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TMI Blog2008 (5) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 Institutions were indicated regionwise. The candidates were to be considered regionwise and results were also to be declared regionwise. The candidates were required to give the choice of not more than three institutions in order of preference and if he wanted to be considered for any particular institution or institutions and not for other institutions he could mention this fact in the application. In addition to the candidates applying directly, the Board was also required to consider the names of two senior-most teachers of the Institution concerned. These two senior-most teachers were not required to apply but their names were to be forwarded by the management in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to law could not be permitted. Thus, the Division Bench came to the conclusion that the advertisement issued by the Board prescribing teaching experience of 4 years as Lecturer for the post of Principal of an Intermediate College was contrary to the statutory requirement of academic qualifications stipulated in Appendix A of Regulation 1 of Chapter II of Intermediate Act, as adopted by sub rule 5 of Rule 15 of the Rules and as a result thereof it was possible that many candidates having 4 years teaching experience of class IX and X could not apply, resulting in serious prejudice to them. Accordingly, the appeals were allowed and the selections made in pursuance of the said advertiseme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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, experience of teaching classes IX & X had been erroneously excluded in the impugned advertisements. It is pleaded that Rule 12 (5) of the 1998 Rules cannot have the effect of altering or modifying the conditions of qualifying experience mentioned in the Appendix of the said Regulations. 14. In order to appreciate the rival stands on the issue, it would be expedient to briefly notice the historical background of the statutory provisions relating to the selection of heads of educational institutions in the State of U.P. Prior to the enactment of the Principal Act, by U.P. Act No.5 of 1982, selections for the posts of Head of the educational institutions were made as per the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 otherwise, shall be as given in Appendix A. As per the said Appendix, the essential qualification for the post of head of the institution is as follows: "Essential Qualification S. No. Name of the post & educational training experience Age Desirable qualification 1 2 3 4 1. Head of the institution (1) Trained M.A. or M.Sc. or M.Com. or M.Sc. (Agri) or any equivalent postgraduate or any other degree which is awarded by corporate body specified in abovementioned para one and should have at least teaching experience of four years in classes 9 to 12 in any training institute or in any institution or University specified in above-mentioned para one or in any degree college affilia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 experience with maximum of 16 marks. Notes (1) - The teaching experience for this purpose shall be counted only for the recognized High School/Intermediate College(s) or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Headmaster and countersigned by the District Inspector of Schools or Zila Basic Shiksha Adhikari, as the case may be, with full name of the countersigning authority. (2) Any Wrong information submitted in this regard shall make the applications of such candidates liable to be rejected and for this the candidate himself shall be solely responsible. (5) The Board shall, in respect to the selection for the post of Headmaster and Principal, allot the marks in the following manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erit 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 institution whereas for the posts in the lecturers and trained graduates grade, it shall be prepared subject-wise and group-wise respectively, If two or more candidates obtain equal marks, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal then the name of the candidate who in 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 vacancies and for the post of teachers in the lecturers and trained graduates grade, it shall be larger (but not larger than twenty-five per cent) than the number of vacancies. ...... ..... ....." 19.As noted supra, Rule 5 of the 1998 Rules deals with academic qualifications for appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'Note' to sub rule (5) of Rule 12 of 1998 Rules prescribes the requirement of experience for the post, which is different from what is prescribed in the said Appendix A and, therefore, there being a conflict between the two provisions, in the teeth of Section 32, the said 'Note' shall have an overriding effect over Appendix A insofar as the question of experience is concerned. In this view of the matter, we are in agreement with the learned Single Judge that the impugned advertisements were in conformity with the said 'Note' and, therefore, the selection procedure could not be faulted on that score. We do not think that the contention of the writ petitioner that some persons who had essential qualifications had been excluded from consideration or any person who ought not to have been considered for the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses 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 finding recorded or issue decided against him is not given because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to Courts of superior jurisdiction. It was, thus, held that a person who has entirely succeeded before a Court or Tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words 'person aggrieved'. However, in an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted 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, which is not permissible in law. In support, reliance was placed on the decisions of this Court in Dr. Chakrdhar Paswan Vs. State of Bihar (1988) 2 SCC 214, Bhide Girls Educational Society Officer, ((1993) Suppl. 3 SCC 527) Ziaratisaad dillip moti bhide girls Educational faculty , (1995) Suppl. 1 SCC 157, PnG SI Association state of Chattopadhay (2004) 12 SCC 333 28. Having examined the issue in the light of the 1994 Act, Section 10 of the Principal Act and the settled position in law, we are of the view that the stand of the respondents is not well founded. Under Section 10 of the Principal Act, the management is required to intimate the number of vacancies to be filled by way of selection by direct recruitment. While doing so, the management is also required to intimate the number of vacancies to be reserved for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 eligible candidates available in respect of that recruitment year. Therefore, the person who became eligible subsequently could not be considered in respect of the vacancies occurring in respect of the earlier recruitment year. The stand of the learned counsel is that in the present recruitment, the Board wrongly clubbed all such vacancies by taking recourse to the second proviso to Rule 11(2) (a) of the 1998 Rules. Learned counsel asserts that in the light of clear provision of Section 10 of the Principal Act, the said Rule cannot be resorted to. 30.We do not find much substance in the contention. Section 2(l) of the Principal Act, as amended by the U.P. Secondary Service Commission and Selection Board (Amendment) Act, 1992 defines "year of recruitment" to mean a period of twelve months commencing from 1st day of July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 point marks of the candidate by 300/174 as the total marks out of which the merit was to be declared had been taken as 500 and 60 per cent of it came to 300. But this was down by following the Hindi version. The contention was that in case the English version was to be followed, the quality point marks had to be calculated after giving due weightage for graduate and post-graduate degree and also it was to be scaled upto 300 by multiplying the quality point marks of 300 by 124 and not by 174, which would result in some difference. Learned counsel contended that though the State Government had issued a corrigendum on 17th January, 2001 and the English version of the Appendix B, C and D of the Rules was corrected, the English translation of the corrigendum was published only on 31st January, 2001. According to the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey 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 concerned. An eligible candidate could apply in any of the regions and his application was to be considered in accordance with the Rules. It has neither been pleaded nor can it be held that the right of any eligible candidate to apply in a particular zone was curtailed or that an equal opportunity to compete had been denied to the respondents. It is not even the case of the respondents that a less meritorious candidate has been selected on account of region wise selection. The ratio of the decisions, relied upon by learned counsel for the respondents is not attracted to the facts of the present case. In the afore noted decisions, zone wise, district wise and unit wise allocation of seats and/or preparation of separate merit list for each zone in respect of candidates who appeared at the centres within the same zone were held to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Selection Board, was substituted by the 1993 Amendment Act and was enforced with effect from 7th August, 1993. It prohibited appointments of teachers and heads of the institutions, except on the recommendation of the Commission. However, by virtue of Section 1(2) of the 1993 Amendment Act, the date of enforcement of the Amendment Act was left to the State Government and it was by virtue of Notification dated 7th August, 1993 that the State Government prescribed 7th August, 1993 as the date on which the Amendment Act except Section 13 thereof was to come into force. Though Section 18 was reintroduced by the 1995 Amendment Act with certain conditions yet the Legislature fixed 6th August, 1993 as the cutoff date as the State Government had decided to make regular selections and steps in that behalf had already been initiated. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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