VIVEK MUDGIL Vs. STATE OF U.P.

JUDGEMENT

(1.) The special appeal has arisen from a judgment of the learned Single Judge dated 19 March 2015. The appellant is aggrieved by the dismissal of his writ petition (Writ A No.538 of 2009) filed under Article 226 of the Constitution seeking to question the legality of an order dated 10 December 2008 passed by the U.P. Secondary Education Services Selection Board, (the Board) cancelling the appointment of the appellant as Principal of the Saraswati Inter College, Jhansi. The order of appointment which was issued on 11 July 2008 was cancelled on 10 December 2008 on the ground that, on the last date for the submission of applications, the appellant did not fulfill the qualifications prescribed for the post of Principal.

(2.) The appellant was appointed as a Lecturer in Physics and his services have been regularised with effect from 12 January 1990. The appellant had proceeded on study leave between 15 April 1992 and 8 March 1996. It is not in dispute that on the last date for the submission of applications, the experience of the appellant was nine years and three months as against the required norm of ten years. The Board prepared a panel of selected candidates in which the name of the appellant was included on 1 August 2002. In the meantime, litigation took place before this Court in which selections made by the Board to the post of Principals in Intermediate Colleges including the institution in which the appellant had been selected were called into question. Writ petitions were filed before a learned Single Judge of this Court and the matter was carried in appeal before a Division Bench which quashed the panel of selected candidates. Eventually on 16 May 2008, the Supreme Court allowed all the appeals and vacated the interim orders which had operated in respect of the panel prepared by the Board. The appellant joined as Principal of the college on 15 July 2008. A complaint was made to the District Inspector of Schools, Jhansi on 18 July 2008 on the ground that the appellant did not possess ten years of teaching experience which was mandatory for selection to the post of Principal under the U.P. Secondary Education Services Selection Board Rules, 1998 (Rules of 1998) read with Regulation 1 of Chapter II of the Regulations framed under the Intermediate Education Act, 1921 (Act of 1921) in Appendix 'A'. The appointment of the appellant was cancelled on 10 December 2008 which led to the filing of the writ petition. The learned Single Judge has dismissed the writ petition by the impugned judgment and order dated 19 March 2015 holding that (i) the period during which the appellant was on study leave did not qualify as teaching experience; (ii) on the last date for the submission of applications, the appellant failed to met the required qualifications inasmuch as he did not possess ten years of teaching experience; and (iii) an appointment which was illegal could not be protected under Article 226 of the Constitution as that would amount to the perpetuation of an illegality.

(3.) The submission which has been urged on behalf of the appellant by learned Senior Counsel is that the possession of ten years' teaching experience cannot be regarded as an essential qualification. The submission is founded on the premise that under Section 16-E (3) of the Act of 1921, there is a bar to the appointment of the Head of an institution or a teacher who does not possess the minimum qualifications prescribed by the Regulations but the proviso contemplates that a person who does not possess such qualifications may also be appointed if an exemption has been granted to him by the Board of Intermediate Education having regard to his education, experience and other attainments. The Board, it has been submitted, had issued a general circular on 15 April 1977 contemplating the grant of an exemption subject to fulfilment of certain conditions. Though concededly, no exemption was granted to the appellant, learned counsel submitted that the provisions contained in the circular dated 15 April 1977 would indicate that the possession of teaching experience of ten years was not regarded as mandatory. Moreover, it was urged that though the State Legislature subsequently enacted the U.P. Secondary Education Services Selection Board Act, 1982 (Act of 1982), Section 32 provides that the provisions of the Act of 1921 and the Regulations framed thereunder would continue to be in force for the purposes of selection and appointment, among other things, insofar as they are not inconsistent with the provisions of the Act of 1982. It was urged that the power to grant exemption under Section 16-E (3) of the Act of 1921 is not inconsistent with any of the provisions of the Act of 1982.