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Uttarakhand High Court · body

2016 DIGILAW 327 (UTT)

Deepa Gupta v. State of Uttarakhand

2016-07-12

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. These two writ petitions raise common issues and relate to the selection to the post of Principal in the respondent School. Hence, we dispose of the same by this common judgment. 2. Petitioner in Writ Petition (S/B) No. 344 of 2014 applied pursuant to the notification for appointment as Principal. Instead of selecting her, the sixth respondent has been selected. The complaint of the petitioner is that she was given 105.10 marks by the department. Thereafter, she attended an interview. Therein, she obtained 10.60 marks. Accordingly, she got 115.70 marks. There are two complaints lodged by her. Firstly, she would contend that she was denied 6.4 marks for the High School by the department in tabulating the marks. The sixth respondent obtained total of 99 marks in terms of the tabulation by the department. In the interview, he was awarded 17.60 marks. He, therefore, obtained 116.60 marks. The second contention of the petitioner is that she had five years of administrative experience. For each year of administrative experience, she is entitled to 3 marks and, therefore, she should have obtained 15 marks; instead, she was given only 12 marks. If 3 more marks are added to 115.70, she would end up getting 118.70 marks, which is more than the marks obtained by the sixth respondent. 3. The stand of the respondents, on the other hand, is that, as far as the High School marks are concerned, the petitioner did not produce attested copy of the certificate showing the marks and, therefore, the marks were denied to her. As regards the administrative experience, it is admitted that only 12 marks were given. This is for the reason that, going by the certificate annexed by the petitioner, she had an administrative experience of only 4 years and 5 months. Therefore, she was entitled only to 12 marks, which were given to her. 4. As far as Writ Petition (S/B) No. 147 of 2014 is concerned, petitioner therein was awarded 99.96 marks by the department in the tabulation. The principal complaint of the petitioner is that she had administrative experience, which entitled her to 12 marks more. In this regard, noticing that she was not awarded 12 marks for administrative experience, she lodged a complaint. The complaint was referred to the Additional Director. The Additional Director has passed orders dated 04.03.2014, which are impugned. 5. The principal complaint of the petitioner is that she had administrative experience, which entitled her to 12 marks more. In this regard, noticing that she was not awarded 12 marks for administrative experience, she lodged a complaint. The complaint was referred to the Additional Director. The Additional Director has passed orders dated 04.03.2014, which are impugned. 5. The stand of the department, as raised through Mr. B.D. Kandpal, learned Deputy Advocate General for the State, is that the administrative experience was claimed in respect of a Junior High School (Junior High School is explained as standard 6 to 8). According to the 2009 Regulations, such experience does not count, runs the argument. 6. As far as Writ Petition (S/B) No. 147 of 2014 is concerned, though, in the impugned order, actually what is mentioned is that the certificate produced is forged, there is different case which is set up in the counter affidavit. The undeniable fact, however, is that, even taking the marks of the petitioner as 111.96 by adding 12 marks more, she would obtain less than the marks obtained by the party respondent, which are 116.60. The petitioner did not attend the interview. The petitioner, actually, filed the writ petition on 19.05.2014. No doubt, the order of this Court is that the appointment of respondent No. 5 will be subject to the decision of the writ petition. The interview took place on 24.11.2014. The fact remains that the petitioner did not attend the interview. 7. The further matter, not in dispute, is that the common party respondent, who was selected, has resigned the job. In the list prepared, petitioner in Writ Petition (S/B) No. 344 of 2014 figures at Serial No. 2. But since the appointment has already been made and this is not a case, where the candidates did not turn up, it may not be appropriate to direct the consideration of the case of the petitioner in Writ Petition (S/B) No. 344 of 2014, though she is at Serial No. 2. Therefore, the case must be considered on merits. Case of the petitioner in Writ Petition (S/B) No. 344 of 2014: 8. Therefore, the case must be considered on merits. Case of the petitioner in Writ Petition (S/B) No. 344 of 2014: 8. As far as the case of the petitioner in this writ petition is concerned, as already noticed, the case is rested on the plea that marks were not awarded for the High School and also marks were not awarded for the entire length of administrative experience she had. Taking up the case relating to non-awarding of marks for High School, the definite stand of the respondents is that she did not produce the attested copy of the certificate for the High School. In an attempt to wriggle out of this situation, the learned counsel for the petitioner drew our attention to the supplementary affidavit and pointed out that, actually, she had produced the attested copy of the application form, wherein the marks obtained by her in the High School are also indicated. It is further contended that, if she had not produced the High School certificate, her application should have been rejected, which was not done and that means, by inference, that the petitioner has produced the attested mark list. In other words, her case is that attested mark list was produced. It is also stated that, at the bottom of the application form, it is mentioned that enclosed is the photocopy of the mark list. It is also a plea that it is videographed and, if that is produced, the truth will come out. 9. We are not impressed by the contentions of Mr. Anurag Bisaria, learned counsel for the petitioner. It is only on production of the requisite document that candidates are vouchsafed marks as provided. The reliance placed on the application form, in which the marks obtained in the High School are undoubtedly entered, is without any basis. Equally without any basis is the statement at the bottom of the application form that the mark list is produced. It is to be noticed that the marks related to proficiency at various levels and not at the level of High School. So, we cannot conjecture and decide the case on the basis of reference to mark list, which is made at the bottom of the application form. It is to be noticed that the marks related to proficiency at various levels and not at the level of High School. So, we cannot conjecture and decide the case on the basis of reference to mark list, which is made at the bottom of the application form. As far as attested copy of the application form is concerned, it remains a claim and, unless and until the requisite mark list was produced, it is not open to the petitioner to assert that she is entitled to the marks, which she would have got had she produced the attested copy of the mark list for the High School. Therefore, we reject the said contention. We cannot also possibly conduct a roving inquiry on the video taping to show that the petitioner has produced the attested copy of the High School mark list. 10. Coming to the administrative experience, we would think that the averment in the counter affidavit is clear that the certificate produced by the petitioner would show that the petitioner had experience for the period from July, 1995 till December, 1999. Going by that, she has experience of only 4 years and 5 months. She was, accordingly, given marks for 4 years. Therefore, we cannot find fault with the department for not awarding 15 marks and awarding only 12 marks. If this be the position, the petitioner has not made out a case for quashing the appointment of the party respondent. Case of the petitioner in Writ Petition (S/B) No. 147 of 2014: 11. The case of the petitioner in this writ petition is that she was entitled to 12 marks more for the experience she had in Junior High School. The stand taken in the counter affidavit is as follows: “9. That the contents of paragraph no. 4 & 5 of the writ petition as stated are wrong, hence denied. It is admitted that the four years experience of Head Mistress in Dayawati Modi Kanya Junior High School, Bhojpur, Gajiyabad was not accepted for the post of Principal as the petitioner herself in para no. 5 of the writ petition stated that under the provisions of 2009 Rules the following administrative and education experience for the post of Principal are required: i. 3 years administrative experience of any recognized Inter College or the Higher Classes. ii. 5 years administrative experience of recognized High School. iii. 5 of the writ petition stated that under the provisions of 2009 Rules the following administrative and education experience for the post of Principal are required: i. 3 years administrative experience of any recognized Inter College or the Higher Classes. ii. 5 years administrative experience of recognized High School. iii. 5 years teaching experience of Intermediate Classes or Higher Classes or the recognized teachers training institution. iv. 8 years teaching experience of High School Classes. v. 3 years administrative experience of recognized High School with 2 years teaching experience. From the perusal of facts as stated above it is clearly established that the experience of Head Master in Junior High School is not valid for the post of Principal, Inter College, therefore, the Chief Education Officer, District Haridwar has rightly discarded the administrative experience of petitioner. It is wrong to say that as per the regulation the petitioner was entitled to grant 12 marks in respect of administrative experience. 10. That the contents of paragraph no. 7 of the writ petition as stated are wrong, hence denied. In reply to this para it is submitted that as per the schedule (Gha) the experience of Head Master in the Junior High School is treated as administrative experience, but the same is valid for the post of Principal High School.” 12. In fact, there is a case that though notice was given for hearing, petitioner did not appear. The case of the petitioner, on the other hand, is based on the part of the Regulations made under the Act, the translated version of which is as follows: “(3) For the purpose of Administrative experience for the post of Head of the Institution, the below mentioned experience would be considered: (A) Where the applicant has worked as Head Master of any recognized Junior High School or Principal of Intermediate college. (B) Where the applicant had been Gazetted Officer in Education Department.” 13. In the impugned orders, what is stated is that the certificate, which is produced, is forged. Petitioner challenges the illegality of the said finding. According to her, the appointment was approved and it is not forged. 14. Apart from the pleadings, we notice another aspect. As per the Advertisement, the experience obtained in a Junior High School does not count under the head ‘administrative experience’. Petitioner challenges the illegality of the said finding. According to her, the appointment was approved and it is not forged. 14. Apart from the pleadings, we notice another aspect. As per the Advertisement, the experience obtained in a Junior High School does not count under the head ‘administrative experience’. The learned counsel for the petitioner would point out that this is contrary to the terms of the Regulations; but the petitioner has not challenged the Advertisement. In the order passed by the authority, which is impugned, there is no reference to the application of the petitioner actually being not maintainable on that basis. It proceeds on a different footing that the certificate is forged. Moreover, while it is true that, in this case, there is an order that selection will be subject to the result of the writ petition and if one is to go by the portion of the Regulations, which the petitioner has relied on, there may be substance in the case of the petitioner that experience at Junior High School level will count, the terms of the Advertisement speak otherwise. In terms of the Advertisement, experience at the Junior High School level will not count. Petitioner has, admittedly, not participated in the interview. What we intend to do is to direct that a fresh selection be made in view of the resignation of the party respondent after joining. 15. In such circumstances, in respect of the petitioner in Writ Petition (S/B) No. 147 of 2014, when a fresh selection is made, depending on the terms of the Advertisement, if she is advised to challenge the impugned orders in this case, we leave it open to her to challenge the impugned orders. 16. Writ Petition (S/B) No. 344 of 2014 being merit-less, as already noticed, will stand dismissed. Writ Petition (S/B) No. 147 of 2014 will stand disposed of, as aforesaid, by directing that, when a fresh selection is made for the post of Principal of the College, which is actually an Intermediate College, it will be open to the petitioner to seek appropriate remedies, if needed, against the impugned orders, if advised at that stage.