- (1.) R. K. Agrawal, J. All these special appeals have been filed against the judgment and order dated 14th February, 2001, passed by the learned Single Judge in Civil Misc. Writ Petition No. 31980 of 1998, Anand Narain Singh v. U. P. Secondary Education Services Selection Board, Allahabad and others, and other connected writ petitions, wherein challenge to the selection of the Head of Private High Schools (X Class) and Intermediate College (XII class) was made.
(2.) BRIEF facts are - Prior to the enactment of the U. P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as "the principal Act"), selection for the posts of Heads of the educational institutions and the teachers were governed by the provisions of the U. P. Intermediate Education Act, 1921 (hereinafter referred to as "the Intermediate Act" ). Under the Intermediate Act, as selection committee was constituted by the Committee of Management managing the institution. The appointment could be made only after the prior approval of the concerned District Inspector of Schools. After some time, the appointments were to be made on the basis of the recommendations made by the selection committee consisting of experts nominated by the educational authorities. Minimum qualifications for the Head and the teachers in an institution have been prescribed in Appendix A to Regulation 1 of Chapter II framed under the Intermediate Act. However, with the coming into force of the principal Act, selections were entrusted to a Commission in order to ensure that good candidates may be appointed Rules were framed by the State Government in the year 1983. However, the present selections have been held under the U. P. Secondary Education Service Commission and Selection Board Rules, 1998 (hereinafter referred to as "the Rules" ). The principal Act provided for setting up of a Commission for making appointment of the Head of an institution. In order to obviate the difficulty faced by the ad hoc teachers and the Principals/heads of the institution, who have been continuing on the post for a long time and to bring an end to ad hocism, amendments were made in the principal Act, firstly, in the year 1985 by which Section 31-A was inserted regularizing certain appointments. Another amendment was made in the principal Act in the year 1991, inserting Section 33-A regularizing some more and ad hoc appointments. It was enforced on 7th August, 1993. In the year 1993, by an amendment in the principal Act, constitution of four Regional Selection Boards was provided for making selections. It also introduced Section 33-B regularizing certain more ad hoc appointments. However, in the year 1995, by way of an amendment in the principal Act, which was enforced with effect from 28th December, 1994, the four Regional Selection Boards, established by the 1993 amendment, were abolished and one Commission for the entire State was provided. Again, in the year 1998, an amendment was made in the principal Act, which was enforced with effect from 20th April, 1998. Now, the selection process has been entrusted to the U. P. Secondary Education Service Board (hereinafter referred to as "the Board") in place of the Commission. It also inserted Section 33-C 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. The State Government framed the Rules which came into force on 8th August, 1998. The Board published advertisements on 12th August, 1998 and 24th December, 1999 inviting applications for direct recruitment to the posts of the teachers and the heads of the institution. The advertisement for the heads of the institution, unlike teachers, is regionwise. The candidates were to be considered regionwise and the results were also to be declared regionwise. Rule 12 of the Rules provides allocation of marks. Sub-rule (5) of Rule 12 provides the manner in which the Board shall allocate the marks in respect of the selection for the posts of the Headmasters and the Principals. It provides that 60% marks on the basis of quality point specified in Appendix D, 20% for having experience more than the required experience out of which 1 mark for each research paper published with a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks and 10% for having doctorate degree. However, in the note sub-rule (5) it has been provided that for the purpose of calculating experience, the service rendered as Headmaster of a Junior High School or as Assistant Teacher in a High School/intermediate College shall be counted in the case of selection of Headmaster and for the selection of Principal, the service rendered as Headmaster of a High School or as a Lecturer shall only be counted. It further provided that the provision of sub-rule (4) of Rule 12 regarding certificate of experience shall mutatis mutandis apply. The vacancies for the Heads of the institutions, i. e. , Headmasters and Principals, are filled by direct recruitment. Any candidate having the minimum qualification can apply. He has to indicate the choice of the institution. Apart from these candidates applying directly, the Board is also required to consider the name of the two seniormost teachers of the institution concerned. These two seniormost teachers need not apply but they are considered for that institution. But they can apply for other institutions. Writ petitions were filed by the persons who were working as ad hoc Principals and the seniormost teachers on the ground that the cut off date, i. e. 6th August, 1993, fixed by the 1998 amendment, for regularizing the ad hoc Principals/teachers is arbitrary, discriminatory and violative of Article 14 of the Constitution of India,1950. The further challenge is on the ground that the advertisements exclude the candidates entitled to be considered for selection and permits candidates not so entitled, as the advertisements were not in conformity with the Appendix A of Regulation 1 of Chapter II of the Regulations framed under the Intermediate Act. Another ground which was pressed for challenging the advertisements, was that the advertisement for the Heads of the institution, unlike the teachers, is regionwise and the declaration of the result is also regionwise, which is violative of Articles 14 and 16 of the Constitution. Validity of sub-rule (5) of Rule 12 was also challenged on the ground that it is unreasonable and discriminatory as it gives undue importance to educational qualifications and gives no importance to the service record. The manner of allocation of marks and the selection process were also challenged. Since the Act did not provide for any reservation for the post of the Head of the institution for backward class or scheduled caste or scheduled tribe candidates, the advertisement was also challenged on the ground of not providing for any reservation being contrary to the provisions and in violation of the U. P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and other Backward Class) Act, 1994 (hereinafter referred to as "the Reservation Act" ).
(3.) THE learned Single Judge formulated the following 15 points for determination : (i) Reservation for backward for backward classes is provided for the post of teachers but not for the post of heads of the institutions. Should there be reservation for the post of heads of the institutions? Do heads of institutions form one cadre? (ii) THE 1998-amendment Act has substituted new Section 33-C. It regularizes services of ad-hoc teachers and heads appointed not later than 6th August, 1993 (or prior to 7-8- 1993, the date of the 1993-amendment Act) on certain conditions. Is this cut off date arbitrary or discriminatory ? Is it liable to be struck down ? Should this cut off date be shifted to 20th April, 1998 the date of enforcement of the 1998 amendment Act? (iii) What is minimum qualification for appointment as a head of an institution ? Is it the one defined in Appendix A of the Intermediate Regulations or has it been modified by the note to the Rule 12 (5) Minimum qualification of experience prescribed in the two advertisements inviting applications are in conformity with note to the Rule 12 (5) but not with Appendix A of the Intermediate Regulations. Are these advertisements legal ? (iv) Should the vacancies be marked separately for every recruitment year and be filled separately ? (v) Which law should apply for filing up the vacancies the one applicable at the time of occurrence of vacancies; or the one applicable at the time of advertisement; or the one at the time of Selection. (vi) THE Board has taken the total marks to be allotted under different heads as 500 and has allocated 10% of the same namely 50 marks for interview. Was it permissible for the Board to begin with total of 500 marks ? Should the Board allot marks from 100 so that interview can only be of 10 marks ? (vii) Rule 12 (5) (ii) of the Rules states that 20% of marks are to be given for having experience more than the required experience. Does it give any importance to service record ? Is it illegal, as no importance has been given to service records ? (viii) THE Board has adopted different procedure for allotting 20% under Rule 12 (5) (ii) between the direct applicants and the two seniormost teachers. It has seen the service records of the two seniormost teachers, but not of the direct applicants. This has been done under the guidelines issued by the Board. Are these guidelines valid ? Was this procedure permissible ? (ix) Rule 12 (5) of the Rules explains how marks are to be allotted. 71% marks can be given on academic qualifications. Are they unreasonable on the ground that they give undue emphasis on academic qualifications ? (x) Rule 12 (4) explains how marks are to be allotted while selecting teachers allocates only 4% marks for doctorate degree in contrast to 10% marks or doctorate degree and further 4% marks for published research (total 14%) for the heads. Is Rule 12 (5) illegal on this account ? (xi) Many candidates have two post graduate degrees. Has the Board given benefit of two postgraduate degree to such candidates ? (xii) Selection for head of institution has been made regionwise. THE result is also so declared. Is it permissible to make selection regionwise ? (xiii) Rule 12 (5) (i) states that 60% marks are reserved on quality points to be calculated on the basis of Appendix D of the Rules. THE total marks were 500 and as such 300 marks could be allotted on quality points. THE maximum marks that can be allotted under Appendix D of the Rules are less than 300. Has the Board rightly upscaled the quality points marks to 300? (xiv) THE Rules have been framed in Hindi. THEir authoritative translation has also been published. At the time of selection, there was inconsistency between Appendixes of the two versions for calcutating quality point marks under Rule 12 (5) (i ). THE quality points marks have been allotted according to Hindi version. Was it correct ? Which version should have prevailed : the Hindi one or the English one ? (xv) During arguments of these writ petitions, the State Government notified a 'shudhi PATRA/corrigendum' dated 17- 1-2001 correcting the English version of Appendixes of the Rules. Now the English version is same as the Hindi one. Has the State Government power to do so ? Now, can the results be set aside ? So far as Point No. 1 is concerned, the learned Single Judge held that there is no illegality in not providing reservation on the post of head of the institutions as the State itself has treated each institution as different, providing reservation for teachers only. The heads of the institutions are neither in one cadre nor even so treated by the State Government. All heads of different institutions have different employers and are in different cadres. The State Government has rightly not provided any reservation amongst the heads. He further held that neither post of all the heads nor all posts of teachers in different institutions can be clubbed together. While holding so the learned Single Judge followed the Constitution Bench decision of the Hon'ble Supreme Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and others, 2000 (3) LBESR 572 (SC); (1998) 4 SCC 1.;