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Madhya Pradesh High Court · body

2008 DIGILAW 1182 (MP)

KALYAN SINGH v. STATE OF M P

2008-09-24

RAJENDRA MENON

body2008
Judgment ( 1. ) CHALLENGING the orders passed by the Sub-Divisional officer, the Collector and the Commissioner in proceedings initiated by the petitioner in the matter of awarding marks for experience for having worked in a School pertaining to appointment of Samvida Shala Shikshak, petitioner has filed this petition. ( 2. ) PETITIONER claims to be a holder of B. Com and M. Com Degree and after passing the B. Ed Examination it is stated that he was working as a Upper Division Teacher in SBBP Naveen Vidya Bhawan Higher Secondary School, Barman, district Narsinghpur (hereinafter referred to as school ). It is stated that the school is receiving 100% grant from the State Government and is an aided institute within the meaning of Madhya Pradesh Panchayat Samvida Shala Shikshak (Appointment and Conditions of Service) Rules, 2001 (hereinafter referred to as rules of 2001 ). When the Janpad Panchayat, Sagar issued an advertisement for various Janpad Panchayats, including Janpad Panchayat Deori, for appointments on the post of Samvida Shala Shikshak Class I, II and III, petitioner submitted his candidature for appointment to the said post. On the basis of marks obtained by the petitioner in the qualifying examination and the experience for working in the School, his claim was considered and following marks were awarded to him, for the qualifying examination, petitioner was awarded 38. 55 marks; for the five years experience of working in the School, 20 marks were awarded; and, for the B. Ed Degree obtained, 10 marks were awarded. Accordingly, petitioner received 68. 55 marks and was placed at Serial no. 1 in the select list. However, the aforesaid selection was challenged by one raghuveer Prasad Dubey in Writ Petition No. 3517/2003, on the ground that until and unless requisite amendments are made in the recruitment rule, awarding marks on the basis of a Circular issued by the School Education Department on 14. 3. 2002 is not permissible. ( 3. ) IT was the case of the petitioner Shri Raghuveer Prasad Dubey in the said petition that without amending the Rules of 2001, awarding of marks as per the circular is unsustainable. Initially an interim order was passed in the said writ petition, but subsequently after the amendments were made in the recruitment rules, the petition was disposed of as having been rendered infructuous. ( 4. Initially an interim order was passed in the said writ petition, but subsequently after the amendments were made in the recruitment rules, the petition was disposed of as having been rendered infructuous. ( 4. ) AFTER the Rules were amended and particularly Rule 5 (8) was incorporated with regard to grant of marks, the selection process was undertaken afresh and in this process 20 marks earlier awarded to the petitioner for the 5 years experience was not granted. It was denied to the petitioner on the ground that he is not entitled to the aforesaid marks, because he has not worked in a post for which payment is made from the Government treasury. Holding that marks for working in a Government aided institute can only be granted to such of the teachers, who are paid salary through treasury and in the light of the directives issued by the collector, District Sagar in the Circular Annexure P/4, dated 25. 8. 2003, 20 marks which was initially granted to the petitioner for experience was deleted, as a result petitioners name came below in the merit list and he was not appointed. Challenging the aforesaid order refusing appointment to the petitioner, petitioner preferred appeals and revisions before the Sub Divisional Officer, Additional collector and Commissioner, and on rejection of the same, he has filed this petition. The order passed by the Sub Divisional Officer is Annexure P/1 dated 16. 12. 2003; order passed in appeal by the Collector is Annexure P/2 dated 23. 6. 2004; order passed by the Commissioner is Annexure P/3 dated 10. 11. 2005; and, the Circular issued by the Collector, Sagar on 25. 8. 2003, Annexure P/4, fixing the criteria and the method of awarding marks is also challenged in this petition. ( 5. ) MS. Malti Dadariya, learned counsel for the petitioner, emphasized that the rules in question were amended from time to time and by virtue of the amendments incorporated on 30. 7. 2003, Rule 5 (8) and Explanation thereto reads as under: "5. 8 (b) For the teaching experience in a school, maximum 20 marks shall be awarded. For experience of one year, two years, three years, four years and five years respectively 04, 08, 12, 16 and 20 shall be awarded. Explanation: Educational experience means teaching experience in Government Schools, Government aided schools, education Guarantee Scheme Centres and Non-formal education centres. 8 (b) For the teaching experience in a school, maximum 20 marks shall be awarded. For experience of one year, two years, three years, four years and five years respectively 04, 08, 12, 16 and 20 shall be awarded. Explanation: Educational experience means teaching experience in Government Schools, Government aided schools, education Guarantee Scheme Centres and Non-formal education centres. Experience for previous teaching includes teaching in schools which receive grant from the Government and Non-Formal education Centre, the experience marks shall be awarded on the basis of the certificates issued by the District Education Officer/block Education Officer for the Government School/government aided School and Non-formal Education Centre and for the Education Guarantee Scheme Centres Certificates issued by district Co-ordinator of Rajiv Gandhi Education Mission. " Emphasizing that the Explanation appended to the aforesaid Rule is very clear, experience means experience gained by working in a government aided school, it is argued by learned counsel that the Circular (Annexure P/4) dated 25. 8. 2003 issued by the Collector is contrary to the legislative intent and is unsustainable. That apart, it is pointed out by the learned counsel that in the additional return filed by the respondents an additional ground is now taken for the first time to the effect that the certificate of experience is not issued by the. District Education Officer, it is only issued by the Principal of the Institute and, therefore, not a valid certificate. Ms. Malti Dadariya, learned counsel, submits that once the District Education Officer (for short deo) has counter-signed the certificate of experience issued by the Principal, it tantamounts to issuance of certificate by the District Education Officer and on the grounds raised in the additional return, it is emphasized by her that claim of the petitioner cannot be rejected. ( 6. ) SHRI Shailesh Mishra, learned Government Advocate, refutes the aforesaid and submits that the experience for working in a government aided institute necessarily implies working in a post for which grant is made by the State Government and in the present case the Principal of the School by his communication (Annexure R/1-B) dated 18. 12. ( 6. ) SHRI Shailesh Mishra, learned Government Advocate, refutes the aforesaid and submits that the experience for working in a government aided institute necessarily implies working in a post for which grant is made by the State Government and in the present case the Principal of the School by his communication (Annexure R/1-B) dated 18. 12. 2003 has clearly informed the authorities that petitioners name is not included in the list of staff, who are paid from the grant received from the State Government, that being so, Shri Shailesh mishra argues that experience gained in such a manner in a school even though receiving grant-in-aid, but to a teacher, who is. not paid salary from the grant received from the State Government, but is paid from the funds of the society is not entitled to be counted in accordance to the requirement of Rule 5 (8) (b) and explanation thereof. Accordingly, contending that the experience gained by the petitioner for the work in a post which is not aided by the State Government, cannot be counted, respondents refute the aforesaid. ( 7. ) IT is also argued by Shri Shailesh Mishra, learned Government Advocate, that the requirement of the Explanation to the Rule is that the certificate of experience should be issued by the District Education Officer or the. Block education Officer and in the present case as the certificate is issued by the Principal of the Institute concerned, it is not a certificate in accordance to the requirement of the Rules and, therefore, on the basis of the said certificate no marks for experience, can be granted to the petitioner, ( 8. ) I have heard learned counsel for the parties and perused the record. The moot question requiring consideration in this petition is as to whether experience gained by the petitioner by working in the institute in question can be counted for grant of marks in accordance to the provisions of Rule 5, sub-rule 8 (b) and the explanation thereof. A perusal of the Rule in question indicates that for teaching experience in a school, maximum 20 marks are awarded. The aforesaid provision is contemplated under Sub-rule 8 (b) of Rule 5. A perusal of the Rule in question indicates that for teaching experience in a school, maximum 20 marks are awarded. The aforesaid provision is contemplated under Sub-rule 8 (b) of Rule 5. Explanation to the aforesaid Rule as reproduced hereinabove, clarifies the meaning of educational experience and according to the aforesaid explanation, the same means teaching experience in a government school, government aided school, an education guarantee scheme centre and a non-formal education centre. From the aforesaid Explanation it is clear that the Rules speak about educational experience gained and teaching in the category of institutes indicated therein. Admittedly, the school in question namely; SBBP Naveen Vidya Bhawan Higher Secondary School, Barman, District narsinghpur, where the petitioner has taught, is a government aided institute. The aforesaid fact is not disputed. ( 9. ) THE Explanation to the Rule speaks about teaching experience in the school and does not contemplate anything with regard to experience in a particular school with reference to a post held in the said school. If the clarification issued by the collector, as Contained in Annexure P/4, is taken note of, it is clarified by the collector that experience for working in a government aided school shall be granted only to such of the teachers whose salary are drawn from the government treasury, meaning thereby that a teacher, who has worked in a grant-in-aid school has to be on a post which is approved by the State Government and for which aid is given by the State, then only the person is entitled to the marks for experience and not otherwise. The import of the objections raised by the respondents and which was emphasized by Shri Shailesh Mishra is also to the aforesaid fact as is evident from the additional return filed by the State. It is stated by the respondents that petitioner has experience of teaching in the school receiving grant-in-aid, but on verification from the Principal, the Principal has informed vide Annexure R/1-B dated 18. 12. 2003 that petitioners name is not included in the list of staff receiving grant-in-aid, on the contrary salary to the petitioner is being paid from the funds of the society. Accordingly, respondents are co-relating the working in a grant-in-aid school to a post for which aid is granted by the State Government. This interpretation of the Rule by the Collector and the respondents seems to be wholly misconceived. Accordingly, respondents are co-relating the working in a grant-in-aid school to a post for which aid is granted by the State Government. This interpretation of the Rule by the Collector and the respondents seems to be wholly misconceived. The legislative intent as is evident from the Explanation indicates that educational experience means teaching experience in the schools indicated therein. The category of schools are government schools, government aided schools, education guarantee scheme centres and non-formal education centres. There is nothing in this Explanation or the Rules to indicate that the experience is further for working in a particular post in the institutes as indicated in the Rule. In the absence of anything to suggest that experience gained in the school indicated in the Rule has to be in relation to a post receiving grant-in-aid, the contention of the respondents cannot be accepted. In fact if the contention of the respondents are accepted and upheld, the same would amount to reading something more into the Rules, which is not contemplated in the Rule itself. When the Rule only speaks about experience gained by working in a school receiving grand-in-aid, the Rule cannot be read to mean that the experience has to be in a particular school that also in a post for which payment is made by the State Government or grant is received. There is nothing in the statutory rule to so suggest. That being so, this Court is of the considered view that the interpretation given by the Collector and indicated by him in the Circular (Annexure P/4) dated 25. 8. 2003 is not borne out from the Rule in question. The Rule as it reads is very simple and crystal clear. It only means experience gained by working in a school receiving grant-in-aid without any further qualification with regard to working in a particular post or a particular nature of post, that being so, the first ground of objection of the respondents and their refusal to award 20 marks to the petitioner is wholly unsustainable. The experience gained by the petitioner by working in the school in question, which is receiving grant-in-aid, has to be counted as the same is contemplated in the Rules in question. ( 10. The experience gained by the petitioner by working in the school in question, which is receiving grant-in-aid, has to be counted as the same is contemplated in the Rules in question. ( 10. ) THE next question which requires consideration is as to whether the certificate (Annexure P/5) issued to the petitioner is sufficient to award the marks for experience or the same has to be denied on the ground that the certificate is not issued by the DEO or the BEO, who are the prescribed authorities as per the statutory rules. ( 11. ) WHEN the facts of the case are evaluated, it is seen that the certificate is issued by the Principal of the School and it is counter-signed by the DEO, narsinghpur. Initially when the certificate was produced and the selection process was held, before it was challenged in Writ Petition No. 3517/2003, on the basis of the same certificate 20 marks were awarded to the petitioner. Thereafter, in the subsequent selection, the marks were denied only because of the clarifications issued by the Collector in the Circular (Annexure P/4) dated 25. 8. 2003. Now, respondents have come out with an additional ground in the return with regard to validity of the certificate issued in the present case. The Rules in question contemplates that marks for experience shall be awarded on the basis of a certificate to be issued by the DEO or the BEO. In the present case, in the additional return filed by the respondents, they themselves have stated that they have clarified the position from the Principal of the School and the Principal has verified that the petitioner has worked in the School and the Certificate is issued by the Principal. But, it is only stated that petitioner has not worked in a post for which grant was made by the Government. Once the certificate is issued by the principal of the Institute and it is counter-signed by the DEO, the aforesaid would be compliance with the requirement of the Rules in question. On the aforesaid ground, marks for experience cannot be denied to the petitioner. ( 12. ) IN the additional return filed by the respondents, it is stated by them that the petitioners certificate was not issued by the DEO, it was issued by the Principal of the Institute and counter-signed by the DEO. On the aforesaid ground, marks for experience cannot be denied to the petitioner. ( 12. ) IN the additional return filed by the respondents, it is stated by them that the petitioners certificate was not issued by the DEO, it was issued by the Principal of the Institute and counter-signed by the DEO. Once the respondents admit counter-signature on the certificate by the DEO, the requirement of the Rule can be held to be complied with in this case. Counter signature by the DEO amounts to verification of the facts mentioned in the certificate and in the absence of any material being adduced to show that the certificate was improperly issued, or the facts stated in the certificate are not true, the aforesaid certificate cannot be rejected on the technical ground raised in this petition, more so, when the DEO has counter signed the same and when initially the certificate was accepted and marks awarded. ( 13. ) ACCORDINGLY, this Court is of the considered view that in refusing to award 20 marks to the petitioner, for the experience gained by him, respondents have committed grave error which requires consideration. ( 14. ) ACCORDINGLY, this petition is allowed. Orders impugned as contained in annexures P/1,p/2,p/3 and P/4 are quashed. It is directed that 20 marks for experience be awarded to the petitioner and after awarding such marks, petitioners name be placed at an appropriate place in the merit list and consequential action be taken for granting appointment to the petitioner in accordance to his merit in the select list. The aforesaid exercise be completed within a period of two months from the date of receipt of certified copy of this order. ( 15. ) PETITION stands allowed and disposed of with the aforesaid, without any order so as to costs. Petition allowed.