VIVEK MUDGIL versus STATE OF U.P. & ORS. on 5 December 2018

1068 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 1068

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VIVEK MUDGIL

v.

STATE OF U.P. & ORS.

(Civil Appeal No. 11863-11864 of 2018 etc.)

BDECEMBER 05, 2018

[L. NAGESWARA RAO AND R. SUBHASH REDDY, JJ.]

Service Law:

Appointment – To the post of Principal – Qualification –CRequirement of 10 years teaching experience – Appointment ofappellant – Complaint questioning the appointment as the appellantwas only having teaching experience of 9 years 3 months –Appointment cancelled – Writ petition by the appellant on the groundthat the period of his study leave should be computed for the purposeof computing the teaching experience of 10 years – Single JudgeDof High Court dismissed the petition – Special appeals, taking theplea that qualification of 10 years teaching experience cannot beregarded as essential qualification in view of power conferred onthe Board under Proviso to s. 16-E(3) of 1921 Act – Division Benchof High Court dismissed the appeal – Appeal to Supreme Court –ENotice issued by order dated 8.7.2015 – In view of the order dated8.7.2015 Board exempted the qualification in favour of the appellant– Exemption order challenged in High Court by way of writ petition– The petition is transferred to Supreme Court – Held: Teachingexperience of 10 years was rightly considered as a necessaryqualification – Appellant was having only 9 years 3 months ofFteaching experience on the last date of submitting the applications– His study leave period cannot be considered as a teachingexperience – When the matter was seized before the Court,respondent-Authorities should not have passed any order grantingexemption – It is clear from order dated 8.7.2015 that there was noGdirection to consider for grant of exemption – However, theexemption order was not given retrospective effect – Therefore, grantof exemption would also not cure the disqualification – UttarPradesh Secondary Education Services Selection Board Rules,1998 – Intermediate Education Act, 1921.

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Dismissing the appeals, the Court

HELD : 1. It is not in dispute that as on the last date ofsubmission of applications pursuant to the advertisement issuedby the Board inviting applications for appointment to the post ofPrincipal, the appellant herein was having only 9 years 3 monthsof teaching experience. Even as per the notification, havingregard to academic qualification possessed by the appellant, therewas a requirement of 10 years of teaching experience. Mainlythe writ petitions were filed in the High Court alleging that hisperiod of foreign study leave is to be computed for the purposeof computing the teaching experience of 10 years. It is not indispute that from 15.04.1992 to 08.03.1996 he was studying inCzechoslovakia and same cannot be considered as a teachingexperience. Further, having regard to the requirements in theRegulations, teaching experience of 10 years is rightly consideredas a necessary qualification by the Division Bench of the HighCourt. [Para 9][1072-D-H]

2.1 It is pleaded that in view of the exemption granted heis entitled to continue as Principal of the college. Such anexemption is granted in view of the order passed by this Courton 08.07.2015. It is clear from the order dated 8.7.2015 thatthere was no direction at all to consider for grant of exemption.By all fairness, when the matter is seized before this Court,respondent-authorities should not have passed any order grantingexemption in favour of the appellant. In any event, from theperusal of the order, it is clear that no retrospective effect isgiven to such exemption proceedings. Even by grant of suchexemption it will not cure the disqualification of the appellant ason last date of submission of the applications and on the date ofpreparing the panel. [Paras 10 and 11][1073-A-B; 1073-D-F]

2.2 Having regard to the notified required qualificationsunder the Regulations, such qualification of 10 years of teachingexperience is necessary qualification for appointment to the postof Principal. [Para 11][1073-G-H]

3. However, the issue, whether the respondent-authoritiesare empowered to grant any order of exemption in exercise ofpowers under proviso to Section 16-E(3) of the 1921 Act, afterenforcement of the provisions of the 1982 Act is left open.[Para 12][1074-A-B]

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ACIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11863-64 of 2018.

From the Judgment and Order dated 08.04.2015 of the High Courtof Judicature at Allahabad in Special Appeal Nos. 189 and 190 of 2015.

With

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T. C. (C) No. 5 of 2018

Aishwarya Bhati, AAG, Abhishek Krishna, Danish Zubair Khan,Ms. S. Janani, Sarvesh Singh Baghel, M. R. Shamshad, Ms. Shruti Bist,Ms. Purnima Jauhari, Dr. Brij Bhushan K. Jauhari, Harsh Mohan,CAjit Singh Pundir, Ms. Abha R. Sharma, Ms. Garima Prashad,Abhishel Sharma, Dr. Monika Gusain, Tanmaya Agarwal, Advs. for theappearing parties.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

D1. Application seeking impleadment of the applicants is allowedas prayed for.

2. Leave granted in Special Leave Petitions.

3. These civil appeals are filed by the appellant aggrieved by theEorder dated 08.04.2015 passed by the High Court of Judicature atAllahabad in Special Appeal Nos.189 and 190 of 2015. By the aforesaidorder, the Division Bench of the High Court has confirmed the orderdated 19.03.2015 passed by the learned Single Judge in writ petitionsfiled under Article 226 of the Constitution of India in which an orderdated 10.12.2008 passed by the U.P. Secondary Education ServicesFSelection Board (hereinafter referred to as ‘the Board’) was underchallenge.

4. The Board has issued an advertisement on 03.03.2002 invitingapplications for appointment to the post of Principal. The last date forsubmission of applications was 30.03.2002. The qualifications prescribedGwere – (i) the possession of a Post Graduate degree from an institutionor a university established in accordance with law; and (ii) possession ofa training qualification, namely, B.Ed. L.T., B.T. and B.P.Ed. Theadvertisement contained a stipulation requiring teaching experience often years in intermediate classes of any recognised institution together H

with a post graduate degree in the first or second class or a teachingexperience of fifteen years for a candidate possessing post graduatedegree in the third class.

5. The appellant herein was originally appointed as Lecturer inPhysics and his services were regularised from 12.01.1990. He was onstudy leave for the period between 15.04.1992 to 08.03.1996. It is not indispute that on the last date of submission of the applications, pursuantto advertisement issued by the Board, the experience of the appellantwas 9 years and 3 months as against the requirement of 10 years. Initiallythe Board prepared a panel of selected candidates in the month of August2002, which contained the name of the appellant herein. In view of thelitigation concerning selection of panels, the said panel was not operatedfor the purpose of issuing appointment orders. Only after orders arepassed by this Court in the month of May 2008, the panel prepared in theyear 2002 was operated and the appellant was appointed as the Principalof the college and he joined as such on 15.07.2008. On 18.07.2008, acomplaint was lodged before the District Inspector of Schools, Jhansialleging that appellant did not possess 10 years of teaching experienceand same was mandatory for selection to the post of Principal as perU.P. Secondary Education Services Selection Board Rules 1998 readwith Regulation 1 of Chapter II of the Regulations framed under theIntermediate Education Act 1921. In view of such complaint, on theground that appellant herein has not fulfilled required qualification of 10years’ experience, his appointment was cancelled on 10.12.2008, whichorder was subject matter of challenge in the writ petition filed by theappellant herein before the High Court of Allahabad. The learned SingleJudge has dismissed the writ petitions by order dated 19.03.2015 byholding that, the period during which the appellant was on study leavecannot be counted towards teaching experience and on the last date ofsubmission of applications, the appellant did not fulfill the required eligibilitycriterion, i.e., possessing ten years of teaching experience. The learnedSingle Judge, by recording a finding that the appointment could not beprotected under Article 226 of the Constitution of India, rejected thepetitions.

6. Said order was challenged by way of Special Appeal beingS.A.Nos.189 and 190 of 2015 mainly on the ground that possession of10 years of experience cannot be regarded as an essential qualificationin view of the power conferred on the Board under proviso to Section A

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A16-E(3) of the 1921 Act. The Division Bench of the High Court, rejectingthe plea of the appellant herein, dismissed the Special Appeals by recordinga finding that after enforcement of the U.P. Secondary Education ServicesSelection Board Act, 1982 the requirement of 10 years’ teachingexperience is a necessary qualification and is mandatory.

B7. During the pendency of the proceedings, the Board has issuedexemption proceedings in favour of the appellant granting exemption of9 months of teaching experience. As pleaded in the counter affidavit it isstated that such an exemption order was passed in view of the orderdated 08.07.2015 passed by this Court in Special Leave Petitions. Whenorder of exemption is passed, such order was again challenged by wayCof writ petition before the High Court which is ordered to be transferredto this Court and on such transfer the same is numbered as TransferredCase (C)No.5 of 2018 which is also taken up for hearing along withthese civil appeals. For the sake of convenience, the facts of the civilappeals are being referred to.

D8. We have heard learned counsel on both sides appearing in civilappeals as well as in transferred case and perused the material on record.

9. It is not in dispute that as on the last date of submission ofapplications pursuant to the advertisement issued by the Board invitingapplications for appointment to the post of Principal, the appellant hereinEwas having only 9 years 3 months of teaching experience. Even as perthe notification, having regard to academic qualification possessed bythe appellant, there was a requirement of 10 years of teaching experience.It is not in dispute that the appellant had only 9 years 3 months of teachingexperience on the last date of making applications. Mainly the writFpetitions were filed in the High Court alleging that his period of foreignstudy leave is to be computed for the purpose of computing the teachingexperience of 10 years. It was the case before the High Court that as hewas granted leave as per the leave rules and he was also grantedincrements for the said period, as such, such period has to be computed.It is to be noticed at this stage that he was granted scholarship for higherGstudies in Czechoslovakia. It is not in dispute that from 15.04.1992 to08.03.1996 he was studying in Czechoslovakia and same cannot beconsidered as a teaching experience. Further, having regard to therequirements in the Regulations teaching experience of 10 years is rightlyconsidered as a necessary qualification by the Division Bench of theHHigh Court.

10. Before this Court, it is pleaded that in view of the exemptiongranted he is entitled to continue as Principal of the college. We havealso perused the order of exemption which is granted during the pendencyof the proceedings. It is stated in the counter affidavit, such an exemptionis granted in view of the order passed by this Court on 08.07.2015. Theorder dated 08.07.2015 passed by this Court reads as under :

“The contention of the petitioner is that the petitioner wasworking as Lecturer in another college when he was selected asprincipal in Respondent No.5-College in the year 2002 and wherehe worked till 2008. He submits that in order to join the serviceswith respondent No.5 as Principal to which post he was selected,he resigned as Lecturer where he was serving earlier and afterhis termination as Principal, the petitioner is left high and dry ashe is not working anywhere now.

Issue notice to the respondents on the limited aspect as to howthis situation can be salvaged, if at all.”

11. It is clear from the aforesaid order that there was no directionat all to consider for grant of exemption. By all fairness, when thematter is seized before this Court respondent-authorities should not havepassed any order granting exemption in favour of the appellant. In anyevent, from the perusal of the order, it is clear that no retrospectiveeffect is given to such exemption proceedings. Even by grant of suchexemption it will not cure the disqualification of the appellant as on lastdate of submission of the applications and on the date of preparing thepanel. In the absence of any such express provision grantingretrospective effect, even the exemption granted will not come to therescue of the appellant to support his case. It is also pleaded that afterthe enforcement of the provisions of the U.P. Secondary EducationServices Selection Board Act 1982, the power of exemption is also notavailable but the same is not required to be considered at this stage aswe are of the view that exemption granted also will not come to therescue of the appellant to make his selection and appointment valid.Having regard to the notified required qualifications under the Regulations,we are in agreement with the view taken by the Division Bench of theHigh Court that such qualification of 10 years of teaching experience isnecessary qualification for appointment to the post of Principal. Althoughit is pleaded by learned counsel appearing for the respondents that the A

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1074 SUPREME COURT REPORTS [2018] 14 S.C.R.

Apower of exemption is not available after enactment of the provisions of1982 Act but in view of the reasoning assigned by us as referred above,it is not necessary to record any finding on such issue at this stage.

12. For the aforesaid reasons, these appeals are dismissed andconsequently the transferred case also stands disposed of. However,Bthe issue, whether the respondent-authorities are empowered to grantany order of exemption in exercise of powers under proviso to Section16-E(3) of the 1921 Act, after enforcement of the provisions of the 1982Act is left open. If any such need arises, it is open for the parties toapproach the High Court in which event such issue is to be decidedindependently uninfluenced by the order of the High Court and this Court.

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Kalpana K. Tripathy

Appeals dismissed.

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