E. N. Misra, J. - (1.) IN this writ petition the petitioner has prayed for quashing of the selection/recommendation made by the U. P. Secondary Education Service Commission for the appointment of opposite party No. 3 Sri R. K. Agarwal on the post of Principal of Aminabad INtermediate College, Lucknow, which is run and managed by the Nagar Mahapalika, Lucknow, the opposite party No. 1. Briefly stated, the facts of the case are as follows.
(2.) IT has been averred in the writ petition that Sri H. S. Tandon was functioning as Principal of Aminabad Intermediate College, Lucknow (for short the College). He died on 19th November, 1981 and on his death the office of Principal fell vacant and the petitioner Sri Kedar Nath Awasthi, being the senior most lecturer of the College -was appointed as Principal by the Administrator, Nagar Mahapalika, Lucknow after due approval having been obtained from the District Inspector of Schools by order dated 3-12-1981. The petitioner is, thus, serving as Principal of the College over since then. However, the post for appointment to the Principal was advertised in news paper 'Swatantra Bharat' on 13th August, 1983, but the name of the institution was incorrectly indicated as Nagar Mahapalika Inter College, Aminabad, Lucknow. IT has been further averred that earlier to it, some times in the month of March, 1983, the Administrator, Nagar Mahapalika, Lucknow had written to the U. P. Secondary Education Service Commission, Allahabad (for short the Commission), which was establised under section 3 of the U. P. Act No. V of 1983 indicating that the petitioner being the senior most lecturer in the institution was promoted to the post of Principal of the College with effect from 3-12-1981 and since then he is functioning as such, a copy of which has been annexed as Annexure No. 1 to the writ petition, wherein it is mentioned that there is one post in L. T. Grade for teaching English subject on which Sri S. P. Singh for C. T. Grade, who is qualified for appointment on the post, is to be promoted and that two posts of L. T. Grade are being vacant on which appointment are to be made. Learned counsel for the petitioner had urged that the commission had not passed any order on the said letter of the Administrator, but a post for appointment of Principal was advertised on 13th August, 1983. He further pointed out that under Rule 4 of the Rules framed under the said Act, the management of the College was required to forward the names of two senior most teachers alongwith copies of their service records as also character rolls and such other records and particulars as the Commission may require in that behalf. IT was also pointed out that according to Rule 6 it was obligatory on the part of the Commission to have called for interview two senior most teachers of the institution whose names were forwarded by the management under clause (1) of Rule 4. In the instant case, however, neither the management of the institution had forwarded two names of the senior most teachers as was required to be done under subclause (1) of Rule 4 to the Commission for being considered for the appointment on the said advertised post, which according to the petitioner was wrongly advertised as it was not lying vacant, nor the Commissioner had called for interview the two senior most teachers of the institution, including the petitioner, who being the senior most lecturer was already working as Principal ever since 3-12-1981. This fact has been averred in para 12 of the petition that neither the petitioner, who was senior most lecturer and acting as Principal of the institution, nor the other senior lecturer next to him Sri Vishnu Narain Rastogi were called for interview. Learned counsel urged that the management as well as the Commission has, thus, violated the mandatory provisions of sub-clause (1) of Rule 4 and Rule 6, and, as such, the selection and recommendation made by the Commission of the name of opposite party no. 3 on the post of Principal of the College is per se illegal and void and deserves to be quashed. In the counter affidavit filed on behalf of opposite party No. 1 it has been averred that the petitioner was appointed as Principal of the College on ad hoc basis and as a time gap arrangement to be continued for six months only or less than that. It has been admitted that the petitioner has been the senior most lecturer in the institution and that is why he was given this ad hoc appointment till the person duly selected by the Commission is available. Later- on vide order dated 15-7-1982 the earlier order of appointment was modified to the extent that the period of six months was deleted and the appointment of the petitioner was to be treated purely temporary and was to be terminated as soon as the Commission was available to select/appoint a person on the post. The appointment could be terminated even earlier if deemed necessary. It has. been averred that the Commission held the selection for filling up the vacancy on the post of Principal on regular/permanent basis and Sri Ramesh Kumar Agarwal, opposite party No. 3 was selected for being appointed on the said post. And after receiving communication from the Commission to that effect, the District Inspector of Schools sent a D. O. No. SM (1)/15466-79 dated 13-3-1964 to the answering opposite party No. 1 communicating about the selection of Sri R. K. Agarwal to the post of Principal of the College in compliance with the provisions of Rule 8 (3) sub-rules (i), (ii), (iii), (iv) and (v) of the U. P. Intermediate Education Service Commission Rules (for short the Rules). In compliance of the said letter dated 13-3-1984 of the Inspector of Schools a letter of appointment was issued to Sri R. K. Agarwal appointing him on the post of Principal of the College on 21-5-1984, which has been annexed as Annexure A-2 to the counter affidavit filed by opposite party No. 3. Consequently the petitioner was reverted to his original substantive post of lecturer (English), but the operation of the aforesaid orders regarding appointment of opposite party No. 3 as Principal was stayed by an interim order of stay dated 24-3-1984. With regard to the question about the intimation of the vacancy of the post to the Commission consequent to the death of Sri H. S. Tandon, it has been averred that the Administrator vide letter dated 3-3-1983 had indicated the District Inspector of Schools, Lucknow about it. The District Inspector of Schools (for short the DIOS) through this letter was also intimated about the ad hoc appointment of the petitioner and the Administrator had also recommended that he may he appointed as Principal of the institution. The petitioner had also filled in the proforma giving details of his service which was sent to the DIOS along with said letter dated 3-3-1983. It has, however, not been averred in the counter affidavit dated 12-7-1984 nor in the supplementary affidavit dated 14-9-1984 that the Management, as was required to be done under Rule 4 (1) (ii), had forwarded the names of two senior most teachers alongwith copies of their service records-including character rolls for being considered for the appointment on the post in question. It has, however, been averred in para 8 of the counter affidavit that the DIOS had sent a letter dated 28-1-1984 to opposite party No. 1 intimating that the Commission was going to bold the selection for the post of Principal of the institution under reference and the deponent of the counter affidavit, who Is the dealing clerk in the Department of Education in Nagar Mahapalika, Lucknow, was required to send to the Commission the applications of two senior most teachers of the institution for participation in the said selection along with the seniority list and their service record and confidential character roll etc. It has been averred that a copy of this letter was endorsed to and was received by the petitioner also in his capacity as officiating Principal. It is said that the petitioner was thereupon communicated with the copy of the letter and proforma application with the request to submit, the same alongwith other necessary details to the Commission, but the petitioner refused to fill up the form or to participate in the selection as he thought that he was not required to undergo the selection and he considered himself to have been appointed on the post on regular basis. The second senior most teacher, namely, Sri B. N. Rastogi, was also directed to fill up the form, but he also declined to do so. The DIOS was informed about the refusal of the petitioner to fill up the form or to submit an application to the Commission vide letter dated 30-1-1984 alongwith the reply of the petitioner. It has further been argued that the seniority list, qualification and service record of the petitioner including his character roll entries were duly sent to the Commission for its consideration through DIOS, Lucknow even though the petitioner bad refused to fill up the application form.
(3.) IN reply to the contention of the petitioner that the Commission had not called the petitioner for an interview nor had considered the candidature of the petitioner as a teacher candidate for the appointment on the post in question as is required under the Rules and Regulations framed under the Act, it has been averred in para 9 of the counter affidavit that the contents of paragraphs No. 11 and 12 of the writ petition are based on mis-reading and interpretation of Rule 6 of the Rules ; hence the same were denied as advised. We, thus, find that the averment of the petitioner to the effect that the petitioner was not issued any interview call letter has not been specifically denied. It has, however, been averred that even if the Commission was under an obligation to call for interview the senior most teachers under the said Rules, the said requirement was fulfilled by the Commission. It is averred that the petitioner had received information through letter dated 21-1-84 from the office of the DIOS that the petitioner was called upon to appear for interview on 4-2-1984. If the petitioner chose not to appear before the interview he is to blame himself for the same. IN the supplementary affidavit filed by Sri U. C. Agarwal, Sahayak Nagar Adhikari on behalf of opposite party No. 1 it has been averred that the petitioner and Sri B. N. Rastogi were called by him to his office on receiving letter dated 28-1-1984 (Annexure A-6) from the DIOS and had directed them to appear before the U. P. Education Service Commission on 4-2-1984 at Allahabad for interview as was desired in the said letter by the DIOS. It is, however, not disputed that nothing was given in writing to the petitioner or to Sri B. N. Rastogi in that behalf so that they could, on the basis of any such direction given in writing, appear before the INterview Board, which is said to have held interview on 4-2-1984 only of external candidates for the appointment on the post IN question. It has, however, not been disputed that the Commission itself had not issued any call letter to the petitioner or to Sri B. N. Rastogi requiring them to appear for interview held on 4-2-1984. Having heard learned counsel for the parties at some length and perusing the averments contained in the writ petition as well as in the counter, rejoinder and supplementary affidavits, we find that two crucial questions crop up for consideration. Firstly it has to be determined whether the management had forwarded the names of two senior most teachers of the College for being considered for appointment on the post in question or not. The stand taken by the management in this regard is that the petitioner and Sri B. N. Rastogi were required to submit duly filled in proforma application for the appointment on the post in question in order to enable the Administrator, Nagar Mahapalika, Lucknow, to send the same to the Commission alongwith the other necessary details, but the petitioner refused to fill-up the form or to participate in the selection to be made by the Commission asserting that he was not required to undergo the selection as he considered himself to have been duly appointed on the post in question on regular basis, and, as such, the petitioner cannot raise that question. Learned counsel, however, further asserted that in spite of it, the relevant information and documents namely, seniority list, qualification and service record of the petitioner including his character roll entries were sent to the Commission for its consideration through DIOS even though the petitioner had refused to fill-up the application form. It is, thus, to be seen whether by doing so the management made compliance of the provisions of Rule 4 (1) (ii) of the Rules or not, which is extracted below :- " 4 (1) (ii) In regard to the post of head of an institution, the Management shall also forward, mutatis mutandis in the manner hereinafter specified, the names of two senior most teachers, copies of their service records (including character rolls, and such other record or particulars as the Commission may require from time to time. ";