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Allahabad High Court · body

2010 DIGILAW 1904 (ALL)

AJAY KUMAR DAS v. STATE OF U. P.

2010-07-02

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—The controversy with regard to the required qualifications being possessed by the present petitioner qua the post of Principal in Rashtriya Intermediate College, Sherpur, Mirzapur which is recognised and aided Intermediate College travelled upto this Court in Civil Misc. Writ Petition No. 67054 of 2009 filed by Shri Bhagwat who is respondent No. 7 in the present writ petition. It may be recorded that the present petitioner was selected for the post of Principal by the U.P. Secondary Education Services Selection Board in response to Advertisement No. 1/2002. 2. Shri Bhagwat, respondent No. 7 contended that the petitioner did not have the requisite teaching experience as required for the post of Principal of Intermediate College under Appendix ‘A’ of Chapter II of the Regulations framed under the Intermediate Education Act as also that provided under the Advertisement No. 1/2002. 3. The teaching experience required under Advertisement No. 1/2002 was subject matter of consideration before the Apex Court in the case of Balbir Kaur and another v. U.P. Secondary Education Services Selection Board, Allahabad and others, 2008 12 SCC 1 , wherein it has been held as follows : “As noted herein before, the “Note to sub-rule (5) of Rule 12 of the 1998 Rules prescribed the requirement of experience for the post, which is different from what is prescribed in the said Appendix A and, therefore, there being a conflict between the two provisions, in the teeth of Section 32, the said “Note” shall have an overriding effect over Appendix A insofar as the question of experience is cornered. In this view of the matter, we are in agreement with the learned Single Judge that the impugned advertisements were in conformity with the said “Note” and, therefore, the selection procedure could not be faulted on that score.” 4. It is in this background that the present petition is to be adjudicated. 5. The writ Court vide judgment dated 9.12.2009 passed in Writ Petition No. 67054 of 2001 permitted Shri Bhagwat to file a representation before the Director of Education (Secondary) U.P. Lucknow and the Director in turn was required to examine as to whether the present petitioner had the requisite teaching experience required for appointment as Principal of a recognized Intermediate College in accordance with law or not. The parties were given opportunity to file their respective documents before the Director of Education (Secondary) U.P. Lucknow. The parties were given opportunity to file their respective documents before the Director of Education (Secondary) U.P. Lucknow. 6. The Director under order dated 7.6.2010 has noted that the petitioner has claimed teaching experience of working as Lecturer since 2.8.1984 to 21.3.2002 i.e. for 18 years in Sanjay Gandhi Mahila Inter College, Gaya, Bihar. This experience does not satisfy the requirements of Appendix ‘A’ of Chapter II or the conditions of advertisement as the institution namely Sanjay Gandhi Mahila Inter College, Gaya, Bihar has run under self-financing. Teaching experience qua working in a self-financed institution cannot be taken into account for the purpose of satisfying the requirements of Appendix-A of Chapter II of the Intermediate Education Act as also the terms and conditions provided under the Advertisement No. 1/2002 as explained in the case of Balbir Kaur (supra) by the Hon’ble Supreme Court. It has further been held that the experience certificate of the present petitioner has not been counter signed by the Manager and the District Inspector of Schools which was mandatory as per the Advertisement No. 1 of 2002. It has also been stated that under the resolution of the Selection Board dated 13.8.2008 only those experience certificates are to be taken into consideration where the teacher has worked in an appropriate institution and has drawn salary from the State Exchequer, whatever Board it may be affiliated to. 7. The Director, therefore, required the Secretary, U.P. Secondary Education Services Selection Board to cancel the petitioner’s selection. 8. Challenging the order so passed by the Director, Shri Ashok Khare, Senior Advocate assisted by Shri R.K. Singh Kaosik contends before this Court as follows: The petitioner has required teaching experience of working in an Institution which was recognised by Magadh University, Bodh Gaya and the State Government of Bihar. It is stated that in the State of Bihar colleges upto Intermediate level are not provided financial assistance by the State Government, therefore, payment of salary through State Exchequer is out of question. The teaching experience certificate produced by the petitioner was duly counter signed by the Registrar of Magadh University, Bodh Gaya, Bihar. 9. With reference to the judgment of the Hon’ble Supreme Court in Contempt Petition (c) No. 372/2002 in C.A. No. 962/1999, Shamim Khanam v. K.B. Pandey and another, it is submitted that teachers working in self-financed institution cannot, as a class, be excluded. 9. With reference to the judgment of the Hon’ble Supreme Court in Contempt Petition (c) No. 372/2002 in C.A. No. 962/1999, Shamim Khanam v. K.B. Pandey and another, it is submitted that teachers working in self-financed institution cannot, as a class, be excluded. Relevant portion of the order of the Supreme Court relied upon by the petitioner is quoted herein below: “Part time teachers would be excluded from consideration. However, it is made clear that there cannot be a class of exclusion of teachers who are working in self-financed institutions. Any exclusion of a candidate on the basis that he or she is a part time teacher must be made only in individual cases after proper verification.” 10. It is, therefore, submitted that teachers like the petitioner working in self-financed institution cannot be excluded en masse. There is no allegation that the petitioner was a part time teacher. It is, therefore, submitted that the petitioner’s teaching experience in a self-financed institution could not have been excluded for the purpose of satisfying the requirement of Appendix-A as also the terms and conditions of the advertisement No. 1/2002. He stated that the institution experience certificate has been counter signed by the Registrar of the said University and, therefore, it would be too technical on part of the respondents to exclude the experience certificate in the facts of the case on the plea that it is countersigned by the District Inspector of Schools/District Basic Shiksha Adhikari, Assistant Commissioner more so when there is no such officer in the State of Bihar. He, therefore, submits that both the grounds mentioned in the order impugned cannot be legally sustained. 11. Faced with the aforesaid contentions, Shri Anil Kumar Sharma, learned counsel for respondent submitted that the Institution in question namely Sanjay Gandhi Mahila Inter College, Gaya, Bihar is not recognised by Magadh University and document of the affiliation of the college filed is a fabricated document. He has placed reliance upon the information supplied by the Mahavidyalaya Nirikshak, Magadh University, Bodh Gaya, Bihar to the Public Information Officer, M.U. Bodh Gaya, Bihar dated 6.5.2010 which records that Sanjay Gandhi Mahila Inter College, Gaya, Bihar was granted recognition by the said University for the academic session 1984-1985 for B.A. Classes, Ist year (excluding any financial assistance). The counter signature of the Registrar as alleged to have been appended on the experience certificate are also disputed. The counter signature of the Registrar as alleged to have been appended on the experience certificate are also disputed. He, therefore, submits that the petitioner has no teaching experience of working in any recognised institution as required under Appendix-A as well as under the terms and conditions of the Advertisement No. 2/2002. He lastly contended that the teaching experience as claimed is based on incorrect facts, as the name of the petitioner does not find mention as a teacher in the relevant records of Sanjay Gandhi Mahila Inter College, Gaya, Bihar during the period 1987-2001. The petitioner had obtained another certificate of working in Gaya College, Gaya, Bihar for the overlapping period. He cannot have teaching experience of two colleges for the same period. 12. Shri Ashok Khare, Senior Advocate then contended that the facts which are being stated today before this Court were not so stated before the Director of Education. The order of the Director has to be judged for the reasons recorded in the order and not on pleas not raised before him. 13. He also disputes the correctness of the factual averments made by the counsel for the respondents before this Court today. 14. I have heard learned counsel for the parties and have gone through the records. 15. It is no doubt true that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. (Ref. Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 Para 8). If so examined, this Court finds that in view of the judgment of the Apex Court in the case of Shamim Khanam (supra) there cannot be en-masse exclusion of teachers who have teaching experience from self financial institution and the matter in that regard has to be adjudicated by the Director afresh. 16. At the same time this Court is conscious of the fact that appointment of teachers in institutions where education is imparted upto Classes XII, is the backbone of the democracy of this country. 17. Education is imparted to the students so as to prepare them for life. 16. At the same time this Court is conscious of the fact that appointment of teachers in institutions where education is imparted upto Classes XII, is the backbone of the democracy of this country. 17. Education is imparted to the students so as to prepare them for life. Preparing for life has two components (a) the student may become self dependent to earn his livelihood (b) he achieves knowledge of values of life to become a good human being. A teacher of an institution where education so imparted has to lead by example. Values are lived and not talked about. I am of the opinion that a teacher of Intermediate College must first stand the test of satisfying the values of life before being admitted to the employment of imparting education to minor students. Therefore, irrespective of necessities of law, if there are allegations that the teacher concerned does not have requisite teaching experience or documents filed by him, do not satisfy the requirement of statutory provisions or have been ill-gotten then this Court shall not feel shy of an enquiry being held in the matter at whatever stage the facts are brought to its knowledge. Principles of service jurisprudence must be moulded in a manner to adjust with the requirements needed of a person to be appointed or working in institution where education is imparted to children, in order to save the democracy of this country. 18. This Court is of the firm opinion that the issue as to whether the petitioner had been working in an institution which had due recognition from Magadh University, Bodh Gaya, Bihar at the relevant time for Intermediate Examination must be finally examined inasmuch as on the aforesaid issue depend the satisfaction of the essential qualifications prescribed under Appendix ‘A’ Chapter II as also those conditions in the Advertisement No. 1/2002. The genuineness of the experience certificate filed by the petitioner must be also examined and settled once for all, after due enquiry. 19. The genuineness of the experience certificate filed by the petitioner must be also examined and settled once for all, after due enquiry. 19. Since the impugned order of the Director recommends to the Secretary, U.P. Secondary Education Service Selection Board to cancel the selection of the petitioner it would be appropriate to direct as follows: Respondent No. 7 may file a representation supported by such documents which according to him establish that Sanjay Gandhi Mahila Inter College, Gaya, Bihar was not recognised for Intermediate Examination by the Magadh University, Bodh Gaya and that the teaching experience certificate filed by the petitioner does not bear true and genuine signatures of the Registrar of the University, within two weeks alongwith certified copy of this order before the Chairman of U.P. Secondary Education Services Selection Board. The petitioner will have two weeks to file reply to the representation so filed and for the purpose he may obtain the same from Selection Board. 20. The Chairman shall forward a request letter to the Vice Chancellor of the Magadh University, Bodh Gaya to verify the status of Sanjay Gandhi Mahila Inter College, Gaya, Bihar and its association with the University between 1984-2002 so far as Intermediate classes are concerned as well as to clarify as to whether signatures appended to the experience certificate filed by the petitioner alongwith the application before the Board in response to Advertisement No. 1/2002 are genuine or not. (If the original application is not available, he may forward a copy of the document which has been enclosed as Annexure-8 to the present writ petition for its verification to the University.) The report of the University will be made available to the petitioner as well as to the respondent No. 7. They will have an opportunity to submit their reply to the same. The Chairman shall thereafter take his own decision in the matter by means of speaking order. The aforesaid exercise will be completed within ten weeks from today. The Chairman shall take all consequential action immediately thereafter. The order of the Director shall abide by the order to be passed by the Chairman as indicated above. 21. Writ petition is disposed of subject to the observation made. ————