G. P. Mathur, J. - (1.) THE dispute relating to appointment on the post of Principal of Kishori Raman Girls College, Mathura gave rise to seven writ petitions and five of them were decided by a common order by the learned Single Judge, Special Appeals No. 780/93, 781/93 and 782/93 filed by the Committee of Management, Special Appeal no. 816 of 93 and Writ Petitions No. 25142/89 and 41368/92 filed by ad-hoc/officiating Principal Dr. Radha Agarwal are being disposed of by a common order at the admission stage, after hearing learned counsel for the parties,
(2.) IT is not necessary to give the facts in detail as they have been mentioned in the judgment of learned- Single Judge Suffice it to say that on the retirement of permanent Principal Smt. Gayatri Rawat in the year 1981, the vacancy was notified and U. P. Secondary Education Service Commission (hereinafter referred to as the Commission) after following the prescribed procedure forwarded a panel consisting of (I) Smt. Kusum Srivastava (2) Smt. N. A. Zubairi and (3) Smt. Radha Tripathi, in that order to the Education Authorities on January 19, 1984. The name of Smt. Kusum Srivatava, who tood at SI. No. 1 was intimated to the management of the college under section 11 (3) of the U. P. Secondacy Education Services Commission and Selection Boards Act (hereinafter referred to as the Act) and an appointment letter was issued in her favour on February 24, 1984. Smt. Kusum Srivastava joined as Principal on February 25 but died on March 2, 1984. On the application of Smt. N. A. Zubairi, whose name appeared at SI. No. 2 of the panel, the Regional Inspectress of Girls Colleges Agra, passed an order on March 12, 1984 directing the management to issue an appointment letter in her favour. Subsequently, a similar direction was issued by the Regional Dy. Director of Education, Agra, on March, 16, 1985. The Committee of Management then filed writ petition No. 632 of 1985 for quashing the aforesaid orders and it is this petition which has been treated to be the leading petition by learned Single Judge as the fate of other petitioners depends upon the decision in this petition. Shri Janardan Sahai, learned counsel for the Committee of Management (Management) after referring to the provisions of section ...9, 10 and 11 of the Act as well as Rule 2 (hh) of the U. P. Secondary Education Services Commission Rules, 1983 (hereinafter referred to as the Rules) has submitted that once a candidate recommemded by the Commission joins the post, the panel exhausts and if a vacancy occurs subsequently as a result of death of the incumbent, the same has to be notified again and the Commission has to make a fresh selection. According to the learned counsel, education authorities cannot refer back to the earlier panel as it ceases to be operative and therefore, after the death of Smt. Kusum Srivastava the Services Commission had to advertise the vacancy again and hold fresh selection. Learned counsel has elaborated his argument by placing reliance on Union of India v. Sankal Chand AIR 1977 SC 2328 (para-106) where it has been observed that the appointment means an initial entry into service for the first time and submitted that in view of sub-section (5) of Section-11 of the Act, the panel forwarded by the Commission can be utilised again only if the candidate whose name had been intimated by the education authorities has failed to join the post or such a candidate is otherwise not available for appointment. It has thus been submitted that as Smt. Kusum Srivastava had joined as principal on February 25, 1984 it is not a case where a candidate has failed to join the post or is otherwise not available for appointment and thus the necessary conditions for utilising the earlier panel did not exist. Therefore the orders dated March, 12, 1984 of R. I. G. S. and March 16, 1985 of Regional Dy. Director of Education directing the management to issue appointment letter in favour of Smt. N. A. Zubairi, whose name was at SI. No. 2 in the original panel, is illegal and contrary to the provisions of the Act. Shri Ashok Khare appearing for Dr. Radha Agrawal has submitted that Rule-4 (1) (ii) provides that at the time of intimation of vacancy on the post of Head of an Institution to the Commission, the management has to forward the names of two seniormost teachers- and when the vacancy was notified at the initial, stage the names of Smt Kusum Srivastava and Smt. Nirmal Saxena who were the two senior most teachers were forwarded. If the vacancy was notified again the name of Smt. Radha Agarwal will also be forwarded as she is now amongst two senior most teachers of the institution. He has further submitted that methodology of awarding marks to in-college teachers (two senior most teachers of the college) and that of outsider in the interview held by the Commission is different and the chances of Smt Radha Agarwal being selected for the post of Principal now are better than what they were at the time of earlier selection as then she would not have come in the category of in college teachers. According to the learned counsel the earlier panel cannot be utilised as a candidate out of the panel had actually the post and the education authorities, by directing the management to appoint Smt. N. A. Zubairi, have deprived Smt. Radha Agarwal of her chance to compete and get selected for the post of Principal of the College.
(3.) SHRI D. P. Singh appearing for Smt. N. A. Zubairi has submitted that there is no statutory provision providing for exhaustion of a panel in the event of joining by a candidate and the only limitation put upon a panel by the statute is that it shall hold good for one year from the date of its notification by the commission in view of the Rule 7 (2) of the Rules. He has further submitted that as Smt Kusum Srivastava died within five days from the date of her joining on the post of Principal it should be deemed that the candidate was not available for appointment within the meaning of sub-section (5) of Section-11 of the Act and therefore, the education authorities were fully within their right in intimating a fresh name from the panel forwarded by the Commission. The statement of Objects and Reasons for enacting U. P. Secondary Education Service Commission and Selection Boards Act, 1982 recites that the appointment of teachers in Secondary Institution recognised by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and Regulations made thereunder. It was felt that the selection of the teachers under the provisions of the the said Act and the Regulation was some time not free and fair besides the field of the selection was also very much restricted. This adversely affected the availability of suitable teachers and the standard of education. It was, therefore, considered necessary to constitute Secondary Education Services Commission at the State level to select the Principals, Lecturers and teachers for such institution. It is, therefore, clear that the basic object of the Act is to select a qualified and best available person in order to improve the academic standard of the institutions in the State. The State Legislature has also enacted U. P. High School and Intermediate College (Payment of Salaries of teaches and other employees) Act, 1971 to regulate payment of salarises to teachers of the institutions receiving aid out of State Funds Section-3 of this Act provides that the salary of a teacher shall be paid without deductions of any kind and Section-5 ensures the payment of full salary to a teacher by crediting the amount in his account which is to be opened in a scheduled or a Cooperative bank. It is common knowledge that almost the entire salary of teachers of an aided recognised institution run by private management is paid by the State Government. The service conditions of teachers in such College is also regulated by the provisions of U. P. Intermediate Education Act and also U. P. Secondary Education Services Commission and Selection Boards Act. It has come on the record that the permanent Principal Smt. Gayatri Rawat retired in 1981 and the Commission took nearly three years in forwarding the panel for filling in the vacancy so caused. Sitting in this jurisdiction, we have come across cases where the Commission has not been able to recommend a panel for as long as 5-6 years. There is no denying of the fact that the Commission is in fact taking several years to recommend a panel. It is also a fact that Smt Kusum Srivastava died within five days of her joining as Principal of the institution and that the name of Smt. N. A. Zubairi finds place at SI. No. 2 in the panel which was recommended by the Commission for making appointment on the post of Principal of the institution. It is in this back-ground that we have to consider the contentions raised by the parties.;