SPA/314/2015 of The Manager Inter College Lakhan Mandi Vs Ms Pooja Pant AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Special Appeal No. 314 of 2015

The Manager, Inter College, Lakhan Mandi Chorgalia, District Nainital

Appellant

Versus

Ms. Pooja Pant and others

……… Respondents

Present: Mr. D.K. Joshi, Advocate for the appellant.

Mr. S. Bhupendra Singh, Advocate for respondent No.1

Mr. N.S. Pundir, Brief Holder for the State/respondent Nos. 2

Special Appeal No. 315 of 2015

Smt. Indira Joshi .……..

Appellant

Versus

Ms. Pooja Pant and others

……… Respondents

Present: Mr. Sanjay Bhatt, Advocate for the appellant.

Mr. S. Bhupendra Singh, Advocate for respondent No.1

Mr. N.S. Pundir, Brief Holder for the State/respondent Nos. 2

Mr. A.S. Bisht, Advocate for respondent No.5.

AND

Special Appeal No. 313 of 2015

The Manager, Govindi Devi Inter College, Bel Pokhra, District Nainital

Appellant

Versus

Ms. Pooja Pant and others

……… Respondents

Present: Mr. D.K. Joshi, Advocate for the appellant.

Mr. S. Bhupendra Singh, Advocate for respondent No.1

Mr. N.S. Pundir, Brief Holder for the State/respondent Nos. 2

Mr. A.S. Bisht, Advocate for respondent No.4.

Coram : Hon’ble K.M. Joseph, C.J. Hon’ble V.K. Bist, J.

JUDGMENT

Date: 29th September, 2015

K.M. Joseph, C.J. (Oral)

The appeals, three in number, are being disposed of by common judgment.

2. Special Appeal No. 314 of 2015 is directed against Writ Petition (S/S) No. 2160 of 2014. Special Appeal No. 313 of 2015 is filed against Writ Petition (S/S) No. 8 of 2015. The writ petitioner is one the same person and hereinafter referred to as the writ petitioner.

3. In Writ Petition (S/S) No. 8 of 2015 the matter relates the selection of teachers in respondent Nos. 3 & 4, who are arrayed as Managers of two different Inter Colleges. In Writ Petition (S/S) No. 2160 of 2014 the very same writ petitioner has called in question the recruitment of teaching post in regard to yet another Inter College.

4. Special Appeal No. 314 of 2015 is filed by the 3[rd]respondent in Writ Petition (S/S) No. 2160 of 2014. Special Appeal No. 313 of 2015 is filed by the 3[rd] respondent in Writ Petition No. 8 of 2015, whereas Special Appeal No. 315 of 2015 is filed specially by the candidate who alleges that she has been successful in the selection held by the 3[rd] respondent in Writ Petition (S/S) No. 8 of 2015.

5. The prayers in Writ Petition (S/S) No. 2160 of 2014 are as follows:

“(A) To issue writ, order or direction to quash the entire recruitment process and directing to start the process recruitment process and directing to start the process

afresh in accordance with Uttaranchal School Education Act and Rules framed.

(B) To issue writ, order or direction in the nature of mandamus directing the respondent No.3 to prepare the merit list of top seven candidates afresh as per above rules and stop the current process of selection.” mandamus directing the respondent No.3 to prepare the merit list of top seven candidates afresh as per above rules and stop the current process of selection.”

The prayers in Writ Petition (S/S) No. 8 of 2015 are as

follows:

“(A) To issue writ, order or direction in the nature of mandamus directing the respondent No.3 and 4 to prepare the fresh merit list of top seven candidates in accordance with ‘the Uttarakhand School Education Act, 2006 and rules framed there under’ and not to proceed further as per the current process of selection. mandamus directing the respondent No.3 and 4 to prepare the fresh merit list of top seven candidates in accordance with ‘the Uttarakhand School Education Act, 2006 and rules framed there under’ and not to proceed further as per the current process of selection.

(B) To issue writ, order or direction in the nature of certiorari quashing the select list issued by the respondent No.2 in complete defiance of ‘the Uttarakhand School Education Act, 2006 and rules framed there under’.” certiorari quashing the select list issued by the respondent No.2 in complete defiance of ‘the Uttarakhand School Education Act, 2006 and rules framed there under’.”

6. Before the learned Single Judge apparently the contention which was urged and which was considered on behalf of the writ petitioner was that the advertisement issued by the Colleges in question did not indicate the upper age limit for applying for the posts concerned. The learned Single Judge found favour with this argument and accepted it and, on the said basis, allowed the writ petitions and interfered with the selection, but confined the relief and held as follows:-

“In view of what has been stated above, the Court feels that the advertisements issued by all these three colleges are not sustainable and the same are hereby quashed so long as for the post of lecturer English. The respondents are directed

that if they want to fill up the post of Lecturer in any such colleges, they will advertise the post in noticeable words in some daily news papers having wide circulation in the State entailing the minimum as well as the maximum age limit, which should not be in the contravention of the rules of 2008. They should also mention whether the post is temporary or permanent as well as the scale of pay and all other maximum relevant details which are possible at their end enabling all such persons who have every right to present themselves as suitable candidates for the same. Every precaution shall be taken by the Management Committee that no undue favour is extended to any person, whosoever.”

7. We heard the learned counsel for the appellants and the learned counsel for the respondents. According to the learned counsel for the appellants, there is no limit prescribed for the maximum age, in so far as the institutions in question are concerned. It is submitted that Section 36 of the Uttaranchal School Education Act, 2006 (hereinafter referred to as the Act) deals with the procedure for appointment of teachers and employees. Sub-section (3) of Section 36 provides that no person shall be appointed as Head of Institution or teacher in an institution unless he/she possesses the qualification prescribed by regulation. Section 37 of the Act provides for constitution of Selection Committee. Section 39 provides for the conditions of service of teachers, inter alia. Regulations have been framed pursuant to the provisions in question. In the regulations, it is pointed out, what is provided is that the minimum age and the minimum educational and training eligibility of the teachers of all subjects for the appointment in the recognized non-government educational institutions shall be as fixed from time to time for the teachers of Government Inter Colleges. Thereafter, no doubt, it is also provided as follows:

“(Ka) After having determined the number of vacancies by the committee of management and after having received the approval from the District Education Officer for the Advertisement, The post shall be advertised by the manager of the institution in at least two such Daily news papers which have wide circulation in the state, provided that

the District Education Officer shall select the list of newspapers after due sanction of the concerned Additional Education Director of the region, it shall be mandatory for all the committee of management of the district to advertise the post in two daily news papers amongst the aforesaid. The nature of appointment (i.e. temporary or permanent), number of vacancies, detail of post (i.e. Principal or Head Master, Lecturer, Teachers L.T. or B.T.C. Grade and subject(s) in which Lecturer is required), Salary and other allowances, desirable experience, minimum eligibility and minimum age prescribed for the post if any, be mentioned in the advertisement and date (generally not being less than three weeks from the date of advertisement) be mentioned following which the application filled up by the candidates in prescribed format shall be received by the office of District Education Officer sent by way of registered post through post office.

It shall also be mentioned in the advertisement that the prescribed format of the application may be obtained from the concerned office of the District Education Officer on payment of 100 rupees each by way of crossed postal order or demand draft in the name of concerned District Education Officer. Payment in cash shall not be accepted in any case in the office of District Education Officer. Besides the copy of the advertisement shall be sent by the manager to the concerned District Education Officer and if the post of Head of the institution is advertised the copy of the advertisement be sent to the additional Education Director of the region concerned.”

8. Therefore, he would submit that the learned Single Judge was in error in finding that the recruitment is vitiated on account of the fact that the upper age limit was not mentioned.

9. Per contra, the learned counsel for the writ petitioner would submit that what is provided for the teachers of the Government Inter Colleges would become applicable and as far as the Government Inter Colleges are concerned, the upper age limit is 35. Furthermore, it is also pointed out that the advertisement as such is vitiated for the reason that it does not mention whether the post in question is temporary or permanent and the pay scale. It is also further contended that it is not mentioned that those who are

already in Government Service would have to produce ‘no objection’ from their employer for being considered.

10. In response to the same, learned counsel for the appellants would submit that what is mentioned is only the minimum age and there is no indication about the maximum age in the regulation and the matter is to be decided on the basis of regulation and the learned Single Judge was clearly in error in reasoning in the manner as he has done. As regards non-mentioning of the nature of the post, that is, whether it is permanent or temporary and the pay scale is concerned, no prejudice is caused to the appellant who has applied. There is case for the Manager of the institution also that the appellant is already working and she was aware of the nature of the employment and no prejudice is caused. It is specifically submitted by Shri D.K. Joshi that the post in question is permanent post. He also would point out that it is indicated in the advertisement that the recruitment will be done in accordance with the regulation and, therefore, no prejudice is caused to the writ petitioner for non-mentioning of the nature of the appointment and also the pay scale. No doubt, he fairly admits that it is something which should have been mentioned in the advertisement, but it is submitted that no prejudice is caused on account of non-mentioning of the appellant of the said details in the advertisement. He would also draw our attention to the prayers which have been sought. He would further submit that the persons who are affected are not made parties. In fact, it is submitted that as far as Special Appeal No.313 of 2015, which is directed against Writ Petition (S/S) No. 08 of 2015 is concerned, in regard to the 3[rd]respondent-institution in the writ petition selection process was completed and the matter was awaiting approval. Learned counsel for the appellant in Special Appeal No.315 of 2015 would submit that the appellant has been selected in respect of the 3[rd] respondent-institution and that is awaiting approval, whereas she would also

submit that she has also participated in the process in respondent no.4.

11. It is necessary at this juncture to notice the reasoning adopted by the learned Single Judge. The learned Single Judge has noted that the writ petitioner is post graduate in English. According to him, non-indication of the maximum age has permitted persons who are over age to apply. He would note that rules framed by the Government which are called the Uttarakhand Special Subordinate Education Lecturer Cadre Service Rules, 2008 envisaged the maximum age limit for induction in the Government Service. He would further reason that if the rules framed by the Board are contrary to the rules framed by the Government for similar institutions, then such rules are against the norms of accepted standard and leave the smell where the possibility of corruption to the whims and caprices of the Manager, Members of the Management Committee and the State Education Officers could hardly be ruled out. Better the board may ponder to amend and modify the rules accordingly. It is stated that if there is any omission in the regulations, then certainly the framers have not applied their mind and contemplated the eventuality that in the absence of any upper age limit, which can not be thought of in government job, even the person running in his late fifties can apply after obtaining bogus teaching experience of free educational institution having no standards. He has noted the contention that maximum age limit was not countenanced in the advertisement just to favour the desired candidate and to ensure her/his final selection. He has distinguished also the judgments in Ramesh Chandra Shah and others versus Anil Joshi and others, reported in AIR 2013 SC, 1613 and Vijendra Kumar Verma versus Public Service Commission, Uttarakhand & others, reported in (2011) 1 SCC, 150 on the basis that those were the cases where the facts were

distinguishable. It is thereafter that he has issued the impugned directions.

12. The case has been disposed of on the basis of the non-indication of the upper age limit. No doubt, the colleges in question received aid from the Government and they are aided institutions, but this is matter which is governed by the Statute. We have referred to Section 36 in particular. Section 36 provides that the matter will be decided on the basis of regulations framed. We have already adverted to the regulations. Regulations specifically provide for the minimum age and the minimum qualifications as are applicable to Government Inter Colleges being applicable. The express use of the word ‘minimum age’ and the conspicuous absence of the word ‘maximum age’ and followed by minimum qualifications would appear to us to indicate that what is contemplated is minimum educational qualification. What is important as far as the aided institution is concerned is indication of the minimum age and the minimum educational qualifications in service conditions. There is no controversy regarding the minimum age. As regards the non-mention of maximum age, we are of the view that the learned Single Judge was not correct in the reasoning which he has adopted.It may be true that in the matter of appointment of teachers in the Government institutions, maximum age is mentioned, but the regulations in questions specifically provide for the indication of the minimum age. It does not prescribe for the maximum age limit. The prayer in the writ petition itself was that the regulations must be followed in the matter of recruitment. Even if the prayer of the writ petition is granted, writ petitioner could not have possibly asked for direction to stipulate for maximum age, what is not contemplated in the regulations. No doubt, it is undesirable and we have no hesitation in agreeing with the contention of the writ petitioner that it is undesirable not to indicate the maximum age and this is certainly matter, which, wehope, will be taken up by the Government and we hope the regulation will be amended so as to provide for the maximum age also, but that is not matter which can decide the destiny of these cases as we have governed by the regulations as they stand. Resultantly, the reasoning given by the learned Single Judge in allowing the writ petitions can not be sustained.

13. Then there remains question of non-mentioning of the nature of the post and the pay scale. As far as these appeals are concerned, undoubtedly, the regulation, which we have adverted to, mandates the institution to indicate the nature of the appointment that is whether temporary or permanent and also the pay scale, but we find that in this case we need not interfere with the matter on the said score. We would think that the petitioner can not be said to be prejudiced by the non-mentioning of this. Petitioner applied for the post shown in the advertisement. There is case for the appellant (Sri D.K. Joshi) that the appellant must be treated as aware of the nature of post being permanent. At any rate, appellant has applied and it is thereafter that the appellant has come to court. Unlike the argument relating to the upper age not being mentioned, which if had been accepted by us would have been substantial matter and which should have resulted in allowing of the writ petitions, we would feel that the non-mentioning of the nature of the post and the pay scale, in the facts of this case, need not stand in the way of appeals being allowed. No doubt, for moment we are not suggesting that the regulations should not be complied with but we are only indicating that we need not extend the discretionary relief under Article 226 of the Constitution of India to the writ petitioner on the said score in the facts of this case and we must not be treated as having ruled that advertisement can be issued without indicating these details.

14. Lastly, there is also case that persons without no objection were considered. It is pointed out that there is no provision indicating it in the advertisement under the regulation. No provision is shown to us which mandates such disclosure, but we leave it open to the Educational Authority to take decision on the matter of approval. That is to say the argument that if person is already in Government service, there should be no objection produced alongwith the application is matter which we leave it open to the authority concerned to consider.

15. We notice that no appeal has been filed by the 4[th]respondent in Writ Petition (S/S) No. 8 of 2015, but we further must bear in mind that Special Appeal No. 315 of 2015 is filed by candidate who has applied for being selected in both the respondent Nos. 3 & 4 and, according to whom, she has been selected in the interview and the matter is pending approval in regard to respondent No.3 and she has also participated for being selected in the 4[th] respondent institution and according to the learned counsel for the appellant that in case selection of the 3[rd] respondent institution is not approved, she would submit that she is interested in selection to respondent No. 4. In the facts of this case, therefore, we would think that the judgment of the learned Single Judge as whole can not be sustained and the writ petitions filed by the writ petitioner must fail. Consequently, we allow the appeals. The judgments in the writ petitions will stand set aside and the writ petitions will stand dismissed subject to the observations we have made.

(V.K. Bist, J.) (K.M. Joseph, C.J.)

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