Kiran
Gupta & Ors Vs. State of U.P. & Ors [2000] INSC 501 (28 September 2000)
Syed
Shah Mohammed Quadri & Shivaraj V. patil SYED SHAH MOHAMMED QUADRI, J.
L.I.T.J
Leave to file appeal is granted in all the Petitions for Special Leave.
The
common judgment and order of a Division Bench of the High Court of Judicature
at Allahabad in a batch of writ petitions and
special appeals delivered on October 6, 1998
is under challenge. The unsuccessful writ petitioners are the appellants in
these appeals. The controversy in the writ petitions as also in these appeals
relates to the selection and appointment of Principals/Headmasters of various recognised
private aided intermediate colleges and secondary schools in Uttar Pradesh and
other allied matters.
The
conclusions reached by the Division Bench of the High Court, in the impugned
judgment, may be summarised as follows :
(1)
the constitutional validity of Sections 9,10 and 11 of the U.P. Secondary
Education Services Commission and Selection Boards Act, 1982 (for short, `U.P.
Act No.5 of 1982') as amended by U.P. Act No.15 of 1995 and also Rule 12 of the
U.P. Secondary Education Services Commission (Amendment) Rules, 1995 (for
short, `the 1995 Rules'), was upheld; (2) the selection of candidates by the
U.P.
Secondary
Education Services Commission (for short, `the Commission') and the
notifications issued on August 3, 1996 and August 30, 1996 were found to be
valid; (3) the panel of selected candidates prepared on April 15, 1997 was held
not vitiated by the notification issued by the Government of U.P. on April 17,
1997 and it was directed that the same should be implemented by the educational
authorities in accordance with law; and (4) it was left open to the Director of
Education, and if so ordered by him, to the Deputy Director of Education to
inquire into the requisite qualifications of the selected candidates; if it is
found that the requisite qualifications for the post of Principal/Headmaster
were not possessed by any of the selected candidates, the Director of
Education/Deputy Director of Education shall, after giving him reasonable
opportunity of being heard, determine the question and thereafter refer it to
the Board which was directed to reconsider his selection after giving due
opportunity to the candidate and for that limited purpose the matter should be
deemed to be pending before the Board under the provisions of sub-section (6)
of Section 3 of the U.P. Intermediate Education Act, 1921 (for short, `the Act')
as amended by the U.P. Act No.25 of 1998. The factual matrix in which the
aforementioned conclusions are recorded by the High Court needs to be noticed
here. For educational purposes, the State of U.P. was divided into 13 regions which had 1504 vacancies of
teachers, Principals/Headmasters, as on December 13, 1995 when an advertisement was issued
inviting applications from the eligible persons to appoint suitable candidates.
It appears that about one lakh applicants responded. After short-listing them
under the 1995 Rules, 7,500 candidates were called for interviews and selection
for the posts of Principals/Headmasters of 13 regions, including the Meerut region, was completed. This batch,
we are told, relates to selection of Principals/Headmasters in Meerut region. There were 258 posts in
that region and out of them interviews were held for 253 posts. The selection
of Principals/Headmasters in Meerut region,
based on oral interview and the panel of selected candidates of April 15, 1997, were challenged by the
unsuccessful candidates by filing writ petitions in the High Court. The
validity of the provisions of Sections 9 and 10 of U.P.Act No.5 of 1982 and
Rule 12 of the 1995 Rules was also questioned. The senior teachers working as
ad hoc Principals/Headmasters, who were not selected, sought their regularisation
under the provisions of U.P.Act No.5 of 1982. The contesting respondents
supported the legality of the impugned provisions and defended both the
procedure adopted and the panel of the selected candidates prepared by the
Commission.
The
claim for regularisation, it was pleaded, was unfounded.
On
these pleas, the High Court recorded the aforementioned findings and thus
disposed of all the cases by the impugned order which gave rise to these
appeals. Mr.P.K.Goswami, the learned senior counsel appearing for the
appellants in Civil Appeal Nos. of 2000 [@ S.L.P. (C) Nos.19035-38/98],
advanced the following contentions : (i) By Sections 9 & 10 of U.P.Act No.5
of 1982, the essential legislative functions of laying down guidelines have
been assigned to the Commission and that inasmuch as Rule 12 of the 1995 Rules
prescribes selection of suitable candidates by oral interview without laying
down any criteria, the said provisions are illegal and unconstitutional and are
liable to be struck down; and (ii) even assuming that the impugned provisions
of U.P.Act No.5 of 1982 and Rule 12(3) are valid, the process of selection by
interview alone confers arbitrary power on the Commission; he elaborated this
submission by placing reliance on various decisions of this Court and asserted
that in cases when 15 per cent of the total marks were prescribed for
interview, it was held to be arbitrary so the selection solely on the basis of
viva voce was a fortiori illegal. These and other contentions, which will be
referred to presently, urged by Mr.Goswami were adopted by Mr.P.N.Misra,
learned senior counsel, Mr.Pramod Dayal, Mr.B.M.Sharma, Mr.P.K.Jain, Mr.Shrish
Kumar Mishra, learned counsel appearing for the appellants in the other appeals.
Mr.Shanti Bhushan, learned senior counsel appearing for the respondents -
selected candidates, has contended that there is no delegation of essential
legislative functions by the Legislature under Sections 9 and 10 of U.P. Act
No.5 of 1982; that preparation of guidelines in regard to method of recruitment
by the Commission which consists of experts, the most competent body, is a
matter of giving effect to the legislative policy. He argued that under Rule
12(3) of the 1995 Rules, (i) the Government rightly prescribed selection by
interview for appointment of the in- service teachers, at the fag end for their
service career, to the posts of Principals/Headmasters, and (ii) the selection
was entrusted to an expert body, well-informed on the subject and whose opinion
in regard to selection of the candidates, in the absence allegation of mala
fide, would be proper and legal and that a written test in such cases would be
the most inappropriate method. The scheme for selection of the candidates,
submitted the learned counsel, required awarding quality points for academic
qualifications, training, administrative experience, etc. and it was on the
basis of the marks secured by them, that they were short-listed and called for
interview for judging their personality keeping in view the seven factors
specified in the guidelines by the Commission, thus, there was nothing
arbitrary or illegal in the selection process. Mr.Subodh Markandeya, learned
senior counsel for the State of U.P.,
supported the judgment of the High Court in regard to validity of the impugned
provisions.
To
appreciate these contentions, it will be necessary to refer to the relevant
enactments from the maze of legislation dealing with matters relating to
education and appointment of Teachers, Principals/Headmasters, in Uttar
Pradesh. The first enactment to be noticed is the U.P.Intermediate Education
Act, 1921 (for short `the Act').
A
Board is established under the Act to regulate and supervise the system of
education, including appointment of teachers at the high school and
intermediate level in U.P.
The
Act conferred power on the Board to frame Regulations for purposes of the Act.
Regulation 10(dd) of the Regulations, framed by the Board, prescribed the
procedure for filling up the vacancies of teachers and of the Heads of
Institutions/schools by direct recruitment in any aided recognised
institution/school. Sections 16-E and 16-F of the Act were substituted to bring
about a change in the mode of appointment of teachers by the management of
private educational aided institutions (for short, `the management') and to
provide for appointment of teaching staff after selection by a Committee
comprising of representatives of the management and experts nominated by
authorities of the education department. Later, the power of the management to
appoint teaching staff was restricted only for a period not exceeding `six
months'. Series of Orders called `U.P.Secondary Education (Removal of
Difficulties) Orders' were issued. We concern ourselves with the Second Order
of 1976 by which the words `not extending beyond June 30, 1976' were
substituted for `six months' and the Fifth Order of 1976 issued on November 27,
1976 which brought about two important changes : (i) it regularised all
temporary appointments made by the management on or before June 30, 1975; and
(ii) it extended the period, earlier fixed for ad hoc appointments under
various orders, till December 31, 1976 or till regular appointments, whichever
is earlier.
Section
16-GG was inserted in the Act by U.P. Act 5 of 1977 with effect from April 21, 1977. The said provision deals with the regularisation
of appointment of ad hoc teachers made between August 18, 1975 and September
30, 1976. By a
subsequent Order, the period was again extended till May 20, 1977 or till regular selection,
whichever is earlier. In 1982, U.P.Secondary Education Services Commission and
Selection Boards Act, 1982 (U.P. Act No.5 of 1982) was enacted, which mandated
the management to appoint teaching staff only on recommendation by the Commission.
The State Government was given the power to make rules under Section 35 of U.P.Act
No.5 of 1982. On May 8,
1995, the Government
made the 1995 Rules. Rule 12 of the said Rules prescribes procedure for
appointment of teaching staff by direct recruitment. Sections 9 and 10 of U.P.Act
No.5 of 1982, which are impugned, read as under : "9. Powers and duties of
Commission. - The Commission shall have the following powers and duties, namely
- (a) to prepare guidelines on matters relating to the method of recruitment
and promotion of such categories of teachers as are specified in the Schedule;
(b) to
(j) *** *** ***
10.
Procedure of selection of teachers specified in the Schedule - (1) For the
purposes of making appointment of a teacher specified in the Schedule, the
management shall notify the vacancy to the Commission in such manner and
through such officer or authority as may be prescribed.
(2)
The procedure of selection of candidates for appointment to the posts of such
teachers shall be such as may be prescribed :
Provided
that the Commission shall, with a view to inviting talented persons, give wide
publicity in the State to the vacancies notified under sub-section (1)." A
perusal of Section 9 shows that it enumerates the powers and duties of the
Commission which include preparation of guidelines on matters relating to the
method of recruitment and promotion of teachers. It is the validity of clause
(a) of Section 9 that is impugned on the ground of delegation of essential
legislative functions. In our view, the contention is wholly misconceived. It
is too late in the day to question the delegation of legislative functions to
the Government or a subordinate authority.
However,
what cannot be delegated is essential legislative functions. It will be useful to
reproduce here the observations of Mukherjea,J. In re The Delhi Laws Act,
1912, the Ajmer-Merwara
(Extension of Laws) Act, 1947 vs.
The
Part C States (Laws) Act, 1950 [1951 SCR 747 at 982] :
"If
the legislature hands over its essential legislative powers to an outside
authority, that would, in my opinion amount to a virtual abdication of its
powers and such an act would be in excess of the limits of permissible
delegation.
The
essential legislative function consists in the determination or choosing of the
legislative policy and of formally enacting that policy into a binding rule of
conduct. It is open to the legislature to formulate the policy as broadly and
with as little or as much details as it thinks proper and it may delegate the
rest of the legislative work to a subordinate authority who will work out the
details within the framework of that policy.'' The essence of the essential
legislative function lies in the legislature formulating a policy in respect of
a matter within its field of legislation and translating it into words of an
enactment to clothe it with binding authority. The legislative policy, as could
be gathered from the aforementioned provisions, appears to us to constitute a
Commission which is a statutory body consisting of experts and leave the
question as to how it should proceed with the method of recruitment and
promotion of Teachers to the posts of Principals/Headmasters to that
Commission. A plain reading of that clause shows that the legislature has
delegated the power of preparation of guidelines on matters relating to the
method of recruitment to the Commission which is in the sphere of effectuation
of the legislative policy rather than in realm of laying down a legislative
policy. The composition of the Commission under Section 4 of U.P.Act No.5 of
1982 is as follows : "4.
Composition
of the Commission. - (1) The Commission shall consist of a Chairman and not
less than six and not more than eight other members to be appointed by the
State Government.
(2) Of
the members - (a) One shall be a person who occupies or has occupied, in the
opinion of the State Government, a position of eminence in Judicial Services;
(b)
Two shall be persons who occupy or have occupied, in the opinion of such
Government, a position of eminence in the State Education Services; and (c)
Others shall have teaching experiences as - (i) Professor of any University
established by law in Uttar Pradesh; or (ii) Principal of any college recognised
by or affiliated to any such University for a period of not less than ten
years; or (iii) Principal of any institution recognised under the Intermediate
Education Act, 1921 for a period of not less than fifteen years.
(3)
Every appointment under this section shall take effect from the date on which
it is notified by the State Government." A bare reading of Section 4 makes
it evident that the Commission was composed of members of whom one member was
having a position of eminence in judicial services and the other members were
experts in the field of education.
Inasmuch
as the Commission was an expert body and it was entrusted with the duty of
selection of Teachers, Principals/Headmasters, it would be the most competent
body to lay down guidelines on matters relating to method of recruitment and
promotion of teachers to the posts of Principals/ Headmasters. Indeed laying
down of guidelines by the Commission in such matters when it is so authorised
by an Act of legislature or by statutory Rules is a well accepted principle and
no exception can be taken to it.
Orissa
and Ors. [1995 (6) SCC 1]. A perusal of Section 10 shows that it deals with the
procedure for selection of teachers specified in the Schedule to U.P.Act No.5
of 1982.
The
schedule specifies the following as teachers for purposes of Section 10 : (1)
Principal of an Intermediate College; (2) Lecturer of an Intermediate College; (3) Headmaster of a High School;
and (4) Trained Graduates, Grade Teachers of Higher Secondary School. Further,
Section 2(k) of that Act defines `teacher' to include a principal or a
headmaster. Sub-section (1) of Section 10 enjoins the management to notify the
vacancy for making appointment of a teacher specified in the Schedule to the
Commission in such manner as may be prescribed. Sub-section (2) of Section 10
says that the procedure for selection of a candidate for appointment to the
post of a teacher shall be as may be prescribed. The Commission is mandated to
give wide publicity in the State to the vacancies notified under sub-section
(1) to invite talented persons. The Government of U.P. has prescribed in Rule
12 of the 1995 Rules procedure for recruitment of teachers. Nothing has been
pointed out and we also find nothing which would render the provisions of
Section 10 as unconstitutional. Rule 12 (3) of the 1995 Rules, which is the
subject matter of challenge, is extracted hereunder : "12. Procedure of
direct recruitment - (3) The commission shall hold interview of the candidates
and, for each category of post prepare panel of those found most suitable for
appointment in order of merit as disclosed by the marks obtained by them in the
interview.
The
panel, for the post of Principal or Headmaster shall be prepared institution
wise after giving due regard to the preference given by a candidate, if any,
for appointment in a particular institution whereas for the posts in the
lecturers and trained graduates (L.T.) grade, it shall be prepared subjectwise
and groupwise respectively. If two or more candidates obtain equal marks in
interview, the name of the candidate who has higher quality points shall be
placed higher in the panel and if the marks obtained in the interview as well
as the quality points of two or more candidates are equal, the name of the
candidate who is older in age shall be placed higher. In the panel for the post
of Principal or Headmaster, the number of names shall be three times of the
number of the vacancy and for the post of teachers in the lecturers and trained
graduates (L.T.) grade, it shall be larger (but not larger than twenty five per
cent) than the number of vacancies.
Explanation.-
For the purposes of this sub- rule the word groupwise means in accordance with
the groups specified in the Explanation to sub-rule (2) of Rule 11." Rule
12 deals with the procedure for direct recruitment of Teachers,
Principals/Headmasters and Lecturers. The procedure for selection of the
Principals and Headmasters is as follows : Sub-rule (1) requires the Commission
to advertise the vacancies, inter alia, for the post of Principal of an
Intermediate College or the Headmaster of a High School duly specifying the
name and place of the institution/school and inviting application from the
candidates who are required to give their choice in respect of three
institutions/schools in the order of preference for which they desire to be
considered. Sub-rule (2), insofar as it relates to selection of
Principals/Headmasters, directs that the Commission should scrutinise the
applications and prepare the list having due regard to the representation of
the candidates belonging to Scheduled Castes, Scheduled Tribes and other
Backward Classes. The Commission is required to call for interview five
candidates for each vacancy on the basis of the quality points secured by them.
Sub-rule (3), quoted above, directs that the Commission shall hold interviews
of the candidates for each category of posts and prepare a panel of those found
suitable for appointment in order of merit as disclosed by the marks obtained
by them in the interview. The panel for the posts of Principals/Headmasters has
to be prepared institutionwise keeping in view the preference given by the
candidates, if any, or in respect of a particular institution/school. The panel
should contain the names of the candidates three times of the number of
vacancies. The vice in sub-rule (3), it is argued, is, it mandates selection of
candidates only by interview. What is complained of is that there is no
provision for comparison of educational qualification, administrative
experience, service record and character roll without which selection solely on
the basis of interview will be arbitrary. It may be noted that the scheme for
selection of the candidates, under consideration, is in two stages. The first
stage is evaluation at the time of screening, as envisaged in Appendix D of the
1995 Rules, which provides for awarding of quality points under six items. For
academic qualification marks are awarded, under items 1 to 4, based on the
percentage of marks secured in (1) High School; (2) Intermediate; (3) Graduate
degree; and (4) Post-graduate degree in accordance with formulae noted therein.
Item No.5 deals with awarding of marks for training depending upon whether the
candidate secured the first or the second or the third division in theory and
practical. And at item No.6 provision is made for awarding marks for
administrative experience; 2 marks are given for each year of experience,
subject to a maximum of 15 marks. Thus, it is noticed that at the stage of
awarding quality points academic qualification, training and administrative
experience of candidates are taken into consideration. The candidates are
called for interview on the basis of the `quality points' secured by them. Regarding
non- consideration of service record and character roll by the Commission, no
allegation was made in the writ petitions. However, Mr.T.N.Singh, the learned
counsel for the Commission, on instructions, submitted that service records of
senior teachers were before the Commission at the time of interview. Now we
shall advert to the cases cited at the Bar. In Shri Janki Ors [1973 (1) SCC
420], the challenge was against selection for the posts of Headmasters made by
the Selection Committee on the basis of interview. A Constitution Bench of this
Court while approving the method of selection by interview, held that when
appointment to higher posts were made it might be perfectly legitimate to test
the candidate at a properly conducted interview. It was observed that the
efficiency of a teacher and his qualification to be appointed as a Headmaster
depended upon several considerations - his character, his teaching experience,
ability to manage his class, his popularity with the students and the high
percentage of successful students he was able to produce; and that all those
matters must be necessarily taken into consideration before making a selection.
It is difficult to accept the omnibus contention that selection on the basis of
viva voce only is arbitrary and illegal and that since allocation of 15% marks
for interview was held to be arbitrary by this Court, selections solely based
on interview is a fortiori illegal. It will be useful to bear in mind that
there is no rule of thumb with regard to allotment of percentage of marks for
interview.
It
depends on several factors and the question of permissible percentage of marks
for an interview test has to be decided on the facts of each case. However, the
decisions of this Court with regard to reasonableness of percentage of marks
allotted for interview in cases of admission to educational
institutions/schools will not afford a proper guidance in determining the
permissible percentage of marks for interview in cases of selection/appointment
to the posts in various services.
Even
in this class, there may be two categories: (i) when the selection is by both a
written test and viva voce; and (ii) by viva voce alone. The courts have
frowned upon prescribing higher percentage of marks for interview when
selection is on the basis of both oral interview and a written test. But, where
oral interview alone has been the criteria for selection/appointment/promotion
to any posts in senior positions the question of higher percentage of marks for
interview does not arise. Therefore, we think it an exercise in futility to
discuss these cases -- Minor A.
Sehravardi
and Ors. [1981 (1) SCC 722] -- relied upon by Mr.Goswami, which deal with
admission to educational institutions/schools and also cases where prescribed
method of recruitment was written test followed by interview - Ashok Kumar Yadav
& Ors. vs. State of Haryana & Ors.
[1985
(4) SCC 417]; D.V.Bakshi & Ors. vs. Union of India of Haryana & Ors. [1994
(4) SCC 165]. However, it will be apt to refer to the decision of a three-Judge
Bench of this (4) SCC 159]. There, the impugned selection for the posts of
District Munsifs under Rajasthan Judicial Service Rules was made by the
Rajasthan Public Service Commission. The ratio of marks allocated for written
test and interview was 75:25. Speaking for the Court, Justice O. Chinnappa
Reddy pointed out: "In the case of admission to a college, for instance,
where the candidate's personality is yet to develop and it is too early to
identify the personal qualities for which greater importance may have to be
attached in later life, greater weight has per force to be given to performance
in the written examination. The importance to be attached to the interview-test
must be minimal. Therefore, the ratio of the decisions in Minor A.
Sehravardi
and Ors. [1981 (1) SCC 722], in this regard, cannot be applied in case of
services to which recruitment has necessarily to be made from persons of mature
personality, interview test may be the only way, subject to basic and essential
academic and professional requirements being satisfied." That case has
been consistently followed in various judgments of this Court. We refer to a
few of them here.
In Dr.
Keshav Ram Pal vs. U.P.Higher Education Services Commission, Allahabad &
Ors. [1986 (1) SCC 671], referring to the view taken by this Court in Periakaruppan
vs. State of T.N. (supra) and Ajay Hasia vs. Khalid Mujib Sehravardi (supra)
that the importance to be attached to the interview test must be minimal, this
Court commented that in the case of services to which recruitment had
necessarily to be made from persons of mature personality, interview test might
be the only way, subject to basic and essential academic and professional
requirements being satisfied and that subjecting such persons to a written
examination might yield unfruitful and negative results, apart from it being an
act of cruelty to those persons. In Anzar Ahmad etc.
appointment
to the posts of Unani Medical Officer the Government prescribed that the Public
Service Commission shall select the candidates on the basis of interview. The
Commission allocated 50% marks for academic qualification and 50% for
interview. This Court, after referring to the aforementioned cases and relying
upon Lila Dhar's case, upheld the method of selection by interview alone. That
decision was followed in A.P. State Financial Corporation case also selection
of candidates by interview without a written test was upheld by this Court. The
posts of Managers in the A.P.Financial Corporation were to be filled by
interview without a written test. The Corporation approved the promotion
criteria by viva voce without a written test and allocated marks under various
heads; among them for interview 25% and for length of service 15% marks were
prescribed. A Division Bench of the High Court while upholding the allocation
of marks under various heads, reduced the percentage of marks for interview
from 25% to 15% and increased percentage of marks for length of service from
15% to 25%. On appeal, this Court held that the High Court fell into patent
error in reaching the conclusion that 25% marks for interview were, in the
facts of that case, excessive. It was observed that there was no dispute that
no written test was prescribed for promotion to the post of Manager and above
and the selection/promotion was only by viva voce test, so no limit could be
imposed for prescribing and Ors. [1998 (2) SCC 566] one of the grounds of
attack was that the Rules regarding selection for the post of Chief Personnel
Inspector in Railways, permitted only oral test in the form of viva voce and no
written examination was held.
It was
contended that the result of a selection merely on the basis of viva voce could
not be reasonably fair and was liable to lead to arbitrariness. There, out of
100 marks, 50 were allotted for professional ability without prescribing any
norms. While rejecting the contention, this Court, following the Lila Dhar's
case, held that at times for certain posts only interview was considered to be
the best method of selection. For all these reasons, we find no illegality in
Rule 12(3) of the 1995 Rules providing for selection of suitable candidates
based on their performance in the interviews for appointment to the posts of
Principals/Headmasters. The next prong of attack on the interview test is that
in the guidelines framed by the Commission no separate marks are allocated for
each of the seven items and the members of the Commission did not award
separate marks under each item therefore the selection was arbitrary and liable
to be set aside. Mr.Shanti Bhushan, on the other hand, supported the selection
and argued that having regard to the items specified in the guidelines awarding
of separate marks under each item would lead to most undesirable consequences
and even disastrous results.
He has
submitted that in such cases overall evaluation alone is the best method and
that was adopted by the Commission.
In the
guidelines framed by the Commission the following aspects are to be kept in
mind while evaluating a candidate : "Madhyamik Shiksha Ayog- The
candidates called for interview have to be adjudged by members of the Board for
75 Marks, keeping in view the following factors.
1.
Personality.
2.
Knowledge of the subject.
3.
Knowledge of current ideas and problems of the educational work diagnostic attitude
towards them.
4.
General Knowledge.
5.
Administrative ability regarding school management.
6.
Self expressive and impressive views.
7.
Achievement in curricular activities of the regional and State levels." It
is true that maximum marks for each item were not allocated. A perusal of the
original lists of participants in the interviews for the posts of
Principals/Headmasters with reference to each institution/school, shows that
the members of the Commission who interviewed the candidates awarded marks in
lump but separately after evaluating the candidate on the basis of
aforementioned factors. On a careful consideration of the factors contained in
the abovequoted guidelines, we find considerable force in the submission of Mr.Shanti
Bhushan that overall evaluation rather than awarding of marks for each item
will lead to proper and correct results. Assuming that each of the factors in
the guidelines is allocated equal marks; in a given case, if the personality of
the candidate and his administrative ability regarding school management are
miserably poor but his knowledge of current ideas and problems of educational
work, general knowledge and achievement in curricular activities etc., are good
and he secures higher marks than a candidate who is having good personality,
possess imaginative administrative ability regarding the school management and
satisfies the other factors certainly the former candidate will not be better
than the latter as a Principal/Headmaster for an institution/school. Such
examples can be multiplied by permutation and combination. In our view, items
mentioned in the guidelines are various aspects which have to be kept in mind
in evaluating a candidate for his suitability and fitness for being appointed
as the Principal/Headmaster of a institution/school. We, therefore, do not find
any illegality in the procedure of overall evaluation of the candidate without
fixing marks for each of the items noted above, adopted by the Commission, and
on this ground we are not inclined to hold that the selection is arbitrary.
Here, we may with advantage mention a decision of this Court in Dr.Keshav Ram
Pal vs. U.P.Higher Education Services Commission, Allahabad & Ors. (supra).
In that case also selection for the post of Principal was under consideration.
The appellant
who claimed to possess higher academic qualifications and the longest
experience, was not selected.
He
challenged the selection on the ground that although the basis of selection was
the candidate's academic attainments, teaching experience, administrative
experience and suitability for the post of Principal, marks were not separately
allocated under each of those heads, therefore, the procedure was arbitrary and
resulted in arbitrary selection. This Court held that the interview board was not
obliged to subdivide the marks and selection could not be said to be arbitrary
in the absence of such subdivision. It may be noticed here that initially there
was no provision for considering two senior-most teachers of each
institution/school in which the vacancy of Principal/Headmaster existed. On a
decision taken by the Government that two senior-most teachers of each of the
institutions/schools, where vacancy of Principal/Headmaster existed, should
also be interviewed, the Commission in its Extra-Ordinary Meeting held on April
24, 1996, took the following decision : "On the report of Hon'ble Member Shri
S.L.Adarsh the commission considered that the Regulation 1983 are not in force
at present. Therefore, the procedure which has been laid down for interview in
the present Regulations shall be complied with. Two senior most teachers shall
participate in the selection process, they would be considered only for their
respective institutions where they have been serving. No special preference has
been provided in the present Regulations as such their interviews would be held
in the same manner as prescribed for the direct candidates from open market and
they would be awarded marks as per the same procedure. In case, if any of the
two senior teachers of each institution secures higher marks then he/she would
be taken as selected and the other senior teacher would be left out at that
very point of time and the other general candidates would be considered for
other institutions in the Region on the basis of marks obtained in the
interview." The appellants are unsuccessful senior most teachers of
various institutions/schools who have challenged the method of selection for
the in-service teachers to find a way to the post of Principal/Headmaster. It
is a common case that in the interview, the in-service candidates were not
given any special preference and in their selection the same procedure, as was
adopted in the case of general candidates, was applied. Between the two senior
most teachers of each institution/school whoever secured higher marks was
selected for that institution/school and no candidate from the general pool was
selected ignoring the claim of the senior teachers for their institution/school
which is reasonable and fair from the point of view of senior teachers of the
institution/school concerned. The penultimate challenge is against the panel of
selected candidates prepared on April 15, 1997. It was submitted that in view of wide spread allegations
of favouritism and arbitrariness in the selection and preparation of panel of
selected candidates, the State Government issued a notification under Section 2
of the Uttar Pradesh State (Control Over) Public Corporation Act, 1975 (Act
41/75) on April 17, 1997, directing the Commission not to take any steps to make
selection by direct recruitment of the candidates for being appointed as
teachers including Principals/Headmasters and not to prepare any panel of
candidates but in violation thereof the Commission selected the candidates
after the date of the notification and ante dated the panel as if it was
prepared on April 15, 1997. That panel was received by the Regional Deputy
Director of Education on April
20, 1997 and that,
according to Mr.Goswami, would show that the panel was not prepared before the
date of the notification. It was urged that in the interests of justice, this
Court might peruse the original records of interview and preparation of panel
and determine its validity. Mr.Shanti Bhushan met that argument by challenging
the notification itself on the ground of lack of power in the Government to
issue such a notification to interdict the functioning of a statutory body and
submitted such an illegal notification did not bind the Commission. It was
further submitted that merely because the panel of April 15, 1997 was not sent through the Inspector but was sent directly
and was received by the Regional Deputy Director on April 20, 1997 it could not be concluded that the panel was ante-dated. Mr.Singh,
learned counsel appearing for the Commission, submitted that after the date of
the notification, no panel was prepared and that the preparation of panel was
completed and it was despatched from Allahabad on April 15, 1997 before the
date of the said notification and that no adverse inference could be drawn on the
ground that it was received at Meerut by the Regional Deputy Director on April
20, 1997. He placed before us the register of despatch to show that the panel
was despatched on April
15, 1997 itself. The
secretary of the Commission produced the original panel and the original
records of interviews conducted by the Commission. The questions that arise are
: (i) whether the selection and preparation of the panel was completed before
April 15, 1997; if not, (ii) whether the notification of April 17, 1997 issued
under Section 2 of the Act 41/75 is valid in law; and (iii) what is the effect
of the said notification on the impugned panel? At the outset, we may observe
that the allegation that to get over the notification of April 17, 1997 the
panel was ante dated to April 15, 1997 is fraught with very serious inferences,
namely, the member of the Commission joined together to conspire to get over
the said notification and having selected the candidates and prepared the panel
after April 17, 1997 showed on record as if it was done on April 15, 1997 which
are patently illegal acts. The allegation is too wild and preposterous to be
entertained in the absence of any incontrovertible and irrefragable material to
support it and to rebut the presumption of regularity of the official record
and we outrightly reject the same. A perusal of the original panel of April 15, 1997 discloses that it contains the
names of the selected candidates for the posts of Principals/Headmasters of
various schools in different cities of Meerut region. On examination of the original lists from the records of
interview, it appears that the selection of the candidates took place between
November 1996 and February 1997 long before the date of the preparation of the
panel and it appears to us that the panel was prepared before April 15, 1997
but it was communicated by the Commission at Allahabad to various educational
authorities including the Regional Deputy Director, Meerut on April 15, 1997.
In the court we perused the calendar of 1997 and noted that between April 16, 1997 and April 20, 1997 fell public holidays for Ram Navami, Idu'l Zuha and Sunday.
The laxity with which an office generally functions should neither be a matter
of any surprise for panel of selected candidates of April 15, 1997 to reach the Regional Deputy Director of Education, Meerut from Allahabad on April 20 nor could it furnish any basis to make a rabid
allegation of ante dating. In view of this finding, it is unnecessary to go
into the other questions as to the validity of the notification and its effect
on the panel of candidates dated April 15, 1997. Now, one important aspect regarding the validity of panel
of April 15, 1997 remains to be considered. In view
of the allegations with regard to the selection and empanelling of the
candidates, this Court by Order dated September 29, 1999 directed the Vigilance Department
to submit a copy of the vigilance inquiry report. At the time of hearing when
we asked the learned counsel for the State about the report we were informed
that the Vigilance Department did not prepare the report. The explanation given
to us was that the records were with this Court but this is incorrect because
at the time of hearing, having found that the records were not available, we
issued notice to the Secretary to attend the Court alongwith the records and
that is how the records were made available to this Court on April 5, 2000. To ascertain whether the impugned
panel of April 15, 1997 represents correctly the candidates who were selected
by the Commission, we perused the original records keeping in mind the
provisions of rule 12(3) of the 1995 Rules and the guidelines framed by the
Commission with regard to selection of the senior teachers, extracted above,
and verified the lists of candidates who participated in the interview in
respect of each institutions/schools. In the lists marks awarded to the
candidates are also noted. We may indicate here that for purposes of conducting
interviews for the posts of Principals/ Headmasters in different institutions/schools
in the Meerut region, each of the
institutions/schools was assigned a code number. There are in all 258 code
numbers. Thus, each list of candidates who were called for interview for the
post of Principal/Headmaster of an institution/High School contains a code number. In each
list under the caption `senior teachers of the institution/school' the names of
two senior teachers of the institution/school are noted and under the caption
`candidates' the names of general candidates are mentioned. Against their names
marks awarded by each member of the Commission and the average marks secured by
the candidates are also written. The word `chayanit' is noted in Hindi against
the name of the senior teacher who secured higher marks than the other
candidates in the list and was selected. Where only one senior teacher from
that institution/school participated in the interview and he secured higher
marks, he was accordingly selected. But where a general candidate secured
higher marks than the senior teachers of the institution/school he was not
selected and a tick mark was put against the name of the general candidate,
which does not indicate that he was necessarily selected for the same
institution/school.
Inasmuch
as we are not concerned with the selection of the general candidates, we did
not further probe into the matter. Though at the time of the argument it was
submitted that all the appellants except two, appeared for interviews in Meerut
region, the particulars of the appellants as to when and from which institutions/schools
they appeared for interview, were not furnished so we were unable to verify as
to how many marks they secured and whether their non-inclusion in the impugned
panel is correct or not. From the record, supplied to us, we could find about
200 such lists. The names of the appellants, [except that of Kiran Gupta -
appellant in Civil Appeal Nos. of 2000 (@ S.L.P.(C)Nos.19035-38/98)], do not
figure therein. The name of Kiran Gupta who is a senior teacher, is found in
the list bearing code No.239, category 02. She secured 42 marks whereas a
general candidate secured 45 marks therefore her name was not included in the
impugned panel and she cannot have any grievance for not being selected. On the
scrutiny of the records, to the extent we have done, we are satisfied that the
allegations of malpractice and illegality in respect of selection and
empanelling are baseless and untenable. We are left with the last contention of
the appellants that their claim for regularisation in the posts in which they
have been working as ad hoc Principals/Headmasters, may be ordered. Indeed,
their contention is that they stood regularised under Section 33-A(1-A) of Act
No.5 of 1982 Act as amended in 1991 read with Section 33-C(1)(a)(ii) and (c).
The High Court took the view that their claims must have been settled under
sub-section (1-A) of Section 33-A of Act No.5 of 1982 long before the cut- off
date (April 6,1991). It was observed that if any
dispute with regard to any individual claim under the said provision is pending
before the authority, such claim might be considered. With regard to the claim
based on Section 33-C(1)(a)(ii), on the basis that some of them were appointed
prior to August 7, 1993 and therefore they are entitled to be regularised, the
High Court opined that the provisions of Section 33-C came into force on April
20, 1998, long after the vacancies were notified to the Commission and in
respect of which the selection had already been completed by that date,
therefore, in view of sub- section (6) of Section 33-C their claim did not
survive. It will be apt to quote the said provisions here : "33-A.
Regularisation
of certain appointments.- (1) *** *** *** (1-A). Every teacher appointed by
promotion, on ad hoc basis against a substantive vacancy in accordance with
paragraph 2 of the Uttar Pradesh Secondary Education Services Commission
(Removal of Difficulties) Order, 1981, as amended from time to time, who
possesses the qualifications prescribed under, or is exempted from such
qualifications in accordance with the provisions of, the Intermediate Education
Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh
Secondary Education Services Commission and Selection Boards (Amendment) Act,
1991, be deemed to have been appointed in a substantive capacity provided such
teacher has been continuously serving the institution from the date of such ad
hoc appointment to the date of such commencement.
33-C(1)
Any teacher who,- (a)(i) *** *** *** (ii) was appointed by promotion on or
after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a
substantive vacancy in the post of a Principal or Head Master in accordance
with Section 18;
(b)
*** *** *** (c)has been continuously serving the institution from the date of
such appointment up to the date of the commencement of the Uttar Pradesh
Secondary Education Services Commission (Amendment) Act, 1998;
(d)
*** *** *** shall be given substantive appointment by the management.
(2),
(3), (4), (5) *** *** (6) Nothing in this section shall be construed to entitle
any teacher to substantive appointment, if on the date of commencement of the
Ordinance referred to in clause (c) of sub-section (1) such vacancy had already
been filled or selection for such vacancy has already been made in accordance with
this Act." Insofar as the claim based on Section 33-A(1-A) is concerned, a
perusal of sub-section (1-A) of Section 33-A discloses that to attract the
provisions of this sub-section the teacher which includes Principal/Headmaster
should fulfil the following conditions : (i) he must have been appointed on ad
hoc basis against a substantive vacancy;
(ii) his
appointment should have been made in accordance with para 2 of the Uttar
Pradesh Secondary Education Services Commission (Removal of Difficulties) Order
1981, as amended from time to time; (iii) he must possess the qualification
prescribed under the provisions of the Act or he should be exempted under the
provisions of the said Act;
and
(iv) he should have been continuously serving in the institution/school from
the date of his ad hoc appointment till the date of commencement of the Uttar
Pradesh Secondary Education Services Commission and Selection Boards
(Amendment) Act, 1991. In this batch of cases as individual particulars of the
appellants on these aspects are not available, the High Court, in our view,
rightly observed that if any such cases are pending the same may be examined
and appropriate order be passed in accordance with the terms of the said
provisions. We can only add that if any of the appellants makes a claim under
these provisions within three months of this judgment to the Director of
Education, the same shall be considered within three months from the date of
receipt of such representation and the result be communicated in writing to the
candidate. Insofar as claim based on Section 33-C(1)(a)(ii) is concerned, the
candidates has to show that the following conditions are satisfied :
(i) a
teacher was appointed by promotion on ad hoc basis in the post of
Principal/Headmaster; (ii) the appointment by promotion was made on or after
July 31, 1988 but not after August 6, 1993; (iii) though the appointment was an
ad hoc appointment, it was against a substantive vacancy; (iv) the appointment
was in accordance with Section 18 of U.P.Act No.5 of 1982; and (v) the
appointee has been continuously serving in the institution/school from the date
of such appointment upto the date of commencement of Uttar Pradesh Secondary
Education Services Commission (Amendment) Act, 1998 (i.e. April 20, 1998). Even
if an incumbent satisfies all these conditions, his right will be defeated by
sub-section (6) of Section 33-C if on April 20, 1998 such vacancy has already been
filled or selection for such vacancy has been made in accordance with the U.P.Service
and Selection Board Act, 1982. Here again, the particulars of the appellants
who claim to fulfill these requirements are not available, therefore, we
consider it appropriate to leave it to the Director of Education who shall look
into the claims made under this provision. As constitutional validity of
Section 33- C(6) has not been challenged in the High Court, we do not propose
to go into it here. However, we deem it proper to observe that the regularisation
of the candidates under Section 33-C(1)(a)(ii) is made to depend on a mere
chance of a substantive vacancy either being filled in or the selection for
that vacancy being completed. There may still be cases where the posts of
Principals/Headmasters may be lying vacant either because the selected
candidates did not join or because the incumbents having obtained posting of
their choice vacated the posts or for any other reason the posts might have
fallen vacant. In all such cases the benefit of Section 33-C(1)(a)(ii) has to
be given to the ad hoc appointees. We issue a similar direction as issued above
in cases of claims based under Section 33A(1-A) of the said Act. Subject to the
above observations, these appeals are dismissed. The parties are directed to
bear their own costs.
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