PYARE LAL CHAUDHARI Vs. STATE OF U P

JUDGEMENT

(1.) SHEO Charan Das Kanhaiya Lal Inter College, Allahabad, is an aided and recognised institution. In July, 1975. a vacancy arose in the office of the Principal of the said institution. On 7-9-1975, the Committee of Management adopted a resolution that the petitioner being the senior most Lecturer should be appointed as Principal on ad hoc basis for a period of six months. That resolution was approved by the District Inspector of Schools. In May, 1977, the management of the institution sought permission from the District Inspector of Schools for issue of advertisement inviting applications for appointment to the post of Principal. The District Inspector of Schools accorded approval to the Managements' proposal for the selection of a permanent incumbent for appointment to the post of Principal. The management thereupon issued an advertisement and invited applications. The petitioner also applied for the same. 15th September, 1977, was fixed for interview of the candidates before the Selection Committee duly constituted under the provisions of the U. P. Intermediate Education Act and the Regulations framed thereunder. Since the petitioner was not called for interview he filed this petition under Article 226 of the Constitution on 12-9-1977 for the issue of a writ of mandamus directing the District Inspector of Schools and the Committee of Management of the institution to treat the petitioner on probation on the post of Principal with effect from 21-4-1977 in accordance with section 16-GG of the U. P. Intermediate Education Act, 1921 and also to quash the State Government's notification No. 3185/XV-7-75-2 (18)-75, dated July 7, 1976, as amended by notification No. 3238/XV-7-2-(18)-75 dated December 9,1976, and to declare the Regulations framed under those provisions ultra vires of the Act. The petitioner has further prayed for a writ of mandamus directing the respondents not to hold selection or appoint any other person to the post of Principal. Sections 16-E, 16-F, and 16-G of the U. P. Intermediate Education Act, 1921, hereinafter referred to as the Act, and the Regulations framed thereunder, prescribe procedure for selection and appointment of teachers and head of institution in aided and recognised institutions. The requisite qualifications of teachers and Head of institutions are also prescribed therein. Sections 16-E, 16-F and 16-G were drastically amended by the U. P. Secondary Education Laws (Amendment) Act, 1975, 1975 (U. P. Act 26 of 1975), which came into force on 18-8-1975. The Amending Act conferred power on the State Government to issue orders removing any difficulty which may arise in giving effect to the provisions of the Amended Act. Since the qualifications and the detailed procedure for selection as contemplated by the Amending Act could not be prescribed under the Regulations, a difficulty arose relating to selection and appointment of heads of institutions in the vacancies that had occurred. In order to meet the situation the State Government issued U. P. Secondary Education (Removal of difficulties First) Order on 18-8-1975. The order authorised ad hoc appointment of teachers in the institutions for a period of six months without complying with the provisions of Sections 16-E and 16-F of the Principal Act as amended by U. P. Act 26 of 1975. Later on the State Government issued various orders removing difficulties and extending the term of the ad hoc appointments upto 20th May, 1977. On2Ist April, 1977, the Act was further amended by the U. P. Ordinance No. 5 of 1977, whereby a new section 16-GG was added to the Principal Act. The Ordinance was later on converted into an Act by the U. P. Education Law (Amendment) Act No. V of 1977. The newly added section 16-GG regularised appointments of ad hoc teachers provided conditions as laid down therein were fulfilled. Meanwhile the State Government in exercise of its powers under section 16-E of the Act framed regulation 10 prescribing the procedure and qualifications for appointment of heads of institutions and also the procedure for assessment of merits of the candidates and other allied matters by a notification dated July 7, 1976. which was amended by a subsequent notification dated December 9, 1 976. Sri S. N. Misra, learned counsel for the petitioner, contended that the petitioner's ad hoc appointment as head of the institution stood regularised by section 16-GG of the Act, therefore no selection or appointment could be made to that post. Section 16 GG lays down that appointment of every teacher of an institution made between August 18,1975, and September 30, 1976, on ad hoc basis against a clear vacancy possessing prescribed qualifications shall with effect from the date of commencement of the section, namely, 21st April, 1977, be deemed to have been made in substantive capacity, if such teacher has been continuously serving the institution from the date of his appointment till the commencement of the Act, i.e. 21-4-1977, even though the appointment may not have been made in accordance with the provisions of sections 16-E, 16-F and 16-FF. The section creates a legal fiction that appointment of every such teacher shall be deemed to be in a substantive capacity on probation from 21st April, 1977. Sub-section (3) is however in the nature of exception, it lays down that the provisions contained in the section shall not entitle any teacher to substantive appointment on his post if on the date of commencement of this section such post had already been filed and selection for appointment on the post had already been made there under or if the teacher was related to any member of the Committee of Management or principal or Head Master of the institution. The legislature enacted section 16-GG to grant benefit to those teachers who had been appointed on ad hoc basis during the period selections could not be made and for that purpose it validated their appointment even though the ad hoc appointees were not selected or appointed in accordance with the procedure laid down in sections 16-E, 16-G and 16-FF. On a plain and simple reading of the section, it is amply clear that its provisions do not regularise ad hoc appointments of head of institutions. The provisions of the Act and the Regulations framed thereunder have consistently maintained distinction in the matter of qualifications constitution of selection committees, selection and appointment of a head of institution and a teacher. The legislature was alive to the fact that the head of an institution is invested with the power of administrative control over the affairs of the institution and he is responsible for the discipline and smooth running of the institution. Under the supervision of the head of the institution teachers carry out their duty and the students always look to the head of the institution as guiding force. The legislature therefore while prescribing procedure for selection of teachers and prescribing, qualifications laid down separate provisions for selection and appointment of the head of the institution. The legislature in its wisdom did not consider it necessary to regularise the ad hoc appointment of head of institutions, particularly for the reason that under the Removal of Difficulties Order, the senior most teacher of an institution was appointed head of the institution on ad hoc basis without screening or without judging his suitability for the said post. The legislative intent is quite obvious, benefit of Section 16-GG is not available to those who may have been appointed head of an institution on ad hoc basis without any selection. Learned counsel urged that since section 16-GG regularised the appointment of every teacher, it would include the Principal who is head of the institution also. He emphasised that the Act does not define the expression "teacher", therefore teacher would include head of the institution also. It is true that in its generic sense the expression "teacher" would include the Principal or Head Master who is head of the institution, but the legislature has maintained a distinction between a teacher and head of the institution in making provision for their selection and appointment under sections 16-E, J6-F and 16-FF. It is significant to note that two different expressions have been used in sections 16-E, 16-F and 16-FF in making provision for selection of teachers and Head of institution. If the expression "teacher" included head of the institution also, there was no necessity for using two separate expressions "teachers" and "heads of institution''. The expressions "teachers" and "head of institution" have been consistently mentioned in sections 16-E, 16-F and 16-FF whereas section 16GG refers to teachers only. It therefore follows that the provisions of section 16-GG do not apply to head of institution, and any person appointed as principal or Head Master of an institution on ad hoc basis during the period between August 18, 1977 and September 30, 1976, is not entitled to the benefit of section 16-GG. This conclusion is further supported by the definition of "teacher" as contained in clause 2 (c) of the U. P. Secondary Education (Removal of Difficulties) (Fifth) Order, 1976. The expression "teacher" as defined in clause 2(c) means "a teacher (not being head of the institution) of a recognised Intermediate College, Higher Secondary School or High School and includes a male teacher appointed in an institution for girls and a lady teacher appointed in an institution for boys. "The definition of teacher as contained in this provision indicates that the expression "teacher" does not include a Principal or Head Master of the institution. We are therefore of the opinion that as the petitioner was not appointed in accordance with sections 16-E, 16-F and section 16FF he is not entitled to hold the post of Principal in a substantive capacity and the provisions of section 16-GG are not applicable to him. The respondents were justified in taking steps for selection and appointment to the post of Principal in accordance with the provisions of the Act and the Regulations framed thereunder. The petitioner's contention that regulation 10, as framed by the Government under its notification dated July 7, 1976, and amended by the subsequent notification dated December 9, 1976, his ultra vires of the Act is untenable. Section 16-E lays down that the appointment to the post of the head of institution shall be made in accordance with the provisions contained thereunder. It lays down that the advertisement for the vacancy containing such particulars as may be prescribed shall be published in at least two news-papers having adequate circulations in the State. It further lays down that no person shall be appointed as head of the institution or teacher in an institution unless he possesses the minimum qualifications prescribed by the regulations. Sub-sections (4) and (5) provide that the application shall be dealt with any interview cards shall be issued and meeting of the selection committee shall be convened in accordance with the regulations. The Selection Committee is required to prepare a list in order of preference of the names of three candidates found suitable for appointment. The provisions contained in section 16-E therefore contemplate framing of regulations laying down qualifications and the manner of selection. Section 16-F constitutes selection committee and it further provides that the business of the selection committee shall be conducted in such manner as may be prescribed. This section also contemplates framing of regulations regulating the manner and transaction of business by the selection committee. The State Government in exercise of its power under sections 16-E, 16-F and 16-FF has framed regulations for appointment of heads of institutions and teachers. Regulation 10 as framed under the impugned notifications contains provisions for quality point marks for candidates who may be called for interview on the basis of the marks. It further prescribes qualifications of teachers and head of institutions. In our opinion regulation 10 as framed under the impugned notification does not travel outside the scope of the Act. The validity of the impugned notifications; and regulation 10 as contained in Chapter III was considered by a Division Bench of this Court in Brahma Narain Joshi v. State of U. P., (Writ Petition No. 2253 of 1977) connected with Writ Petition No. 2254 of 1977. The Division Bench after considering the matter at length held that the State Government's notification dated July 7, 1976, as amended by the subsequent notification dated December 9, 1976, framing regulation 10 was valid and constitutional. The plea that the regulation was ultra vires of the U. P. Intermediate Education Act was repelled. We are in respectful agreement with the view taken by the Division Bench. The petitioner has failed to substantiate his contention that the impugned notifications are ultra vires of the Act. We, therefore, hold that the State Government's notification dated July 7, 1976, as amended by the notification dated December 9, 1976, are valid and ultra vires of the Act. In view of the above discussion, the petitioner is not entitled to hold the post of Principal in a substantive capacity. None of the rights have been violated by the respondents in taking steps to fill up that post by selection in accordance with the provisions of the Act. The petitioner's grievance that he had not been called for interview is also untenable. The petitioners' case has been considered in accordance with the criteria laid down in the regulations and as better suitable candidates were available the petitioner was not called for interview. The petitioner has failed to show that he has any legal right for being called at the interview. We therefore hold that the petitioner is not entitled to any relief. In the result the petition fails and is accordingly dismissed with costs. The interim order dated 12-9-1972 is vacated.