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Allahabad High Court · body

2019 DIGILAW 2831 (ALL)

Anita Singh v. State Of U. P.

2019-12-19

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : 1. Short question that arises for consideration in the facts of the present case is as to who would be eligible to officiate as Principal of the Institution concerned i.e. the petitioner or respondent No.5? 2. Jalaun Balika Inter college, Jalaun is a recognized institution under the provisions of U.P. Intermediate Education Act, 1921 and the provisions of Payment of Salaries Act, 1971 are also applicable upon the institution. The post of Principal fell vacant in the institution on 30.06.2009. An issue arose as to who would be entitled to officiate as principal and by the order impugned dated 16.05.2013, contained in Annexure No.9 to the writ petition, the District Inspector of Schools, Jalaun has accepted the candidature of respondent No.5 to officiate as principal, while denying petitioner's candidature primarily on the ground that on the date of accrual of vacancy, she was not eligible. 3. Qualification for appointment to the post of officiate principal is the same which is contemplated for a regular principal. Such qualification stands statutory prescribed in Appendix A to the Act of 1921 and is reproduced hereinafter :- “APPENDIX- A (In reference to Regulation 1 of Chapter II) Minimum qualifications for Appointment of Head Master and Teachers in Private Recognised Higher Secondary Schools 1. Degree and diploma in the concerned subject of any University established or regulated by or under any Central Act, Provincial Act or State Act which is considered to be a University under Section 3 of the University Grants Commission Act, 1956, or of any such institution specially empowered by any Act of Parliament shall be recognised for the purpose of minimum qualifications prescribed under it. 2. Under it in reference to prescribed qualifications the word "trained" means post graduate training qualification such as L.T., B.T., B. Ed. S.C. or M. Ed. of any University or institution as specified in the earlier para or any equivalent (Degree or Diploma). It also includes departmental A.T.C. and C.T. with minimum teaching experience of 5 years'. J.T.C./B.T.C. Grade teacher shall also be considered to be. C.T. if he has worked in C.T. Grade at least for 5 years' Sl. No. Name of the Post & Educational Training Experience Age Desirable qualifications 1 2 3 4 Head of institution (1) trained M.A. or M.Sc. or M.Com or M.Sc. J.T.C./B.T.C. Grade teacher shall also be considered to be. C.T. if he has worked in C.T. Grade at least for 5 years' Sl. No. Name of the Post & Educational Training Experience Age Desirable qualifications 1 2 3 4 Head of institution (1) trained M.A. or M.Sc. or M.Com or M.Sc. (Agri) or any equivalent Post-graduate or any other degree which is awarded by corporate body specified in above-mentioned para one and should have at least teaching experience of four years in classes 9-12 in any training institute or in any institution or university specified in above-mentioned para one or in any degree college affiliated to such University or institution, recognized by Board or any institution affiliated from Boards of other States or such other institutions whose examinations recognised by the Board, or should the condition is also that he/she should not be below 30 years' of age. or (2) First or second class post-graduate degree along with teaching experience of ten years in Intermediate classes of any recognized institutions or third class post-graduate degree with teaching experience of fifteen years, or (3) Trained post-graduate diploma-holder in science. The condition is that he has passed this diploma course in first or second class and have efficiently worked for 15 or 20 years respectively after passing such diploma course. Minimum 30 years Notes: (1) Assistant teachers having at least second class postgraduate degree and specified teaching experience of ten years in Intermediate classes of a recognised institution may be exempted from training qualifications, (as per the provisions contained in the Act.) (2) Teaching experience includes teaching prior to or after teaching or both. (3) Higher classes means classes from 9 to 12 and experience of teaching these classes is admissible for the post of Head Master of Intermediate college." 4. The two contestants to the office are the petitioner and respondent No.5. Petitioner is a post graduate in Economics from the University of Allahabad. The post graduation has been completed by the petitioner on 30.05.2002. She has also acquired training qualification i.e. B.Ed. for which a certificate has been issued to her on 15.12.2010. It is not in issue that petitioner was appointed as lecturer in Economics in the institution concerned on 02.07.2003, after having being selected by the U.P. Secondary Education Service Selection Board. She has also acquired training qualification i.e. B.Ed. for which a certificate has been issued to her on 15.12.2010. It is not in issue that petitioner was appointed as lecturer in Economics in the institution concerned on 02.07.2003, after having being selected by the U.P. Secondary Education Service Selection Board. It is also not in dispute that she has been continuously working as a lecturer in the institution from 2003 on wards. 5. As against it, the 5th respondent is a post graduate in Sanskrit and has also obtained a certificate in Physical Education as also a Diploma in Physical Education. She appears to have been sanctioned lecturer's grade vide an order dated 23.06.2008, on the ground that she has completed 10 years teaching in Intermediate section. This benefit has been granted to her relying upon a Government Order dated 25.10.2000. 6. The District Inspector of Schools has examined the candidature of both the persons and has found that petitioner was not eligible to officiate as principal on the date of accrual of vacancy i.e. 30.06.2009. It has also been observed that respondent No.5 possess the requisite qualification for appointment to the post of principal, as she was placed in lecturer’s grade in the year 2008 itself. 7. Before adverting to the rival claim of the two teachers, it would be worth noticing that a Full Bench of this Court in Special Appeal No. 1247 of 2013 (Amal Kishore Singh Vs. State of U.P. and others) had an occasion to examine the question whether a persons possessing Bachelor degree in physical education is qualified to be appointed as Principal in an recognised intermediate school. The matter was referred to larger Bench in light of a conflict opinion in two previous judgments of this Court. The Full Bench examined the relevant provisions of U.P. Secondary Education Service Selection Board Act, 1982 as also the Statutory Regulations framed by the NCTE and the question was ultimately answered in following terms by the Full Bench in para 47 and 48, which are reproduced hereinafter:- “47. We, thus, answer question (i) in affirmative and question (iii) by holding that Vindhyachal Yadav does not lay down the correct law. However, question (ii) has to be answered, subject to certain riders. A B.P.Ed. We, thus, answer question (i) in affirmative and question (iii) by holding that Vindhyachal Yadav does not lay down the correct law. However, question (ii) has to be answered, subject to certain riders. A B.P.Ed. degree being a post graduate training qualification, would entitle a person to hold post of Headmaster of a recognised High School but not that of Principal of an Intermediate college. The reason is that under Regulations, 2001 as well as under Minimum Qualification Regulations, 2014 framed by NCTE, B.P.Ed. is recognised as eligibility qualification for teaching Classes IX -X (Secondary/High School) but not for Classes XI -XII (Senior Secondary/Intermediate). For teaching Intermediate classes, the person should possess M.P.Ed. degree of at least two years duration from any National Council for Teacher Education recognised institution. These regulations do not prescribe any separate qualification for Head of institution and thus the qualification prescribed for a teacher of Intermediate classes (Senior-Secondary) would also apply to Head of such an institution. We have already held above that the qualifications prescribed by NCTE would be binding on the State, therefore, the qualifications prescribed by Minimum Qualification Regulations, 2014 have to be read alongwith Appendix-A and thus, a teacher possessing B.P.Ed. degree, would not be eligible to hold post of Principal of an Intermediate College. 48. We, thus, reply to question (ii) by holding that a teacher in physical education having B.P.Ed. degree is eligible to be appointed as Headmaster of a High School, but not as Principal of an Intermediate college.” 8. B.P.Ed. qualification has, therefore, not been found to be a valid training qualification of appointment to the post of Principal in an intermediate institution. The training qualification possessed by respondent No.5 is not a bachelor qualification in physical education but she possess an inferior qualification of diploma in physical education. In view of the authoritative pronouncement of law by the Full Bench in Amal Kishore Singh (Supra) a person who possess diploma in physical education cannot be treated as a trained person for the purposes of appointment to the post of principal in a recognized intermediate institution. 9. It is also not in issue that petitioner did not posses requisite qualification for appointment to the post of principal on the date of accrual of vacancy i.e. 30.06.2009. The training qualification has been obtained by the petitioner only later in December, 2010. 9. It is also not in issue that petitioner did not posses requisite qualification for appointment to the post of principal on the date of accrual of vacancy i.e. 30.06.2009. The training qualification has been obtained by the petitioner only later in December, 2010. She was otherwise having the qualification of 4 year teaching in classes 9 to 12 having been appointed a lecturer in Economics in 2003. After the training qualification has been obtained by the petitioner she, therefore, becomes eligible for officiating on the post of principal. 10. On the date of accrual of vacancy i.e. 30.06.2009 the petitioner was not eligible to officiate on the post of principal. It was in that context that a decision had to be taken by the Managing Committee to hand over charge to someone of the office of principal as the office could not have been left vacant. The appointment of respondent No.5, therefore, may be justified on the touchstone of doctrine of necessity but such continuance can be justified only so long as an eligible person is not available to function as the principal. This Court in Smt. Hemlata Rajput Vs. State of U.P. and others 2019 (9) ADJ 93 ; had an occasion to examine the issue in somewhat similar circumstances where none of the teacher was found eligible for appointment to the post of principal when such office fell vacant. The principal of doctrine of necessity in such an even has been pressed into service by this Court. It has, however, been observed that such necessity would continue only as long as a qualified and eligible teacher is not available to be appointed as officiating principal. Paragraph 18 to 21 of the judgment in Smt. Hemlata Rajput (supra) is extracted hereinafter:- 18. On the date of occurrence of vacancy on the post of Principal in the Institution concerned neither the petitioner nor the respondent possessed eligibility in terms of Appendix-A. In the absence of availability of eligible teacher who could be appointed as Principal in the Institution it would become inevitable for the Institution to appoint someone as the Officiating Principal even though such incumbent may not possess requisite eligibility. Doctrine of necessity would therefore be attracted to deal with such a scenario. 19. The doctrine of necessity has been examined by this Court in Committee of Management, S.G.M. Inter College, Khairgarh, District Firozabad (supra). Doctrine of necessity would therefore be attracted to deal with such a scenario. 19. The doctrine of necessity has been examined by this Court in Committee of Management, S.G.M. Inter College, Khairgarh, District Firozabad (supra). Para 20 of the judgment examines the doctrine and is reproduced hereinafter:- "20. Doctrine of necessity has been subject matter of consideration in the case of Election Commission of India and another Vs. Dr. Subramaniam Swamy and another (1996) 4 SCC 104 wherein view has been taken that law permits certain things to be done as a matter of necessity, if the choice is between allowing a biased person is applied to act or to stifle the action altogether the choice must fall in favour of the dormer as it is the only way to promote decision making. Apex Court in the case of State of U.P. Vs. S.S.L. Srivastava 2006 (3) SCC 276 , has taken the view that where doctrine of necessity is applicable compliance with principle of natural justice would be excluded. Apex Court in the case of Lalit Kumar Modi Vs. BCCI 2011 (10) SCC 106 , took the view that doctrine of necessity is common law doctrine and is applied to tide over the situation when there are difficulties as law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over. Said judgment have been given pressing the doctrine of necessity as an exception to the rule against the doctrine of bias. Said doctrine of necessity in Principle can also be pressed into service to tide over the situation, where statutory provisions are being breached, i.e. where choice is to be made between an eligible and ineligible person, and a solution has to be found out rather than allowing the illegality to perpetuate." 20. Continuance of respondent as the Principal on officiating basis even without possessing essential eligibility would have to be endorsed by applying the doctrine of necessity. During first stage the petitioner had otherwise conveyed her reluctance to officiate as Principal of the Institution. The respondent in such circumstances if has worked as Officiating Principal then no exception can be taken to it and she would be entitled to payment of salary for the post of Principal in the first stage of controversy. 21. During first stage the petitioner had otherwise conveyed her reluctance to officiate as Principal of the Institution. The respondent in such circumstances if has worked as Officiating Principal then no exception can be taken to it and she would be entitled to payment of salary for the post of Principal in the first stage of controversy. 21. The doctrine of necessity, however, would no longer be available once an eligible teacher is available to officiate as the Principal in the Institution. Petitioner admittedly was appointed as Lecturer after she was selected by the Board on 4.7.2003. The qualification required for appointment to the post of Principal would include ten years teaching experience on the post of Lecturer. This experience of ten years is acquired by the petitioner on 4.7.2013. The records further reveal that the Committee of Management of the Institution concerned has also taken a decision on 24.8.2013 to appoint the petitioner as the Principal of the Institution. The doctrine of necessity, therefore, cannot extend beyond 24.8.2013, inasmuch as the competent authority i.e. the Committee of Management had acted in accordance with Section 18 of the Act of 1982 in appointing the senior most eligible teacher as Officiating Principal.” 11. Applying the principle laid down in the case of Smt. Hemlata Rajput (supra), this court finds that the District Inspector of Schools, Jalaun was not justified in rejecting candidature of petitioner to officiate as principal of the institution concerned merely for the reason that on the date of accrual of vacancy the petitioner was not eligible to be appointed as principal. Respondent No.5 since has been to found not to be possessing requisite qualification to be appointed as officiating principal in light of the Full Bench Judgmet of this Court in the case of Amal Kishore Singh (supra), she has no right to continue as principal any further. The order impugned dated 16.05.2013, therefore, cannot be sustained and is set aside. 12. The District Inspector of Schools is directed to pass a fresh order in light of the observation made above, for the senior most eligible person to be allowed to officiate as principal of the institution so long as a regularly recruited Principal is not made available by the Commission. As the petitioner is not disputed to be the senior most lecturer in the institution, she would have the right to officiate as such. As the petitioner is not disputed to be the senior most lecturer in the institution, she would have the right to officiate as such. A seniority list has been annexed by the Committee of Management along with its counter affidavit in which the name of petitioner is not shown at Serial 1. It is, however, pointed out that all persons senior to her have already retired. The respondent No.5, who is shown to be senior to petitioner cannot be considered for appointment in view of the ratio laid down by Full Bench in the case of Amal Kishore Singh (supra). Although learned counsel for the Managing Committee states that work and conduct of the petitioner is not up to the mark but it is not disputed that no disciplinary action has ever been instituted or is pending against her. 13. It is further worth noticing that in respect of petitioner’s working as lecturer for the last more than 15 years there has never been any disciplinary action and she is yet to officiate as principal. The opposition to petitioner's claim on account of none satisfactory work, therefore, cannot be accepted. In such circumstances petitioner's claim will not be overlooked merely for the reason that her work and performance is not satisfactory. 14. However, as law with regard to right of a teacher who possess training qualification in physical education was not clear and the issue has been resolved only in October, 2018 by the Larger Bench in Amal Kishore Singh (supra) and the 5th respondent has otherwise worked as officiating principal, the salary already paid to her for the post of officiating principal shall not be recovered from her. The petitioner would be entitled to salary for the post of officiating principal in accordance with the provisions of Section 18(2) of the U.P. Secondary Education Service Selection Board Act, 1982.