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Allahabad High Court · body

2019 DIGILAW 1361 (ALL)

Asif Ali v. State of U. P.

2019-05-17

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : ASHWANI KUMAR MISHRA, J. 1. Khalil Higher Secondary School, Bareilly is a recognized intermediate institution under the provisions of U.P. Intermediate Education Act, 1921 and the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971 are also applicable upon it. The institution is a minority institution. The State Government has already determined sanctioned strength of teaching and non-teaching staff in the institution concerned vide order dated 22.2.2013, which is at page 56 of the writ petition. This order would go to show that thirteen posts of L.T. Grade teacher are sanctioned in the institution. 2. On 29.5.2012 the institution advertised three posts of L.T. Grade teacher and one post of primary teacher in 'Amar Ujala'. The subject for which appointment was to be made included the subject of Social Science. The Committee of Management proceeded to make appointment against all advertised vacancies and the petitioner claims to have been selected on the post of L.T. Grade teacher in Social Science. Papers thereafter were submitted to the District Inspector of Schools, Bareill for grant of approval. The Inspector on 22.7.2013 approved the appointment made on three out of four advertised posts but petitioner's claim was kept pending. Since no decision was taken with regard to grant of approval to petitioner's appointment, he approached this Court by filing Writ Petition No.66613 of 2013 which came to be disposed of with following directions on 16.12.2013:- "Accordingly this petition is disposed of with a direction to the respondent no.4, District Inspector of Schools, Bareilly to take an appropriate decision, strictly in accordance with law, on the pending papers relating to selection of the petitioners within a period of four weeks from the date of production of certified copy of this order." 3. It appears that direction of this Court was not complied with and consequently a contempt petition was filed. The Inspector on 24.2.2014 proceeded to pass an order rejecting the claim of petitioner on the ground that there already existed a teacher who could teach Social Science in the institution, and therefore, there was no requirement of appointing a teacher in Social Science stream. The Inspector on 24.2.2014 proceeded to pass an order rejecting the claim of petitioner on the ground that there already existed a teacher who could teach Social Science in the institution, and therefore, there was no requirement of appointing a teacher in Social Science stream. The order of Inspector was assailed by the petitioner by filing Writ Petition No.25080 of 2014, which was disposed of on 19.5.2014 vide following orders passed:- "I have considered the submissions of the learned Counsel for the petitioner and Sri R. P. Singh, learned Counsel appearing for the respondent No.3 and learned Standing Counsel for the respondent Nos.1 and 2. Sri R. P. Singh, learned Counsel appearing for the respondent No.3 submitted that the petitioner does not have qualification in as much as under the Appendix-A to the Intermediate Education Act at serial No.55, the requirement of qualification for being appointed as Assistant teacher to teach Social Science is that in B.A. the candidate must possess at least two qualifications out of the History, Political Science, Geography and Economics. It is submitted that petitioner has only one of the subject i.e. political science and therefore, he is not qualified to be appointed. Learned Counsel for the petitioner however submits that before the interview on 4.12.12 result of history subject was already declared and therefore,he was qualified to be appointed. Learned Standing Counsel on the other hand upon written instruction submits that in the institution, the ratio of teacher is much higher than students and therefore, no fresh appointments can be made. Considering the teacher and taught ratio and considering the averments made by the learned counsel for the parties. I am of the view that this aspect of the matter can suitably be looked into by the Director Secondary Education before whom the petitioner may make a representation and the same shall be considered and decided in accordance with law within a period of three months from the date a certified copy of this order is produced before it. While considering the claim of the petitioner, the Director shall also consider the claim of the Committee of Management and pass appropriate order thereon. With the aforesaid direction/ observation, the writ petition is disposed of." 4. The Director in compliance of the order passed by this Court proceeded to reject claim of the petitioner vide his order dated 13.11.2015. While considering the claim of the petitioner, the Director shall also consider the claim of the Committee of Management and pass appropriate order thereon. With the aforesaid direction/ observation, the writ petition is disposed of." 4. The Director in compliance of the order passed by this Court proceeded to reject claim of the petitioner vide his order dated 13.11.2015. This order records that petitioner did not fulfill eligibility required for appointment to the post in question on the last date of making of application, and therefore, he could not have been appointed. Petitioner thereafter appeared to have made a representation placing correct facts before the authority concerned with a request to revisit the issue relating to grant of approval to petitioner's appointment. The Director consequently has proceeded to pass a fresh order on 14.12.2015. This order specifically accepts petitioner's claim that he possesses requisite eligibility in terms of the qualification prescribed in Appendix-A but the approval was denied on the ground that a teacher in Social Science was not required in the institution concerned. The orders passed by the Director are consequently assailed in this petition. 5. Sri G. K. Singh, learned Senior Counsel for the petitioner submits that as against thirteen sanctioned post of L. T. Grade teacher in minority institution only eight persons are working including the present petitioner. It is submitted that the requirement of appointing a teacher in Social Science exits and that such aspect otherwise are to be looked into by the Management of the institution concerned. It is also contended that papers submitted to the authorities for grant of approval were since kept pending for more than a month the Committee of Management proceeded to appoint the petitioner and he is working since last nearly six years. Submission is that denial of salary for the reasons contained in the order of the Director is wholly arbitrary. 6. Sri Ajit Kumar Singh, learned Additional Advocate General appearing for the State authorities submits that in terms of the advertisement issued the last date for filing of application form was 29.5.2012. It is stated that result of petitioner in one of the subjects was declared on 6.9.2012, which was after the last date fixed for filing of application i.e. 29.5.2012. Sri Ajit Kumar Singh, learned Additional Advocate General appearing for the State authorities submits that in terms of the advertisement issued the last date for filing of application form was 29.5.2012. It is stated that result of petitioner in one of the subjects was declared on 6.9.2012, which was after the last date fixed for filing of application i.e. 29.5.2012. With reference to such fact learned State Counsel submits that on the last date of submitting application the petitioner did not possess requisite qualification for appointment to the post in question. On behalf of the State reliance is placed upon judgment of the Apex Court in U.P. Public Service Commission U.P. Allahabad and another vs. Alpana, (1994) SCC(L&S) 742 and a Division Bench judgment of this Court in Special Appeal No.733 of 2010 (Km. Anjman Upadhyay vs. State of U.P. and others) delivered on 21.2.2018. Reliance is also placed upon judgment of the Apex Court in Bhupinderpal Singh and others vs. State of Punjab and others, (2000) 5 SCC 262 and a recent judgment of the Apex Court in Civil Appeal No.235-236 of 2019, decided on 22.1.2019. These judgments have been pressed on behalf of the State to submit that eligibility for appointment has to be examined with reference to the last date fixed for submitting application and if a person is not qualified on that day then his candidature cannot be considered. It is urged that petitioner has passed 'History' in B.A. Third year course as an additional paper on 6.9.2012, and therefore, petitioner was ineligible to be considered for appointment. 7. I have heard Sri G. K. Singh, learned Senior Counsel assisted by Sri M. A. Ausaf, for the petitioner and Sri Ajit Kumar Singh, learned Additional Advocate General, assisted by Sri Sudhanshu Srivastava for the State authorities and have perused the materials brought on record. 8. While entertaining the writ petition following orders were passed in the matter on 23.12.2015:- "1. The petitioner has been appointed as an Assistant Teacher (Social Science) in a minority institution which is under the grant-in-aid of the State. It is contended on behalf of the petitioner that by way of impugned order the Director of Education (Secondary) has declined to approve his appointment on the ground that strength of students does not justify the appointment of petitioner. 2. It is contended on behalf of the petitioner that by way of impugned order the Director of Education (Secondary) has declined to approve his appointment on the ground that strength of students does not justify the appointment of petitioner. 2. It is further urged that previously the Director had declined approval to the appointment of the petitioner on two grounds - (1) The petitioner does not possess minimum qualification and (2) Strength of students is below. However, by the impugned order the Director has found that the petitioner does possess the essential qualification, but the strength of the students has decreased, therefore, there is no justification to appoint him. 3. Learned counsel for petitioner submits that as the institution is a minority institution, the authorities have a limited power in the matter of approval in terms of Section 16 FF which clearly provides that approval will not be declined or withheld except on the ground that teacher does not have essential qualification. 4. I have heard the learned counsel for petitioner and learned standing counsel. The Director has found that the petitioner has essential qualification, therefore, in view of Section 16 FF, in my view, he should have given approval to petitioner's appointment. 5. The learned standing counsel is granted six weeks' time to file counter affidavit. Rejoinder affidavit, if any, a week thereafter. List thereafter on 09th of March, 2016. 6. In the meantime, it is provided that the petitioner shall be paid his current salary. However, his appointment shall abide the result of writ petition." 9. It is stated that despite specific interim protection granted the authorities till date have not paid entire salary due to the petitioner in terms of the aforesaid order. A contempt petition is stated to be pending. 10. So far as legal proposition urged on behalf of the respondents that the candidate must possess requisite qualification for appointment on the last date of making of application is concerned, the proposition is too well settled to be questioned. Learned counsel for the petitioner also does not dispute this proposition. This Court, therefore, is not required to refer to the judgments which have been cited on behalf of the State, inasmuch as the proposition on facts would not arise in that regard. 11. Learned counsel for the petitioner also does not dispute this proposition. This Court, therefore, is not required to refer to the judgments which have been cited on behalf of the State, inasmuch as the proposition on facts would not arise in that regard. 11. The only question which falls for determination in this petition is as to whether petitioner possessed requisite qualification for appointment to the post of L.T. Grade teacher in Social Science on the last date of making of application for appointment itself? 12. The qualification for appointment to the post of L.T. Grade teacher in Social Science has been prescribed in Appendix-A, which reads as under:- 55- Lkekftd foKku] gkbZLdwy ¼d{kk 9] 10½ ds fy, fuEufyf[kr fdUgha izf'kf{kr nks fo"k;ksa ds lkFk ch0,0 1- bfrgkl 2- jktuhfr 'kkL= 3- Hkwxksy 4- vFkZ'kkL= The aforesaid provision would go to show that the candidate for being appointed to the post of L.T. Grade teacher in Social Science must pass graduation with two subjects out of four specified at item 55 of in Appendix-A. The four optional subjects are History, Political Science, Geography and Economics. Petitioner admittedly has passed graduation. He has brought on record his mark sheets of three years. The petitioner has passed B.A. Part I in the year 2004 with Political Science and History being two subjects out of total four subjects cleared by him. In the second year also petitioner had Political Science and History as two subjects out of total four subjects in the graduation IInd year course. In the B.A. Part III a candidate has to study only two subjects instead of four and the two subjects of petitioner consisted of Political Science and Sociology. History as a subject therefore was not a part of the curriculum in B.A. third year examination. The graduation degree was obtained by the petitioner in the year 2006. It appears that he opted for additional subject in B.A. Part III course in the year 2012 of History and passed his examination in September, 2012. It is this qualification which has been highlighted by the respondents to submit that only when petitioner passed History as one of the subjects in the third year that he became eligible for appointment. 13. It is this qualification which has been highlighted by the respondents to submit that only when petitioner passed History as one of the subjects in the third year that he became eligible for appointment. 13. The question as to whether two out of four subjects specified in Appendix-A have to be studied by the candidate in all three years and the final year examination result has to include the two out of four subjects in all three years has already been examined by this Court in various judgments. The first judgment in that regard is by the learned Single Judge of this Court in Writ Petition No.42251 of 2013 (Smt. Kiran Kumar vs. State of U.P. and others), decided on 5.8.2013. It would be appropriate to reproduce the observation of Court on this aspect of the matter, as also the conclusion drawn by the Court:- "Petitioner's candidature has been sought to be non-suited on account of the fact that she has not at all pursued her graduation course in the subject of Political Science for regular two years and, in view of this, in terms of Appendix A of Chapter II of U.P. Act No. II of 1921 she has to be accepted as ineligible. In order to appreciate the arguments, as have been advanced by the petitioner Appendix A of Chapter II of U.P. Act No. II of 1921 wherein the eligibility criteria of TGT Grade Teacher in Social Science has been provided for as follows; 55- Lkekftd foKku] gkbZLdwy ¼d{kk 9] 10½ ds fy, fuEufyf[kr fdUgha izf'kf{kr nks fo"k;ksa ds lkFk ch0,0 1- bfrgkl 2- jktuhfr 'kkL= 3- Hkwxksy 4- vFkZ'kkL= A bare perusal of the qualification quoted above would go to show that for being appointed as TGT Grade teacher in the subject of Social Science an incumbent is required to have to his/her credit graduation degree with any of the two subjects namely History, Political Science, Geography or Economics. In the present case the factual situation which is so emerging that as far as petitioner is concerned she has pursued her graduation course from the University of Delhi which was a BA (Hons.) History Course and her submission before this Court is that in 1st Year of graduation every student has to read English and Hindi as subsidiary subjects with his/her Hons. subject. subject. In the 2nd Year student must pass two papers of subsidiary subject according to his/her choice or in accordance with the subject provided in the group of Hons. subject and in the 3rd Year every student must pass four papers of Hons. subject and petitioner's submission is that she had passed two papers of Political Science in 2nd Year of BA (Hons.) and, in view of this, petitioner's submission is that she has passed her graduation with the Political Science also as one of the subject and, as such, she should not be treated ineligible. This Court has proceeded to examine the statement of marks, as has been supplied by the University of Delhi, and same clearly reflects that the petitioner at the said point of time when she had pursued her BA (Hons.) course, Political Science has been a subject, as is clearly reflected from the mark-sheet in question at page 65 of the paper book in question, as such, in such a situation and in this background to say that petitioner has not completed her graduation with Political Science as one of the subject, cannot be accepted in the facts of the case, as here petitioner has been pursuing her BA (Hons.) course with History but while pursuing the aforementioned course in History in the curriculum, which has been so provided for, therein two papers of Political Science were also there and, as such, to say that petitioner has not at all passed the aforementioned subject cannot be accepted by this Court. In identical set of circumstances, U.P. Secondary Education Service Selection Board in the matter of selection of Lecturer in Hindi, proceeded to non-suit the candidature of one Shesh Kumari Verma, on the premises that she has done her BA (Hons.) with Hindi, then she cannot be accepted as eligible as she is not BA with Sanskrit. The said candidate filed Civil Misc. Writ Petition No. 66651 of 2012, and this Court found that said candidate has done BA (Hons.) from Delhi University in which main subject of candidate was Hindi, and Sanskrit was one of the subject of BA (Hons.) and, accordingly, she has been found eligible. The U.P. Secondary Education Service Selection Board, preferred Special Appeal No. 613 of 2013, and same has been dismissed. Case in hand is squarely covered on the said principles. The U.P. Secondary Education Service Selection Board, preferred Special Appeal No. 613 of 2013, and same has been dismissed. Case in hand is squarely covered on the said principles. In view of this, writ petition is allowed and U.P. Secondary Education Service Selection Board at Allahabad through its Secretary is directed to reconsider the claim of petitioner, in accordance with law, preferably within next two months from the date of receipt of certified copy of this order." 14. The issue again arose for consideration in Writ Petition No.66651 of 2012 (Shesh Kumari Verma vs. State of U.P. and anther), decided on 10.1.2013, wherein following observations have been made by this Court:- "After respective arguments have been advanced, this Court proceeds to note down the qualification as prescribed for the post of Lecturer in Hindi, in Appendix 'A' of Chapter II of the Regulations framed under U.P. Act No. 2 of 1921, which is as below: Appendix 'A' of Chapter II of U.P. Act No.II of 1921 Hindi Teacher Intermediate for (Class 1112) 1. M.A. in Hindi and B.A. with Sanskrit or Shashtri Examination, Government Sanskrit College, Varanasi now Sampoornanad University, Varanasi 2. Desirable training qualification (G.O. No. Ma/4428/15/72/13) According to Government Notification No. Ma / 4428 /15/72 (13)76 dated 16th March 1979 for teachers appointed prior to 5th April, 1974 for teaching high school classes according to the regulations prevailing at that time, if he possess other educational qualifications then for them B.A. with Sanskrit shall not be necessary for the purpose of their promotion at the post Lecturer in Hindi for Intermediate classes. A bare perusal of the qualification as has been prescribed above, reflects that for being appointed as Lecturer in Hindi, a candidate is to possess Master Degree in Hindi and should be Graduate with Sanskrit subject. The question is as to whether petitioner is B.A. with Sanskrit or not. A bare perusal of the qualification as has been prescribed above, reflects that for being appointed as Lecturer in Hindi, a candidate is to possess Master Degree in Hindi and should be Graduate with Sanskrit subject. The question is as to whether petitioner is B.A. with Sanskrit or not. Petitioner has completed her graduation and he obtained the degree of B.A. Hons in Hindi, and the University of Delhi has provided for following structure of the course for B.A. Hons: I Year II Year Main subject Language Course (Credit) Interdisciplinary Course (Credit) Second Language Course Qualifying (H/L)* (noncredit) Concurrent Discipline Course (Credit) Hindi Interdisciplinary language Literature & Culture (in Hindi) Language (English/Sanskrit/Punjabi) or second interdisciplinary (Reading Gandhi) English/ Sanskrit/ Punjabi Citizenship in a Globalizing World History (Medieval Delhi) A bare perusal of the structure of the course would go to show that main subject is Hindi, but while pursuing the main subject of Hindi various other subjects are provided and Sanskrit is one of them. Statement of marks of the petitioner has been perused and the same clearly reflects that the petitioner has passed B.A. with Sanskrit subject after receiving 48 marks out of 100. In the said direction Controller of the Examination of the University of Delhi has made certification. Once such is the factual situation that B.A. Hons. Hindi Course implicit in itself the paper of Sanskrit also as one of the subjects, then to say that the petitioner is not possessed with the degree of B.A. with Sanskrit cannot be accepted, in the facts of the case. Requirement in the present case is that of Hindi as basic subject and along with the same the incumbent should have knowledge of Sanskrit as well. While pursuing B.A. (Hons) course, the structure of concurrent courses, implicits in itself various other subjects and the degree awarded in B.A. (Hons) in Hindi, whereas in the University of Allahabad, Degree awarded is of 'Bachelor of Arts' with the subjects such as Sanskrit, Hindi and any other subject opted for. Thus, in the facts of the present case, once this is writ apparent that the petitioner has passed her B.A. Hons. in 10 + 2 + 3 scheme in Hindi and the same is with the subject of Sanskrit also, then it has to be accepted that the petitioner is M.A. In Hindi and B.A. with Sanskrit. Thus, in the facts of the present case, once this is writ apparent that the petitioner has passed her B.A. Hons. in 10 + 2 + 3 scheme in Hindi and the same is with the subject of Sanskrit also, then it has to be accepted that the petitioner is M.A. In Hindi and B.A. with Sanskrit. In view of this the opinion which has been formed holding the petitioner to be ineligible, as she has pursued her Sanskrit course in one year, cannot be accepted. The petitioner has to be accepted as eligible. Consequently, writ petition succeeds, and the same is allowed. The order dated 07.11.2012 passed by the U.P. Secondary Education Service Selection Board, Allahabad on the application of the petitioner dated 29.08.2012 is hereby quashed and set aside, and the U.P. Secondary Education Service Selection Board, Allahabad is directed to take further follow-up action by making recommendation in favour of the petitioner as Lecturer in Hindi, within next two months from the date of receipt of a certified copy of this order." 15. It appears that the judgment of this Court in the case of Shesh Kumari Verma (supra) was challenged by the U.P. Secondary Education Service Selection Board before a Division Bench of this Court in Special Appeal Defective No.661 of 2013, which has been dismissed by the following judgment on 9.7.2013:- "We have heard learned Counsel for both sides. Learned Counsel for the respondents has said that he has no objection if the delay of 143 days in filing the appeal is condoned. Accordingly, the delay is condoned. We have heard the matter on merits. Appendix-'A' of Chapter II of U.P . Act No. II of 1921 prescribes the eligibility condition for Lecturer in Hindi as follows: (1) M.A. in Hindi and (2) B.A. with Sanskrit. On a plain and simple reading of the aforesaid, it is clear that while deciding whether a person is or is not eligible it is simply to be examined whether one of the subjects in the course of B.A., done by the candidate, was Sanskrit. In the facts of the present case the candidate has done B.A. (Hons.) course from Delhi University in which main subject of the candidate was Hindi. However, Sanskrit was one of the subjects in the B.A. (Hons.) course completed by the candidate, who is private respondent in this appeal. In the facts of the present case the candidate has done B.A. (Hons.) course from Delhi University in which main subject of the candidate was Hindi. However, Sanskrit was one of the subjects in the B.A. (Hons.) course completed by the candidate, who is private respondent in this appeal. Learned Single Judge has held the candidate to be eligible and overruled the decision of the Board. The question which has to be asked for deciding this case and the eligibility is whether Sanskrit was one of the subject or not in the B.A. course. If Sanskrit was one of the subjects, the candidate was eligible under the aforesaid Appendix-'A' and if Sanskrit was not one of the subjects, the candidate is not eligible unless he has alternative qualification i.e. Shashtri examination. We have no doubt in this case that it can not be said, by any stretch of imagination, that the candidate did not have Sanskrit as one of the subjects in B.A. and, therefore, the learned Single Judge has rightly held that the candidate was eligible. We, accordingly, dismiss the appeal." 16. The consistent view taken by this Court in the aforesaid three cases is that where candidate has had two out of four specified subjects in any year of the three year degree course it would meet the requirement of Appendix-A and that it is not required that two subjects are to be mandatorily taught in all the three years. In the facts of the present case, petitioner has had History and Political Science in graduation first year and second year course. Even if he had not passed History as one of the subjects in the final year examination and his subsequent degree obtained on 6.9.2012 is ignored, yet, petitioner would have to be treated as possessing the requisite qualification for appointment to the post in question. The B.A. qualification was obtained by the petitioner in the year 2006 itself. On facts, therefore, this Court finds that petitioner's qualification as per Appendix-A was in existence from much prior to the last date of filing the application form itself. Respondents, therefore, would not be justified in denying consideration to petitioner's claim only on the ground that he lacked eligibility on the last date of making of application. 17. On facts, therefore, this Court finds that petitioner's qualification as per Appendix-A was in existence from much prior to the last date of filing the application form itself. Respondents, therefore, would not be justified in denying consideration to petitioner's claim only on the ground that he lacked eligibility on the last date of making of application. 17. It would also be worth noticing that the limited scope for examination available to the State authorities in case of appointment of teachers in a minority institution would be as per section 16-FF of the Act of 1921, which reads as under:- "16-FF. Savings as to minority institutions.-(1) Notwithstanding anything in sub-section (4) of Section 16-E, and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management : Provided that one of the members of the Selection Committee shall- (a) in the case of appointment of the Head of an institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director; (b) in the case of appointment of a teacher, be the Head of the Institution concerned. (2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed. (3) No person selected under this section shall be appointed, unless- (a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and (b) in the case of a teacher such proposal has been approved by the Inspector. (4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible. (4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible. (5) Where the Regional Deputy Director of Education or the Inspector, as the case may be, does not approve of a candidate selected under this section the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Deputy Director of Education in the case of teacher. (6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final." 18. The considerations which are made the basis for denying consideration to petitioner's claim is not found to be referable to section 16-FF of the Act of 1921. The order of the Director, therefore, cannot be sustained on this ground also. 19. Before parting, one additional aspect needs to be taken note of. The Director in the facts of the present case has passed two orders which are under challenge. In first order dated 30.11.2015 he has returned a finding that petitioner does not possess requisite qualification. Petitioner, therefore, placed the correct facts and highlighted the course content in his graduation syllabus and submitted that the qualification possessed by him would be sufficient in terms of the requirement specified in Appendix-A. The Director while passing his subsequent order has categorically returned a finding that petitioner does possess requisite eligibility on the last date of making of application. This order dated 14.12.2015 has not been challenged by the State insofar as the finding is returned in favour of petitioner regarding petitioner's qualification. The order is challenged by the petitioner only to the extent claim of petitioner is denied on the ground that a teacher in Social Science was not required. The respondents, therefore, cannot be permitted to take a stand contrary to the orders passed by their own authorities i.e. Director of Secondary Education. A plea not taken in the order otherwise cannot be permitted to be urged in view of the law settled by the Apex Court in Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405 . 20. A plea not taken in the order otherwise cannot be permitted to be urged in view of the law settled by the Apex Court in Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405 . 20. In view of the deliberations and discussions aforesaid, this Court finds that the orders passed by the Director of Education (Secondary) dated 30.11.2015 and 14.12.2015 cannot be sustained and are hereby quashed. Since the Director has already found the petitioner eligible for appointment, which finding has been affirmed by this Court, as such petitioner's claim for grant of financial approval would be considered in accordance with law. The question as to whether there existed requirement of a teacher in Social Science also cannot be taken as a ground to non-suit the petitioner's cause once it is found that requisite number of posts were otherwise available and petitioner is qualified. The requirement of teacher in minority institution would otherwise have to be determined by the institution concerned. The claim of petitioner for grant of financial approval would, therefore, be considered, afresh, in light of the observations made above, within a period of three months from the date of presentation of certified copy of this order. 21. Writ petition, accordingly, stands allowed. No orders are passed as to costs.