TMI Blog2008 (5) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... al Leave Petitions is granted. 2. Delay condoned. 3. Leave granted. 4. Challenge in this batch of appeals is to a common judgment rendered by a Division Bench of the High Court of Judicature at Allahabad in Special Appeal No. 159 of 2001 and other connected appeals, partly disagreeing with and reversing the view of the learned Single Judge in regard to the selection of Principals of various institutions, by direct recruitment. 5. To comprehend the controversy in these cases, it would suffice to refer to the facts in SLP (C) Nos.19335-19336 of 2003, which was otherwise treated as the lead case. 6. On 12th August, 1998, 24th December, 1999 and 3rd March, 2002, U.P. Secondary Selection Board (hereinafter referred to as the Board) issued advertisements inviting applications for direct recruitment to the posts of teachers, lecturers and the heads of several Institutions. In these appeals we are concerned with the selection of heads of the Institutions/Principals. The advertisements were issued under the U.P. Secondary Education Selection Board Act, 1982 (hereinafter referred to as the Principal Act). In the advertisement, the vacancies for the post of Principal in respective I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Single Judge formulated as many as 15 points for determination. 9. The learned Single Judge answered all the 15 points, so formulated, against the writ petitioners. Consequently, vide order dated 14th February, 2001, all the writ petitions were dismissed. 10.Being aggrieved, the writ petitioners carried the matter in Special Appeals to the Division Bench. The Division Bench affirmed the view taken by the learned Single Judge on all the points except on one point (No.(iii)), namely, in regard to the requirement of minimum qualification mentioned in the advertisements. The Division Bench held that under sub rule (5) of Rule 15 of the Rules, the qualification as laid down in Appendix A of Regulation 1 of Chapter II of the Intermediate Act had been adopted for appointment to the post of teachers, which includes Principals. For the post of Principal, the said provision provides only for 4 years teaching experience of class IX to XII and not the teaching experience of 4 years as Lecturer, as prescribed in the advertisements. Therefore, by prescribing in the advertisement 4 years teaching experience as a Lecturer, the Board had exceeded its jurisdiction, which, being contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahajan Ors. Vs. State of Maharashtra Anr., Rani (1977) 2 SCC 548 Choudhury Vs. Lt. Col. Suraj Jit Choudhury (1982) 2 SCC 596 and M/s. Aphali Pharmaceuticals Ltd. Vs. State of Maharashtra Ors. (1989) 4 SCC 378. It was also contended that in view of Section 32 of the Principal Act, the said Appendix has to give way to the new Rules and, therefore, with regard to the post of a Principal, insofar as the experience is concerned, the minimum qualification would stand modified in terms of the said Note . It is, thus, asserted that there is no conflict between the contents of the impugned advertisements and the relevant Rules. 13.Dr. R.G. Padia, learned senior counsel appearing on behalf of the ad-hoc Principals, on the other hand, submitted that insofar as the academic qualifications under Rule 5 of the 1998 Rules are concerned, qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Act having been adopted for the purpose of 1998 Rules as well, the minimum qualification for the post of Principal cannot be at variance with what is specified in the said Appendix, which includes experience of teaching classes IX to XII and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8th December, 1994, four Regional Selection Boards, which were established by the 1993 amendment, were abolished and one Commission for the entire State was provided for. In the year 1998, yet another amendment, effective from 20th April, 1998, was made to the Principal Act, entrusting the entire selection process to the Board in place of the Commission. By the said amendment, Section 33-C was also inserted in the Principal Act by which ad-hoc teachers and Heads, who were appointed not later than 6th August, 1993, were sought to be regularized. 16.The pivotal Rule 5 of the 1998 Rules, prescribes academic qualifications for appointment to the post of teacher. It reads as follows: 5.Academic qualifications.-A candidate for appointment to a post of teacher must possess qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921. 17.Chapter II of the Intermediate Act deals with appointment of heads of institutions and teachers. Regulation 1 of the said Chapter stipulates that the minimum qualification for appointment as heads of institutions and teachers in any recognized institution, whether by direct recruitment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t two daily newspapers, having wide circulation in the State, and call for the applications for being considered for selection in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Headmaster of a High School, the name and place of the institution shall also be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application. (2) (3) (4) The Board shall prepare lists for each category of posts on the basis of quality points specified in Appendix B or Appendix C , as the case may be, marks in written examination and marks for experience as follows: (i) 30 per cent marks on the basis of quality points; (ii) 40 per cent marks on the basis of the written examination; and (iii) 20 per cent marks for experience more than the required experience in such manner that 4 marks shall be allotted for having doctorate s degree and 2 marks shall be given for each year of such experien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior most teachers of the institution whose names are forwarded by the Management through Inspector under Clause (b) of sub-rule (2) of Rule 11. (7) The Board shall hold interview of the candidates and 10 per cent marks shall be allotted for interview. The marks obtained in the written test and the quality points by the eligible candidates shall not be disclosed to the members of the Interview Board: Provided further that in the interview, ten per cent marks shall be divided in the following manner: (i) 4 per cent marks on the basis of subject/general knowledge; (ii) 3 per cent marks on the basis of personality; and (iii) 3 per cent marks on the basis of ability of expression. (8) The Board then, 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 after adding the marks obtained under sub-clause (4) or sub-clause (5) above, as the case may be, with the marks obtained 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 instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paramount and mere use of a label cannot control or deflect such intention. In Dattatraya Govind s case, it was observed that the legislature has different ways of expressing itself and in the last analysis the words used alone are the true repository of legislative intent. 21.Applying the aforenoted principles, we are of the opinion that the Note appended to sub rule (5) of Rule 12 of the 1998 Rules has the effect of modifying the conditions of qualifying experience mentioned in Appendix A of the Regulations under the Intermediate Act. 22.Having come to the said conclusion, the issue which still survives for consideration is whether for appointment to the post of Principal, the qualifying experience as stipulated in the said Note would apply or the one prescribed in the Appendix-A to Regulation I of Chapter II of the Regulations made under the Intermediate Act. In our view, answer to the question can be found in Section 32 of the Principal Act, which provides that the provision of the Intermediate Act and Regulations made thereunder will continue to be in force in case they are not inconsistent with the Principal Act and the Rules made thereunder. As noted hereinbefore N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1967 SC 1182 24. In Ramanbhai s case (supra) this Court had said that while dealing with an appeal before it, this Supreme Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like Order XLI, Rule 22 of the Code of Civil Procedure, it can devise an appropriate procedure to be adopted at the hearing. It was observed that there could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. It was held that normally a party in whose favour the judgment appealed from has been given is not granted special leave to appeal from it and, therefore, considerations of justice require that in appropriate cases a party placed in such a position should be permitted to support the judgment in his favour, even upon the grounds which were negatived in that judgment. Subsequently, explaining the issue a little further, in Jamshed Hormusji Wadia s case (supra) it was observed that the permission to the respondent to support the decree or decision under appeal by laying challenge to a find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evail over the Principal Act. Relying on the decision of this Court in Dr. Suresh Chandra Verma Ors. Vs. The Chancellor, Nagpur University Ors (1990) 4 SCC 55., it is urged that if the advertisements are held to be bad for ignoring the provision for reservation, these have to be struck down in entirety. 27.Learned counsel for the appellants, on the other hand, submitted that the post of Principal being a single post, the provisions of the 1994 Act shall have no application. According to the learned counsel, the heads of several institutions are neither treated nor do they belong to a common cadre. Their employers are different. The Board only makes the selection of the head of the institution concerned and the appointment letters are issued by the respective committees of the management. It was further submitted that though the Principal Act was enacted in the year 1982, yet Section 10 thereof expressly excludes the post of Principal from the purview of 1994 Act, which applies only to the post of teachers. It was asserted that the post of the Principal being a single cadre post, the policy of reservation cannot be applied as it would amount to 100 per cent reservation, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of reservation and, therefore, there is no question of clubbing the post of the Principals in all the educations institutions for the purpose of applying the principle of reservation under the 1994 Act. We are, therefore, in agreement with the High Court that the advertisements impugned in the writ petition were not vitiated for want of provision for reservation. It is also pertinent to note that none of the respondents belong to the reserved category of Scheduled Castes or Scheduled Tribes or other Backward Classes. All of them are from the general category. Therefore, even otherwise they have no locus standi to raise the plea of reservation. 29.It was then contended by learned counsel for the respondents that under Section 10 of the Principal Act, vacancies are to be notified in respect of each year of recruitment and if the vacancies are clubbed together, the basic purpose of notifying the vacancies every year in terms of the said Section will get frustrated, which cannot be permitted in law. According to the learned counsel, since the vacancies have to be notified each year it would naturally mean that they are also to be filled up each year from amongst the eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said that Rule 11(2) (a) is in conflict with the provisions of Section 10(1) of the Principal Act, as is sought to be pleaded on behalf of the respondents. We have, therefore, no hesitation in endorsing the view taken by the High Court that the Board and the Management have not committed any error in clubbing vacancies which were existing on the date of selection. 31.It was then submitted by Dr. Padia that there was difference in the Hindi and English version of the notification given in Appendix D framed in terms of Rule 12(5) (i) of the 1998 Rules, on the basis whereof quality points were to be calculated. According to the learned counsel, in the Hindi version weightage to the percentage of marks in the high school, intermediate, graduate and post-graduate degree was in the ratio of 1,2,4 and 8 respectively whereas in the English version it was only 1,2,3 and 4. The submission was that in case the Hindi version was followed then maximum marks that could be awarded, as calculated in terms of Appendix D would be 174 and in case English version was to be followed then it would come to only 124. Further, the Board had scaled the said marks upto 300 by multiplying the quality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court in Radhey Shyam Singh Others, etc. Vs. Union of India Ors. (1997) 1 SCC 60, Nidamarti Maheshkumar Vs. State of Maharashtra and Ors. (1986) 2 SCC 534 and Minor P. Rajendran Vs. State of Madras Ors. AIR 1968 SC 1012 34.In our view, the said contention is also not well-founded. There is no warrant for accepting as a general proposition that a region wise or district wise selection is per se violative of equality clause enshrined in Articles 14 and 16 of the Constitution. It would be discriminatory only when the person, who alleges discrimination, demonstrates certain appreciable disadvantages, qua similarly situated persons, which he would not have faced but for the impugned State action. Therefore, the onus was on the writ petitioners to show by cogent material that by resorting to region wise selection, they were placed in some disadvantageous position as compared to their counterparts or that in this process merit was the casualty. 35.In the present case, neither Section 10 of the Principal Act nor any other statutory provision forbids regionwise selection. Besides, no restriction was imposed upon the candidates insofar as their choice for the regions was conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that by the aforementioned provisions of regularization incorporated in the Principal Act by the Amendment Acts of 1993 and 1991, all ad-hoc Principals, who were working on the date of enforcement of those Amendment Acts were regularized whereas in the instant case a gap of five years had been left between the cutoff date and the enforcement of the Amendment Act, which according to the learned counsel, is wholly unreasonable and arbitrary. It was then pleaded that the cutoff date of 6th August, 1993 deserves to be struck down and all Principals who were working on adhoc basis up to the date of enforcement of Section 33C are entitled to be regularized. 37.We are unable to persuade ourselves to agree with learned counsel for the respondents. Admittedly, Section 33C of the Principal Act was inserted with effect from 20th April, 1998 providing for the regularization of ad-hoc Principals who had been appointed by promotion on or after 31st July, 1988 but not later than 6th August, 1993, in accordance with Section 18 of the Principal Act, which pertained to ad-hoc appointments. Section 16 of the Principal Act which contemplates that all appointments will be made through the Sele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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