Disposed

Silver Moon Knox v. State of U.P. through Secy. Intermediate Edu and Others

Allahabad HC2 Dec 2019SPLA/644/2010

Case brief

AI extract

What is this about?

In this special appeal regarding an appointment as Principal, the High Court examined if the appellant satisfied minimum qualification requirements under U.P. Intermediate Education Act Regulations. The court found the appellant lacked requisite experience but did not interfere with the impugned order, while directing salary and benefits saved.

What did the court decide?

Special appeal dismissed. Appointment upheld. Appellant to retain salary and retirement benefits received while functioning as Principal improperly.

Silver Moon Knox Vs State of U.P. through… — Pension and Retirement Benefits | Allahabad HC (2019)

¶1

[1]

¶2

Court No. - 4

¶3

Case :- SPECIAL APPEAL No. - 644 of 2010

¶4

Appellant :- Silver Moon Knox Respondent :- State Of U.P. Through Secy. Intermediate Edu And Others Counsel for Appellant :- N.C. Tripathi,Ashok Khare Counsel for Respondent :- C.S.C.,A.D.Saunders,R.K. Mishra,R.P. Tiwari,Rahul Jain

¶5

Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.

¶6

Heard Sri N.C. Tripathi, learned Counsel for the appellant and Sri Arvind Kumar, learned Additional Chief Standing Counsel for the respondent

¶7

The appellant was appointed as a Principal in Christian Inter College, Jhansi, which is a minority institution after following the procedure prescribed under Regulation 16-FF of the U.P. Intermediate Education Act, 1921 (hereinafter called as "Act"). The appellant's appointment was approved by the respondent no.2, Deputy Director of Education, Jhansi Division, Jhansi by order dated 2.12.1997. It appears that appellant's appointment as Principal in the College, was challenged by Vinod Kumar Paul, who had faced the selection process but not selected, by filing Writ Petition No.42115 of 1997, which was disposed of by this Court by order dated 17.1.2006 giving opportunity to the said Vinod Kumar Paul to file representation before respondent no.2.

¶8

The aforesaid order was challenged by the said Vinod Kumar Paul by filing Special Appeal No.175 of 2006, which was dismissed by the Special Appellate Court by order dated 28.2.2006. Thereafter, it appears that Vinod Kumar Paul filed a representation before the Deputy Direction of Education, Jhansi, and when the same remained pending, he filed a Contempt Petition No. 2660 of 2007 after his retirement, which was

¶9

[2]

¶10

finally disposed of by order dated 31.7.2007 with a direction to the respondent no.2 to decide his representation.

¶11

Thereafter, notice was issued to the appellant to appear before the respondent no.2, in response whereof, he appeared before him and demanded the copy of representation filed by the said Vinod Kumar Paul, which was, according to the appellant, not provided to him neither he was given any opportunity to file documents in support of his case. Thereafter, respondent no.2 by order dated 28.11.2007 recalled the approval granted by him to the appellant's appointment as Principal. The order dated 28.11.2007 was challenged by the appellant in Writ A No.61374 of 2007, which was admitted and an interim order was passed in favour of the appellant on 28.12.2007, by which the appellant was permitted to continue to function as Principal. During pendency of the aforesaid writ petition, Vinod Kumar Paul, who was arrayed as respondent no.5 in this appeal, died on 27.12.2007 and his name was deleted from the array of parties by order dated 4.12.2008. However, in January, 2008, wife of Vinod Kumar Paul, in this appeal, moved an application with a prayer that she may be impleaded as respondent no.5 in place of her husband, which was allowed on 9.9.2009. The learned Single Judge after considering the submissions made by learned Counsel for the parties and perusing the record dismissed the writ petition No.61374 of 2007 holding as hereunder:-

¶12

"Therefore, the appointment of the petitioner to the post of Principal has rightly been held illegal by the respondent no. 2 as the petitioner fails to satisfy the requirement of minimum qualification prescribed in the statute. The order impugned in the writ petition with respect the violation of Section 16-E, as already discussed, is not correct but since the other part of the order is being upheld, I find no reason to interfere."

¶13

Learned Counsel for the appellant has submitted that the view taken by the learned Single Single Judge that the appellant did not possess the

¶14

[3]

¶15

requisite qualifications for being appointed as Principal of the College is per se illegal and cannot be sustained.

¶16

Per contra, learned Standing Counsel appearing for respondent nos.1 to 3 made his submissions in pursuant to the impugned order.

¶17

We have heard learned Counsel for the parties and perused the judgment and the other material brought on record.

¶18

Paragraphs 8 to 27 of the impugned judgment which contain the discussion and reason for which, the learned Single Judge found that the appellant cannot be said to possess the requisite minimum qualification for the appointment to the post of Secondary Institution are being reproduced hereasunder:-

¶19

“8.Coming to the first question, according to the averments made by the petitioner himself, in para 17 to 20 of the Writ Petition, he obtained M.A. degree in Sociology in the year 1979, in Political Science in the year 1981 and in English in the year 1990. He also obtained degree of Bachelor of Education from Kanpur University in the year 1972. He claim to have been appointed as Assistant Teacher in St. Mark's College, Jhansi in January 1973 where he worked till January 1984. The St. Mark's College is recognised by Delhi Board awarding certificate of ICSE for High School and ISC for Intermediate students and was imparting education to the students from Class 6th to 12th. The said College was not receiving any grant. The certificate dated 15.4.1997, said to have been issued by Sri S.B. Lall, Principal, St. Mark's Inter College, has been placed on record as Annexure 6 to the writ petition. He was appointed as Assistant Teacher (C.T. Grade) in the College with effect from 7.1.1984. He claim that being qualified he was allowed to teach senior classes, i.e. 9th to 12th in the subject "Biology" and Classes 9th and 10th in the Subject "Chemistry" since very beginning and thereafter in the subjects of English since 1991 till he was appointed as Principal. In this regard he also claim to have been issued a certificate by the Principal of the College on 28.6.1996 and 12.4.1997 filed as Annexures 7 and 8 to the writ petition. It is, thus, contended that the petitioner did possess the requisite qualification prescribed for the post of Principal and the respondent no. 2 has erred in law by holding that the petitioner lack minimum qualification for appointment to the post of Principal in the College.

¶20

[4]

¶21

9.The qualification prescribed for appointment to the post of Principal of secondary institution is provided in Appendix 'A' to the Regulations and reads as under :

¶22

"Essential qualifications

¶23

Sl. No.	Name post	of the	Educational Training Experience	_Age _	Desirab le Qualifi cation
1		2	3	4	5
			(1) Should be a trained M.A. or M.Sc. or M.Com or M.Sc. (Ag.) or any equivalent post-graduate or other degree which is conferred by any body as referred to in above mentioned para and should possess teaching experience from any training institution recognised by the department or any degree college affiliated with any University or institution or any degree College affiliated with such institution as referred to in above-mentioned first para or at least four years teaching experience in classes 9-12 in any institution recognised by Board or in any institution affiliated with the Boards of other States or alike institutions, whose examinations are recognised by Board, or should possess at least four years' experience as trained graduate Headmaster in any Junior High Schools recognised by Deptt.: Provided that he/she should not be less than thirty years of age. Or (2) Teaching experience of Ten years in Intermediate classes of any recognised institution with first or second class post graduate degree, or third class post graduate degree, with 15 years' teaching experience.

¶24

[5]

¶25

Or (3) Post graduate diploma holder in Science; provided that he has passed this diploma course in first or second class and has served meritoriously for 15 or 20 years respectively in any recognised institution after passing such diploma course.
Note-
(1) At least second class post graduate degree and on special teaching experience of 10 years in intermediate classes of recognised institutions, training eligibility of Asstt. Teachers may be relaxed (As per the provisions in the Act).
(2) Teaching prior to training or after training or both, are included in teaching experience.
(3) Higher classes mean classes classes 9-12 and teaching experience of these
classes is admissible for the post of
principal in Intermediate College."

¶26

10.There is no dispute with respect to the academic qualification. The issue is confined only whether the petitioner possess the requisite experience of four years teaching of Classes 9th to 12th. The Counsels for the parties do not dispute that this case is covered by Item-1 in Column 3 of the Schedule and Items 2 and 3 are not applicable in this case.

¶27

11.The teaching experience has been further explained in Note 2 and 3 of Appendix 'A' which provides that the teaching experience before training and after training both are included.

¶28

12.Learned Standing Counsel submits that it is not the mere certificate of experience issued by the Principal of the College but it has to be seen in the light of the facts as to whether the

¶29

[6]

¶30

petitioner was holding an office in discharge of duties whereof he got the said experience otherwise even if a person is not appointed with a clear status, if he can obtain a certificate that he was taking classes of 9th to 12th, he would claim to be qualified for appointment to the post of Principal and that would defeat the very object and purpose of prescribing this experience as requisite minimum qualification for appointment to the post of Principal. It is submitted that admittedly the petitioner was appointed as Assistant Teaching (C.T. Grade) and in that capacity, he was not supposed to take higher classes, i.e., 9th to 12th. For the first time, he completed ten years of service in C.T. Grade in the year 1994 and in view of the Government Order dated 28.2.1990 was promoted in L.T. grade in the year 1994. Hence, for the purpose of experience, teaching higher Classes in the earlier period can neither be accepted nor otherwise be taken into note in law.

¶31

13.It appears that the respondents' case is that the teaching experience contemplated in Item 1 Column 3 Appendix 'A' Regulation 1 of Chapter II of the Regulations, in respect to the post of Principal, must have been attained after appointment to the post of Assistant Teacher (L.T. Grade) while case of the petitioner is that since no specific kind of teaching experience has been referred in the Regulations, therefore, if the petitioner has actually taught students of Classes 9th to 12th that would satisfy the requirement of the qualification with respect to teaching experience of four years and the respondents cannot insist upon that the petitioner ought to have been appointed on a post whereupon he would have been entitled to take Classes 9th to 12th. The counsel for petitioner contended that this amounts to reading certain words in the statute which are not there.

¶32

14.Regulation 1 Chapter II Appendix 'A' of the Regulations with respect to qualification of the Head of the Institution and in particular the teaching experience has come up for consideration before this Court earlier also and it would be appropriate first to have a glance over the said authorities whether they answer the dispute up for consideration in the case in hand or not. In case, the matter is covered by the earlier judgments of this Court, it would not be necessary to go further in the matter.

¶33

15. The first judgment sought to be relied by the petitioner is Committee of Management, B.D. Bajoria Inter College, City and District Shaharanpur & others Vs. Director of Education (Secondary), U.P. Lucknow & others (2000) 1 UPLBEC 46. Therein, the respondents no. 5, whose appointment on the post of Principal was under challenge had more than four years experience of teaching in Class 9th to 12th though his appointment was on ad hoc but then it was said that the Regulations does not talk of gaining experience only in a permanent capacity and not in an ad hoc capacity therefore it would not be prudent to ignore teaching experience gained by a person though after getting his appointment on ad hoc basis as that would satisfy the requirement

¶34

[7]

¶35

of law under Appendix 'A' Regulation 1 Chapter II of the Regulations. The Court held that wherever such was the requirement of law, it has been made specific in the statute for example Regulation 6 Chapter II of the Regulations. The above judgment may help the petitioner only to the extent that when the statute does not talk of something specifically, it would not be necessary to infer something but in the case of Committee of Management, B.D. Bajoria Inter College (supra) the incumbent was actually appointed on the post in question for the purpose of gaining experience, may be on ad hoc basis, though in the case of the petitioner, he was appointed as Assistant Teaching (C.T. Grade) whereof he could not have taught higher classes but despite that having obtained a certificate from Principal, the petitioner claims that he was permitted to take higher classes and that would suffice and satisfy the requirement of four years teaching experience of higher classes. In my view, this judgment does not answer the question up for consideration in the case in hand.

¶36

16.Next case is a Division Bench decision in Dr. U.S. Sinha Vs. State of U.P. & others (2008) 1 UPLBEC 673 challenging the selection of one Dr. P.C. Saxena as Principal of a State Medical College. In para 12 of the judgment, the Court observed that Dr. P.C. Saxena was appointed on the post of Professor and his continuance on the post of Professor and receiving salary on the said post till the date of selection was never challenged by anybody. In view of this finding, the Court found that he did possess the requirement of ten years teaching experience as Professor as provided in the statute. The above judgment, therefore, in my view also does not help to answer the issue raised in the present case.

¶37

17.Then comes the decision in State of M.P. Vs. Laxmishankar Mishra AIR 1979 SC 979. Rule 3 (b) providing for absorption shows that one should have worked on the post for a minimum period of seven years in the same institution and should have ten years teaching experience in any recognised institution of Madhya Pradesh. The issue raised before the Apex Court was whether working on the post for a minimum period of seven years in any capacity, whether officiating or as in-charge would be sufficient to satisfy the said requirement or one should be a confirmed or substantive appointee. The Apex Court held that "On a pure grammatical construction of the expression "should have worked on the post for a minimum period of 7 years in the same institution" it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years. Emphasis is on the experience gained by working on the post of Head Master/Principal. A person incharge of the post also works and discharges the duties and functions of the post of which he has taken charge. Even an

¶38

[8]

¶39

officiating incumbent of the post does discharge the functions and duties of the post."

¶40

18. I have no reason to take any exception of the above view taken by the Apex Court but again the obstruction in the case in hand is that the petitioner was not appointed as Assistant Teacher (L.T. Grade) in any capacity whatsoever but what he claims that since he was allowed or required or permitted to teach students of Classes 9th to 12th, though he was appointed as Assistant Teacher (C.T. Grade), and, in that capacity could not have discharged the said function, yet, since he was required to do so and a certificate in this regard has been issued by the Principal, therefore, he should be deemed to have satisfied the requirement of four years teaching experience under the statute. In my view, this judgment also lends no assistance to the petitioner.

¶41

19.Similar is the position in Asim Kumar Bose Vs Union of India AIR 1983 SC 509 wherein also the question was whether it is the actual teaching experience of the Specialist or the capacity in which such teaching experience is gained. The incumbent therein also held the post of Radiologist as a matter of fact and it is in this context and the factual background, the Apex Court in para 29 held as under :

¶42

"29. It is necessary to emphasise that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex-officio designation. As the statutory rules do not provide that the teaching experience gained in an ex-officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the appellant while holding the post of Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor of Radiology in Maulana Azad Medical College."

¶43

20.In my view, even this judgment does not help the petitioner in any manner.

¶44

21.Learned counsel for the petitioner also placed before this Court the judgment in Smt. Bharati Roy Vs. Deputy Director of Education, II, Kanpur & others 2008 (3) AWC 2310; Vipin Kumar Vs. District Inspector of Schools, Muzaffarnagar & others (1993) 3 UPLBEC 1800 and Brahm Dutt Tripathi Vs. State of U.P. & others (2005) 2 UPLBEC 1713. However, the said judgments are also inapplicable to the dispute involved in the case in hand inasmuch as in Smt. Bharati Roy (supra) and Vipin Kumar (supra) the question was whether grant of L.T. Grade pursuant to Government Order dated 28.2.1990 would amount to promotion in

¶45

[9]

¶46

L.T. Grade or not and this Court negatived the above contention holding that the grant of L.T. Grade after rendering ten years of service in C.T. Grade or Lecturer's Grade after rendering a particular length of service in L.T. Grade would not amount to promotion to the post of Lecturer or Assistant Teacher (L.T. Grade) since grant of a higher scale does not amount to promotion on the higher post.

¶47

22.Brahm Dutt Tripathi (supra) is a judgment where the relevant cut of date for the purpose of qualification was considered and that is also not the issue in this matter.

¶48

23.One of the nearest judgment, in my view, is Shri Prakash Dwivedi Vs. State of U.P. & others (Civil Misc. Writ Petition No. 43309 of 2003) decided on 10.4.2007 by a Division Bench of this Court (in which I was also a member) wherein this Court has considered Rule 8 of U.P. Educational (General Education Cadre) Service Rules, 1992 and one of the essential qualification prescribed therein was at least three years experience in teaching Intermediate or higher classes necessary for appointment to the post of Principal. The question as to what would be the relevant teaching experience which would qualify for appointment came up for consideration before the Apex Court in Mohammad Altaf & others Vs. Public Service Commission & another in Special Appeal No. 961-962 of 1999 decided on 20.2.2002 and thereafter the matter was again taken up by this Court in Contempt Petition No. 372 of 2002 (Shamim Khanam Vs. K.P. Pandey & others) and these facts and observations of the Apex Court have been noted by this Court in Sri Prakash Dwivedi (supra) in para 8 of the judgment as under :

¶49

"This issue was agitated in a writ petition before this Court and ultimately came to be considered by Apex Court in Civil Appeal No. 961-962 of 1999 Mohd. Altaf and Ors. v. Public Service Commission and Anr. Decided on 20.2.2002 wherein the Apex Court held that in view of the Regulations framed by the State Government, the three years experience in higher classes would be from Classes IX to XII and experience of teaching of these classes is admissible for the purpose of Headmaster of Intermediate Colleges. Consequently, it directed the Commissioner to examine the cases of all the candidates in the light of the various documents submitted by them and take appropriate decision regarding their eligibility. There appeared to be some confusion and the matter again attracted the attention of the Apex Court in Contempt Petition No. 372 of 2002 Shamim Khanam v. K.B. Pandey and Ors. decided on 28.11.2002 when the position was clarified with respect to the candidates who may be considered eligible as under :

¶50

1. All candidates who were called for interview and whose, names are on the merit list shall be appointed in order of merit if they (a) possess; requisite educational qualification and;

¶51

[10]

¶52

(b) have 3 years teaching experience working as a full time teachers and paid regularly monthly salary not less than Rs. 1400/-

¶53

2. Part time teachers would be excluded from consideration. However, it is made clear that there, cannot be a class of exclusion of teachers who are working in self-financed institutions. Any exclusion of a candidate on the basis that he or she is a part time teacher must be made only in individual cases after proper verification.

¶54

3. Prima facie the certificate provided by the candidate which is duly certified by the designated authority shall be taken as final unless there are reasons for not doing so. However, before rejecting such certificate, a reasoned order in writing shall be passed after giving proper opportunity of hearing to the candidate concerned.

¶55

4. Appointment however would be made against available posts either in general category or reserved category as the case may be subject to verification of reserved category candidates. 5. A Candidates who have already been appointed on the basis of the merit list prepared in 1996-1997 will not be disturbed or displaced."

¶56

24.This Court observed that in view of the Apex Court's decision, only those candidates who could be considered to possess requisite qualification are the one who have three years experience working as full time teacher and paid regular monthly salary for the said purpose.

¶57

25.Coming to the regulation applicable in the case in hand, the experience contemplated in Item 1 Column 3 Appendix A is in three forms as under :

¶58

1.Teaching experience from any training institution recognised by the department.

¶59

2.Four years teaching experience in Classes 9th to 10th in any Institution recognised by Board or in any institution affiliated with Board of other State of alike institutions whose examinations are recognised by the Board.

¶60

3.Four years service experience as trained graduate Head Master.

¶61

26.It is true that specifically regulation does not mention as to in what manner the experience must have been gained by an incumbent except to the extent of the kind of institution from which it has to be obtained but one thing is clear that from the reference of various kinds of institutions in the Regulation it does appear that it contemplates those institutions where the appointments of teachers are made in accordance with proper scheme and not those institutions which allow a persons to impart education to the students in an ad hoc, stopgap manner by inviting persons like guest teachers or part time teachers etc. and without any appointment to the concerned post. The capacity in which one is

¶62

[11]

¶63

appointed in order to impart education or to teach classes 9th to 12th though is not specifically mentioned but in the scheme of the things it cannot be said that someone who has simply taken one or two classes without having any right to teach by virtue of his status of appointment, can also claim the same as valid experience to be counted in the Regulation. Besides, the experience alongwith a particular period would mean that this experience must have been gained by a person as a full time employee and not in an ancillary or incidental manner. From the facts given by the petitioner it is evident that before 1979 he was only a graduate with Teachers Training Qualification of B.Ed. With the above qualification he could not have been appointed as a teacher for teaching the students of secondary classes, i.e., classes 9th to 12th. He has not placed on record his letter of appointment in St. Mark's College, Jhansi to show in what capacity he was appointed, if any, and what was the job requirement which was to be performed by him. The general certificate issued by the Principal on 15.4.1997 stating that he worked as Assistant teacher from January 1973 to January 1984 for senior classes from the face of it cannot be accepted and relied for the reason that as per his own showing, the petitioner was not qualified to take higher secondary classes upto 1979 inasmuch he passed M.A. (Sociology) in 1979. Besides, the certificate also does not mention the subject in which he was required to teach the students of senior classes inasmuch his first post graduation was in Sociology in 1979, then in Political Science in 1981 and he passed M.A in English only in 1990. The respondents, therefore, have rightly ignored the above certificate and I find no fault therein.

¶64

27.Now coming to the certificate issued by the Principal of the College on 28.6.1996, it says that he was teaching Biology and Science in the High School since he joined and English in Intermediate classes since 1991. Suffice is to mention that once it is admitted that the petitioner was appointed in the College as Assistant Teacher (C.T. Grade), under the Regulations he was entitled to teach the students of Classes 6th, 7th and 8th only. If in addition to his duties as Assistant Teacher (C.T. Grade), the Principal of the College unauthorisedly also permitted him to take Classes of Biology or Science in High School, that would not be treated as four years teaching experience of Classes 9th to 12th inasmuch the term of four years teaching experience in any case would cover a full time experience and employment to impart education to the students of Classes 9th to 12th. It would not admit a part time or incidental experience, may be of taking one or two classes in addition to normal duties in the junior classes or even by taking private tuition. So far as the further certificate that he was taking Intermediate classes since 1991, again the same thing would apply. As a matter of fact, the petitioner could get promotion on the post of Assistant Teacher (L.T. Grade) as admitted by him only in the year 1994 and not earlier thereto. Hence, in my view, the petitioner cannot be said to possess the

¶65

[12]

¶66

requisite minimum qualification for appointment to the post of Principal in a secondary institution. The order impugned in the writ petition holding the petitioner as lacking requisite qualification for appointment to the post of Principal, therefore, cannot be faulted.”

¶67

Having heard learned Counsel for the parties, we find that the view taken by the learned Single Judge that the appellant did not possess the necessary qualifications for the post of Principal of Intermediate College does not appear from any illegality or legal infirmity requiring any interference, we therefore, refuse to interfere in the impugned order. However since the petitioner has been allowed to work on the post of the Principal in the College in pursuance of the interim order granted by the Writ Court, we are of the view that the salary received by the appellant while working as Principal in the College and retiral benefits, if any, provided to him shall not be recovered.

¶68

Subject to the aforesaid observations, the appeal stands disposed of.

¶69

Order Date :- 2.12.2019 S. Singh

Silver Moon Knox v. State of U.P. through Secy. Intermediate Edu and Others

Case brief

What is this about?

What did the court decide?

Silver Moon Knox v. State of U.P. through Secy. Intermediate Edu and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Prem Kishore Vs Smt. Nirmala Devi and 2 Others

Shiksha Prasar Samitee, Beni Madhav Chavan Ji Maharaj Maha Vidyalaya Degree College and Another Vs State of U.P. and 02 Others

Prakash Chandra Gupta Vs State of U.P. and 3 Others

Gaya Prasad Vs Phool Kali

Bhagwati Prasad Vs Director of Social Welfare Deptt. U.P. Lucknow and Anohter

Nand Lal Vs Smt. Rani Devi