A critical assessment of the Judgement Dated 29.9.2003 passed in Special Appeal No.

159 of 2001, Anand Narayan Singh vs. U.P. Secondary Education Service Selection Board, Allahabad and others.
That before examining the merit of the contentions raised in present case pertaining to the cancellation of the result of the selection of the principal of intermediate college by U.P. secondary Education Service Selection board in privately managed institution, in its correct prospective, which according to the legal opinion and interpretation of law has not been dealt with properly, while setting aside the selections. Some of the crucial question are required to be examined . The aforesaid selections were made pursuant to the advertisement issued by U.P. Secondary Education Service Selection Board, Allahabad for appointment on the post of the principal according to the provision of Rule 12 (5) (7) of the Rules of 1998; and most of the principals have actually Joined in pursuance of the said selection . Thereby affecting the large number of the lecturers duly selected and recommended on the post of the principals to the different Intermediate colleges. Thus some of the silent features are required to be assessed in the aforesaid Judgement. Admittedly, there has been a preliminary objections raised by the State Government as to the maintainability and regarding the locus standi of the Writ Petitioners/ appellants to approach the Honble Court and to challenge the advertisement and the selections made by the U.P. Secondary Education Service Selection Board, Allahabad. Admittedly the appellant have appeared in the interview held by the Board and having been unsuccessful, they have filed the Writ Petition and thereafter the Special Appeal against the judgement reported in 2001 (2) UPBBEC 959 were filed. It was submitted that once a candidate taking a chance before the board at the time of selection, it is not open to him to challenge the selections proceeding and to challenge the advertisement. 1)Balak Singh Kushwaha vs. State of U.P. and others, 1998 (3) ESC 1970 (ALLD.).) 2)Madan Lal and others vs. State of J&K and others, (1995) 3 SCC 486.) 3)Om Prakash Shukla vs. Akhilesh Kumar Shukla and others, 1986 (Supp.) SCC 285.) 4)Union of India and others vs. N. Chandrashekaran and others (1998)3 SCC 694.) The Honble Court, while upholding the contentions of appellant regarding their locus standi to meet out their preliminary objection, has set up the contentions of the appellants that since the virus of Section-33 (c) of the Principal Act ( U.P. Secondary Education Service Selection Board, Act 1982) is challenged, the Writ Petition are maintainable. The reliance has been placed on the following Judgements. 1) Raj Kumar and others Vs Shakti Raj and others (1997)9 SCC 527 2) Deepak Sibal Vs Punjab University and another AIR !989 SC903 3) Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and others AIR1998 SC1021 4) Income Tax Officer Alleooey Vs IMC Ponnose AIR1970 SC 385 While relying upon the following Judgement dated 29.9.2003 passed in Special Appeal No. 159 of 2001, Anand Narayan Singh vs. U.P. Secondary Education Service Selection Board, Allahabad and others has held that even though the appellant had appeared in interview for the post of the principal and remained unsuccessful but since the virus of Section 33 (c)of Principal Act has been challenged, the Writ Petion Were Maintainable. This Honble Court relying upon the Judgement of Honble Supreme Court, in West Bangal electricity regulatory Commission vs. CESC Ltd. (2002) 8 SCC 715, and thus rejected the preliminary objections. Surprisingly enough after going through the entire Judgement the Honble Court up held the virus of 33 (c) of the Principal Act but still than the entire selection and the proceedings the pursuance of the advertisement regarding selections of the candidate for the post of the principal of an Intermediate College are set aside in the Special Appeal No 159 of 2001 by judgement dated 29.9.2003 . With due respect to the majesty of Honble Court, there is no hesitation to submit that an irreparable injuries has been casted to the candidate duly selected and recommended by the selection Board, who without being impleaded as the respondents in the writ petition have been deprived of their right in gross violation of the principle of natural justice in the judicial proceedings undertaken before this Honble court by the unsuccessful candidate of the said selections. The very out set regarding the merit of the judgement delivered on 29.9.2003 in Special Appeal No. 159 of 2001, it is submitted with due respect that qualification prescribed in Appendix-A of Intermediate Education Act at far with the provision of chapter II(1) are the of Intermediate Act, the qualification under Section 16-E of the Intermediate Education Act. The title embodied in reference to regulation 1 of Chapter II is the minimum qualification for appointment of Head master and teachers in private recognised Higher Secondary School, which were published vide notification No-MA/18238/15-7-1976-2(18)-1975 dated 9th Dec. 1976 published in extra ordinary gazette9.12.1976. By looking in to such qualification firstly the Head Master (Pradhan Adhyapak) is different than the principal (Pradhan Acharya). The connotations Pradhan Adhyapak is in itself suggestive of the fact that, Head Master is selected from amongst the assistant L.T. Grade Teacher, while the principal is selected from amongst the lecturer being the head amongst lecturers. Thus in view of the aforesaid analogy being taking in t consideration Section 32 of the U.P. Secondary Education Service And Selection Board Act 1882 are relevant regarding the applicability of Intermediate Education Act 1921. Once the distinction between the two post that is Head Master and the Principal is taken in to consideration, Appendix-A of regulation 1 of Chapter-II has to be examine from the aforesaid angle. Section 16-E has been inserted by U.P. Act No. 35 of 1958 it has been substituted by section 14 of U.P. Secondary Education Laws Amendment Act, 1975 (U.P. Act No.26/1975) proviso of section 16-E has been inserted by section 18 of U.P. Act No. XII of 1978 Section 16-E only contemplates direct appointment to the post of Head of the institutions or teachers except to the extend prescribed for being filled by promotion under the U.P. Secondary Education Laws (Amendment) Act 1975 (U. P. Act No. 26 of 1976). According to G.O. Nor 1959 / 15-08-3031-1973 dated 5/4/1975, the education qualification for the teaching staff shall be the same which are prescribed by the Board. Section 22 of the aforesaid Act provided removal of difficulties order 1976 vide notification No. MA/1870/XV (7)-76 (2)/18 dated 27 Nov.1976, wherein the definition clause , while the definition of Act means the Intermediate Education Act 1921 but the definition of a teacher means not being the Head of the institution of a recognize Intermediate College ,Higher Secondary School or High School. Thus the qualification prescribed under Appendix A in reference to regulation 1 of Chapter II are the qualification of Head Master of High School and Higher Secondary School but they are not specific qualification as that of the principal of the Intermediate College. The Judgement dated 29.9.2003 while in interpretation for qualification prescribed in relation to the Head Master in Appendix-A under regulation 1 of Chapter-II of Intermediate Education Act are not the qualification of the principal of Intermediate College. The regulation 1 of Chapter II in itself makes a distinction between the Head Master and Principal. Thus the qualification laid down in Appendix-A were not required to construe in respect of eligibility criteria of academic qualification prescribed for appointment to a post of a Principal; as that of, the qualification of the Principal of the Intermediate College. The Judgement is wrong to the aforesaid extend and by having the harmonious construction to the provisions of the regulation under Chapter-II and Chapter-III of the Intermediate Act in the light of Section-16-Eof Intermediate Act and Section-32 of the Principal Act of 1982. Even the second petitioner, posted as Assistant teacher was not having 4 years teaching experience, but still than on the basis of the two writ petition bearing writ petition No. 40398 of 1999 and writ petition No. 40602 of 1999 filed by two Assistant teachers, the selection and the recommendations for including the appointment made on the post of principal to number of successful candidate in pursuant of advertisement 1998, the entire selection process has been set aside .The amended minimum qualification prescribed to

the note to Rule 12 (5) of the aforesaid Rule of 1998 are the actual qualification prescribed on the post of the Principal of the Intermediate College. Section 16-E of the Act govern only those cases where there has to be a direct appointment of a person as Head of the institution or a teacher from their recognize institutions. Rule 5 of U. P. Secondary Education Service Selection Board Rules 1998 prescribed only the according qualification to a post of a teacher as specified in regulation 1 of Chapter-II of the regulations made under the Intermediate Education Act-1921. Thus, it is not in conflict with Rule-12 (5) wherein the appointment for the post of Head Master and Principal has been dealt with. Thus the judgement to the extend that since the advertisement has been challenged by the Assistant Teacher, who has been denied the opportunity to apply the post of the Principal in the Intermediate College in pursuance of the advertisement on the post of the Principal can not be sustained. This is the wrong interpretations of the provisions of Rule-5 read with Rule-12 (5) of U.P. Secondary Education Service Selection Board Rule-1998 in setting aside the entire selection and the recommendations made for appointment on the post of the Principal. This is per in curium under law and is not a correct Judgement, in as much as, Section- 32 of the Principal Act has been all together vitally ignored n the aforesaid Judgement, which was taken in to consideration by the Learned Single Judge while up holding the qualification prescribed in the advertisement for the selection and recommendation on the post of the Principal. Thus the Judgement delivered on 29.9.2003 is having the vital flow in interpretation of the aforesaid provisions in its right prospective to contention of the appellants. The other aspect of the infirmity, although not crucial, as pointed out in the Judgement regarding the applicability of the provisions of U. P. Public Service (regarding for Schedule cast/ Schedule Tribes and other Back ward Classes) Act 1994, which has been dealt with in the judgement that since the candidate selected and recommended for appointment from amongst the name recommended by the Committee of Management of the private managed institutions from amongst the lecturer already posted in the institutions and as such the aforesaid selection and recommendation shall be deemed to have been made for the single post of the Principal of the private managed institution. Since the right of the appointment has been conferred open to the committee of management of privately managed institution, and as such, the aforesaid appointment is a single appointment on one post on the Principal and it is not the public service nor the Reservation Act in furtherance in the constitutional Bench decision of Post Graduate Institution of Medical Education and Research, Chandigarh Vs. Faculty Association and Others (1998) 4 SCC 1 shall not be applicable. There has not been any consideration to the aspect, that in case of direct recruitment on the post of the principal, the selections have been made from amongst the bulk of the candidates applying for the appointment on the posts of the principal by specifying their preference and their names are considered under Rule-12 of Rule Of 1998, not from amongst the lecturers posted in the same institutions but from amongst the open competition based on region wise and as such the judgement dated 29.9.2003 has ignored such vital consideration regarding the applicability of U.P. public service ( reservation ) for SC , ST and other backward class ) Act 1994. In case of selection and recommendation of the names of selected candidate from amongst the candidates applying directly to the Selection Board under Rule 12- of U.P. Secondary Education Service Selection Board Rule 1998, the selection cannot be regarded as the selection on a single post of Principal. The Judgement passed on 29-09-2003 has intermixed all the vital issues and thereby an illegality has been perpetuated in deciding the matter by intermixing the issue in respect of the selection and recommendation made for direct recruitment and recruitment by promotion provided under Rule 12 and 14 respectively. The provision of Transfer clause contemplated in respect of the principal from one institution to another institution under regulations of chapter III further provides that the post of the principal is not a single post but the same is a cadre with in the meaning of the reservation Act. The contention of both the Judgement passed by the learned single Judge and in the Special Appeal No. 159/2001 that the state Government has rightly not provided any reservation as neither posts of all heads nor all posts of the teachers in the institution, can be clubbed together. The said preposition has been wrongly decided by construing post graduate institute of medical Education Case 1998 (4) Sec. 1 and such both the judgement are not correct Judgement within the ambit and scope Article 16 (4) of constitution of India . This aspect has not been dealt with properly in the Judgement dated 29/09/03. Thus the vital question in respect of the education prescribed under section 16-E, which are in relation to the post of principal filled up by the promotion and this the same are different that in case of direct appointment of the principal in the said institution, has been vitally ignored due to improper assistance and incorrect interpretation of law in this case. YOGESH KUMAR SAXENA, ADVOCATE Chamber No. 139, High Court Allahabad