S K KUSHWAHA Vs. D K JOSHI
SUPREME COURT OF INDIA (FROM: PUNJAB & HARYANA)
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(1.)The appellant in C.A. No. 6048/2000 who was working as a Lecturer in Art and Crafts in the University of College of Education, Kurukshetra, for considerable time applied for the post of Principal pursuant to the advertisement No. 10 of 1995 issued by Kurukshetra University. It appears that this advertisement is the fourth in the series since 1990. No candidate was selected on the earlier occasions. The appellant and the 1st respondent in the said appeal who was Lecturer in English in the same college, were called for the interview. The Establishment Committee which interviewed candidates, recommended the appointment of the appellant. The recommendation was accepted by the Executive Council on 10-1-1997 and the appellant was appointed as Principal in January 1997. About one year later, the 1st respondent in CA No. 6048 of 2000 filed C.W.P. No. 351/98 questioning the selection and appointment of the appellant on the ground of not having the requisite qualification for the post of Principal and sought for direction not to confirm him in that post. This was preceded by a representation filed a few days earlier by the 1st respondent to the University. The said Writ Petition was disposed of by Punjab and Haryana High Court on 12-1-1998 directing the representation of the 1st respondent to be considered by passing a speaking order before confirming the appellant. By a communication dated 3-9-1998 addressed to the 1st respondent herein, the University communicated the factum of rejection of the representation and the grounds of rejection. The last para of the letter dated 3-9-1998 reads as follows :
"Dr. Kushwaha was M.A. in First Division. No doubt he did not possess the qualification of M.Ed. but in view of the resolution of the Executive Council this qualification was relaxable and accordingly he was considered and selected by the Establishment Committee by relaxing the qualification of M.Ed. Therefore, the plea of Dr. Joshi that he did not possess the qualification laid down in the advertisement is wrong as his case was covered under relaxation clause as passed by the Executive Council in its meeting held on 22-9-1993. Therefore, the representation of Dr. Joshi has no merits and be rejected."
Thereafter another Writ Petition-CWP No. 1082 of 1999 was filed by the first respondent praying for an order quashing the decision of the Executive Council dated 22-9-1993 by which relaxation of qualification of M.Ed./B.Ed. was granted to the appellant and for quashing the communication dated 3-9-1998 by which his representation was rejected. A further direction was sought for to re-advertise the post of Principal by quashing the appointment of the appellant. The judgment rendered in this CWP has given rise to these appeals filed by the appointee-Dr. Kushwaha and the University.
(2.)The High Court held that the appellant herein did not possess the essential qualification of M.Ed. or B.Ed. in terms of the advertisement and it was not open to the Executive Council to relax that qualification as it had no such power. Adverting to the resolution of the Executive Council dated 22-9-1993, the High Court commended that the said Resolution had no relevance to the advertisement issued in the year 1995. The High Court, therefore, set aside the selection and appointment of the 3rd respondent as Principal and directed a fresh advertisment to fill up the post in accordance with law. The appellant was directed to vacate the post forthwith. However, he has been continuing in office till date in view of the interim order passed by this Court and the consequential decision taken by the University.
(3.)We have, therefore, to consider the crucial question whether B.Ed. or M.Ed. qualification, as the case may be, is an essential and indispensable requirement for selection to the post of Principal of University College of Education.
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