RAM BRIKSH MAURYA Vs. MURLIDHAR MISHRA

JUDGEMENT

(1.) This Special Appeal has been preferred by respondent No. 4 of Civil Misc. Writ Petition No. 28451 of 1991 against the order dated 8th March, 1994, passed by the learned Single Judge by which writ petition has been allowed and the panel dated 26th August, 1991 prepared by U.P. Secondary Education Service Commission, Allahabad (here-in-after referred to as 'Commission'), has been quashed so far as it related to Saheed Madhuban Karm Inter College, Khoribari, district Deoria (here-in-after referred to as 'College), respondent No. 4 of the writ petition, appellant herein, was selected as Principal. For the sake of clarity respondent No. 1 and the appellant in this appeal shall be referred to as petitioner and respondent No. 4.

(2.) The facts, in short, giving rise to this appeal are that Sri Rama Kant Mishra, Principal of the College, attained the age of superannuation and retired from the post on 30th June, 1988. The vacancy was notified to the Commission. However, as the candidate could not be recommended for appointment, petitioner was appointed ad-hoc Principal w.e.f. 1st July, 1989 by the Committee of Management which was approved by District Inspector of Schools, Deoria on 10th August, 1989. The Commission initiated proceedings for selection of the candidate and the post was advertised by Advertisement No. 1 of 1989, Cl. (iii) of sub-rule (1) of Rule 4 of the U.P. Secondary Education Service Commission Rules, 1983 (here-in-after referred to as 'Rules') requires that in regard to the post of head of the institution, the management shall also forward the names of two senior most teachers to the Commission alongwith copies of their service record (including character rolls) and such other records or particulars as the Commission may require from time to time. The District Inspector of Schools by his letters dated 15-3-1989. Annexure-2 to the writ petition and letter dated 19th April, 1989, Annexure-3 to the writ petition required the management to forward the papers including service record etc. in compliance of the aforesaid Rule 4 (l)(iii) of the Rules. The Interview Board of the Commission held interview of the candidates on 24th April, 1991 and published the panel on 28th June, 1991 by which respondent No. 4 was declared selected. Aggrieved by the aforesaid selection of respondent No. 4, petitioner filed Civil Misc. Writ Petition No. 28451 of 1991 challenging the selection on the ground that the service records including character rolls and other relevant records pertaining to petitioner and respondent No. 4 were not placed before the Interview Board. The Manager informed the District Inspector of Schools that the service records were not available in the record of the Commission. The District Inspector of Schools thereafter sent all the service records vide his letter dated 3rd May, 1991 which was received by the Commission on 6th May, 1991 i.e. selection proceedings were over. It was also claimed that the functioning of the Commission was very doubtful and on the ground of which State Government vide its order dated 17th July, 1991 directed the authorities not to make any appointment on the basis of selection held by Commission. It was also alleged by the petitioner that respondent No. 4 was not granted exemption of the qualification of training by the competent authority hence he was not qualified for the post. In absence of the relevant service records, respondent No. 4 was wrongly assumed senior and has been illegally selected. In paragraph No. 15 of the writ petition, it was also claimed that the Manager of the Committee of Management was always ready to harm the petitioner and firstly he deprived him of the opportunity of being appointed as ad-hoc Principal on 1st July, 1988 and further petitioner's service could not be regularised as the Principal in pursuance of the Ordinance No. 28 of 1991 issued on 6th April, 1991. In Writ Petition, two counter affidavits were filed on behalf of Commission by Sri T.N. Upadhyay, Superintendent Grade-2 of the same date. In the counter affidavit sworm at 11.30 A.M. which is styled as counter affidavit, it has been stated that the service records of the petitioner and respondent No. 4 were received alongwith letter dated 28.8.1989 of the Deputy Director of Education. However, the District Inspector of Schools vide his letter dated 15-2-1990, again required the record for fixation of pay scale of both petitioner and respondent No. 4. The papers were, accordingly, sent back by Commission vide letter dated 24th February, 1990. The service records etc. were again sent by District Inspector of Schools vide letter dated 30th March, 1990, which were considered on 24th April, 1991 by the Interview Board. It has been further said in the counter affidavit that the Ordinance No. 28 of 1991 was not applicable of the post of Principal. Respondent No. 4 possessed requisite qualification and in view of the 15 years past service the training qualification stood exempted under law. The letter dated 3rd May, 1991 of the District Inspector of Schools alongwith necessary papers were forwarded on the request of the Manager and rest of the facts have already been explained in paragraph No. 9 of the counter affidavit. It has been further stated that the petitioner was given 30 marks as per guide-lines for his administrative experience. It was stated in the second counter affidavit of the same date that the senior most teachers are awarded marks at the time of interview for their administrative capacity. It has been said that the records relating to petitioner was made available by District Inspector of Schools to Commission vide his letter dated 30th March, 1991 and it was considered by Commission. Selection has been done strictly in accordance with the guide-lines which have been approved by this Court in many writ petitions. Service record of the petitioner has been considered by the Commission.

(3.) Counter affidavit has been filed by Prabhu Nath Rai, Manager of the College on behalf of respondent No. 2. He has stated that necessary papers relating to both petitioner and respondent No. 4 were forwarded by the committee of management which was received in the office of District Inspector of Schools on 5-6-1989. In paragraph No. 13, it has been stated that he was present in the office of Commission on 24th April, 1991 at 9.30 A.M. He was informed by Shri K.K. Yadav, Adhiyachna Clerk that the service records pertaining to petitioner and respondent No. 4 have been misplaced and it could not be made available to the Board before which the selection proceedings commenced at 9.30 A.M. when he came back to Deoria on 27.4.1991, he apprised District Inspector of Schools of this fact and requested him to send all the papers to the Commission again as they were not available. It has been further said that the relevant records were already sent to District Inspector of Schools for communicating it to the Commission on alongwith letter dated 18th March, 1991.