committee the objective test in a court of law cannot be substituted. It is not the function of the court to embark upon the re-assessment of the qualitative value of each candidate and substitute its choice. For the subjective satisfaction of the Selection Committee the objective test in a court of law cannot be substituted. It is not the function of the court to embark upon the re-assessment of the qualitative value of each candidate and substitute its choice. The assessment made by the Selection Committee is not, in our view, amendable to judicial review, save on the ground of mala fide against the members of the Selection Committee. There is nothing on the record to substantiate that any number of the Selection Committee was actuated by malice against the present appellant. The recommendation of the Selection Committee cannot, therefore, be said to suffer from the vice of malice. This contention is, therefore, unsustainable. Lastly it was urged that the Selection Committee, which made the recommendation, was not properly or validly constituted. The respondents 1 and 2 have refuted this allegation. The learned Single Judge has repelled this contention. The contention of the appellant, in short, was that Managing Committee, which appointed the Selection Committee, was itself not properly constituted and did not possess the requisite authority to appoint the Selection Committee. This contention obviously raises a question which is a mixed question of fact and law. This disputed question of fact involved with regard to this submission cannot in our view be decided merely on the basis of affidavit evidence. The petitioner had not made this averment in the petition. Perhaps, they could not do so. The opposite party No. 5, who is the appellant before us, was impleaded at a later stage in the petition. He had not challenged the order of the Regional Deputy Director by a writ petition nor did he challenge the appointment of the Selection Committee at the appropriate stage. In fact, he appeared before the Selection Committee in question for interview, and took his chance for being recommended for appointment to the post of principal. Having failed to achieve the object he has now come forward with the allegation that the Selection Committee before whom he had appeared was not validly constituted. In our view it is not open to him to raise this issue in the writ petition which has given rise to this appeal. Having failed to achieve the object he has now come forward with the allegation that the Selection Committee before whom he had appeared was not validly constituted. In our view it is not open to him to raise this issue in the writ petition which has given rise to this appeal. The submission raises complex questions of fact which might require oral evidence to be taken and which could be more properly raised and determined in a suit or any ether appropriate proceeding when the appointment was made on the basis of the recommendation made by the Selection Committee. We were informed by the learned counsel for the respondents Nos. 1 and 2 that after the decision made in the writ petition the respondent No. 1 was appointed as Principal of the institution on the basis of the recommendation made by the Selection Committee the approval of which was deemed to have been made in terms of Section 16-F (2) of the Act. In view of this supervening circumstances we do not think it proper to enter into the question whether the Selection Committee was validly constituted. There is no merit in this appeal. It must, therefore, fail. We, however, would like to make it clear that the direction made by the learned Single Judge to the effect that the petitioner No. 1 shall be deemed to have been approved for permanent appointment to the post of principal of King George Intermediate College, Utraula, as being the first preference candidate recommended by the Selection Committee has reference to the deeming consequence occurring under sub-section (2) of Section 16-F of the Act inasmuch as the Regional Deputy Director of Education failed to accord his approval or disapproval within two weeks from June 10, 1970. This direction by the learned Single Judge was a necessary consequence of the quashing of the two impugned orders dated August 11, 1970, and March 20, 1971. With these observations we dismiss this appeal with costs. .