- (1.) THE petitioner was appointed in February, 1980 as lecturer in Mechanical Engineering in Chandauli Polytechnic, Chandauli (in brief institution ). THE institution is receiving granted-in-aid from the State Government and the payment of salary to the principal and teaching staff is made from the Government fund. THE institution is governed by the provisions of U. P. Government Private Aided Technical Education Institutions Regulations, 1996 (in brief Regulations ). THE permanent principal of the Institution retired on 30-6-1997. A substantive vacancy on the post of Principal came into existence. THE petitioner was appointed as officiating principal of the institution from 11-11-1999 to 30-5-2003. THE selection committee issued an advertisement on 15-2-2002 for selection for the post of principal. However, no selection proceedings could be held.
(2.) ANOTHER advertisement dated 20-5-2004 was issued for appointment of Principal in Chandauli Polytechnic, Chandauli. The petitioner alongwith six others applied in pursuance to the said advertisement. The selection committee prepared a panel and recommended the name of respondent No. 5 at serial No. 1 and that of petitioner at serial No. 2 to the Director, Technical Education, U. P. , Kanpur (in brief Director ). The Director on 27-10-2004 held that the recommendation of selection committee with regard to Respondent No. 5 Sri Radhey Shyam Singh could not be approved as the experience shown by him has not been properly verified by the selection committee. By another order dated 5-3-2005 the Director held that on the date of advertisement i. e. 20-5-2004 the respondent No. 5 was aged about 52 years though the maximum age for the post of Principal was 50 years. Sri Radhey Shyam Singh was found to be over age. The selection committee had calculated the age of respondent No. 5 from 15-2-2002, the date when the first advertisement was issued which was illegal, therefore, the appointment of respondent No. 5 was not approved. The Director also quashed the selection process initiated by respondent No. 4 and directed that a fresh advertisement be issued for selection on the post of Principal. In this writ petition the petitioner has challenged the order dated 5-3-2005 of the Director by which he has cancelled the entire selection proceedings for the post of principal and has directed for re-advertisement of the vacancy. The petitioner has prayed that he may be granted appointment on the post of principal in pursuance to the recommendations of the selection committee dated 5-10-2004. We have heard Sri Ashok Khare, learned senior Counsel assisted by Sri Aditya Kumar Singh, Advocate appearing for the petitioner and learned Standing Counsel appearing for respondents No. 1 to 3. Sri D. K. Srivastava, Advocate has filed his vakalatnama on behalf of respondent No. 5. He is not present though the matter has been taken up in the revised list and his name has also been printed in the cause list. Service of notice on respondent No. 4 has been deemed to be sufficient by order dated 25-1-2006 under the Rules of the Court. Sri Ashok Khare, learned Counsel for the petitioner has urged that since a panel of two names was sent, as per Regulation 14 (6) of the Regulations if the candidate recommended at serial No. 1 was found to be ineligible then the second person recommended in the panel namely, the petitioner was entitled to be considered for appointment, but the Director has illegally set aside the entire selection and directed for fresh advertisement. The Standing Counsel has supported the impugned order relying on the counter-affidavit filed by him. Regulation 14 (6) of the Regulations is extracted below :
(3.) IT is not disputed by the respondents that the select list was prepared in accordance with Regulation 14. In paragraphs 3 and 8 of the counter-affidavit it has been stated that since there was only one vacancy for the post of principal, only one name was required to be recommended by the selection committee as sending of second name would be in excess of 25% of the vacancy as provided by Regulation 14 (6 ). The last line of Regulation 14 (6) is important. IT provides that in the select list names will be recommended in excess of the vacancy, but it should not exceed more than 25%. Regulation 14 (6) applies to the selection of both principal and teachers. In case of principals as there would always be only one vacancy and as per the aforesaid regulation names have to be recommended more than the number of vacancy as per the Regulations which would mean at least two names. The bar created by Regulations that the recommendation should not be made in excess of 25% of the vacancies, would apply, in our opinion, in case of teachers where more than one teachers are to be appointed, in such a case the panel of names should not be in excess of 25% of the vacancies. There is another reason, which has persuaded us to take the view that for the post of principal at least two names should be recommended as per Regulation 14 (6 ). As seen in this case regular selection to the post of principal of the polytechnic has not been made for more than seven years. The selection committee has recommended two names. The first name was of respondent No. 5 who had been found by the Director to be over age. Therefore, the second recommended person by the selection committee in the panel of selected candidates was required to be considered. In case we uphold the order of Director then it would result in re-advertisement of the vacancy and unnecessary expenses would be involved in making the advertisement which would further delay the appointment of a regular principal. Further, since Regulation 14 (6) clearly states that the select list will contain the recommendation more than the number of vacancy, the intention of the Regulation making authority appears to be that there should be panel of names. If the intention was that only one name for the post of principal should be recommended then it would have been clearly provided in Regulation 14 (6 ). The Regulation has to be interpreted in such a manner that it advances the purpose for which it had been framed. Therefore, we hold that panel of at least two names for the post of principal is required to be sent by the selection committee so that if the candidate at serial No. 1 is found ineligible or he does not join then the second candidate could be offered appointment. From the perusal of records as well as the counter-affidavit, we do not find that any finding has been recorded by the Director that the selection made by the selection committee in recommending the panel of names any illegality or mal-practice was committed by the selection committee. We are of the opinion that the Director was not justified in setting aside the entire selection process initiated by respondent No. 4 and directing for fresh advertisement for appointment on the post of principal. The Director is required to consider the claim of the petitioner who was at serial No. 2 in the panel for appointment on the post of principal, Chandauli Polytechnic, Chandauli as the candidate at serial No. 1 in the panel had been found over age and ineligible for appointment.;