S.K.Singh, J. - (1.) These are three writ petitions by which one and the same order of the District Inspector of Schools has been challenged. For the purpose of convenience, Writ Petition No. 22838 of 2001 is being taken as the leading case and that will govern other two writ petitions.
(2.) In district Allahabad, there is an intermediate college known as Majidia Islamia Intermediate College (hereinafter referred to as the college). The aforesaid college is Government aided and is a minority institution. On account of retirement of the existing staff, vacancy on the post of Assistant Teacher in L.T. grade for various subjects came into existence for which in pursuance of the advertisement, petitioners covered by these three writ petitions claim to have been selected. By the order impugned in this petition dated 4.4.2001, approval to the petitioners' appointment have been refused. After receipt of the order of the District Inspector of Schools, management appears to have made a representation pointing out the incorrectness in the order but that has also been rejected by order dated 18/22.5.2001 which is under challenge in these petitions.
(3.) There appears to be no dispute about the fact that the college in question is a minority institution. The scope of screening regarding appointment in the minority institution is limited. It is to be examined that whether the appointees are possessed with requisite qualification and whether there has been due advertisement before making the selection. In these cases, one of main objection which appears to have been taken in the order of the D.I.O.S. as well as in the counter-affidavit is that advertisement has been published before the vacancy came into existence, of course in Writ Petition No. 22838 of 2001 in respect to petitioner No. 2 in the counter-affidavit, there is an objection about the lack of his requisite qualification. Learned counsel for the petitioners submits that due information was given to the D.I.O.S. well in advance about the vacancies which were to come into existence. After due information to the D.I.O.S., the vacancies were advertised. Learned counsel submits that undoubtedly advertisement was published on the date on which the vacancies were not in existence but at the same time, there is also no dispute that the selection process, i.e., the date of interview was fixed after coming into existence of the vacancies. It has been pointed out that advertisement is just an offer and invitation to the candidates to apply and that has nothing to do with coming into existence of the vacancies on a particular date. If a candidate is willing, he is to apply in pursuance of the advertisement subject to his interview and further process. As the interview has taken place much after the vacancies came into existence, learned counsel for the petitioners submits that it cannot be said to be an irregular process vitiating the selection, if otherwise valid on the merits. It has been further submitted that on the fact of the present case, it cannot be said that the management, in order to extend undue benefit to the petitioners, in a slip shod manner or by making advertisement in the newspaper having no circulation have created such an atmosphere that meritorious candidates may not appear. In the present case, it has been pointed out that the advertisement has been published in three daily newspapers, i.e., Rashtriya Sahara (Urdu), Amar Ujala (Hindi) and Northern India Patrika (English). Copies of the advertisements have been brought on the record as Annexure-3 to the writ petition. It has been argued that in view of proper advertisement in widely circulated newspapers, no fault in the selection process having been pointed out by the D.I.O.S., order passed by him, refusing to give approval cannot be sustained. It has been further submitted that as within the required time of one month, disapproval was not communicated and, therefore, in view of the Explanation as provided in Regulation 17 (G), the approval to the petitioners' selection will be deemed to have been accorded. It is further submitted that the D.I.O.S. has taken arbitrary and discriminatory stand, as in pursuance of the same advertisement published in the aforesaid three newspapers other selections of the teachers in the primary section has been approved by the D.I.O.S. by letter dated 20.12.2000 and therefore, petitioners were also entitled to get same treatment. Lastly, it has been submitted that by mentioning various facts in the counter-affidavit and by advancing various kinds of submissions by the learned standing counsel during the course of the arguments they cannot be permitted to justify the impugned order as respondents cannot be permitted to supplement the impugned order by giving fresh reason in the shape of affidavit or otherwise. In this connection learned counsel for the petitioners has placed reliance on the decision given in Mohinder Singh Gill and Ors. v. Chief Election Commissioner, New Delhi and Ors., AIR 1978 SC 851 and decision in Surya Kumar Dixit v. D.I.O.S., Jalaun and Ors., 1992 (19) ALR 230. The principle in this connection as has been laid down in para 12 of the judgment in Surya Kumar Dixit (supra), can be thus quoted : "The learned standing counsel has tried to justify the order for two additional reasons, which have not been taken into consideration by D.I.O.S. while passing the order of cancellation of approval. As stated earlier, he has tried to justify, the order on the ground that the order of approval was passed due to collusion of a Clerk as well as the order being a "farzi" order. These reasons are absolutely new reasons and they are not the basis of the order of D.I.O.S. by which the D.I.O.S. has cancelled the approval and, therefore, the respondents cannot be allowed to justify the impugned order by taking new additional reasons in present writ petition for justifying impugned order. The above view finds support from the case of Mohinder Singh Gill v. Election Commissioner, wherein it has been held that "when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise". As I am of the view that respondents cannot be allowed to justify the impugned order to be valid on the grounds not taken by the D.I.O.S., I am not inclined to consider said plea on merit in deciding the present writ petition.";