Vivek Mudgil vs State Of U.P

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.11863-11864 OF 2018 [Arising out of S.L.P.(C)Nos.14384-14385 of 2015]

Vivek Mudgil ... Appellant

Versus

State of U.P. & Ors. ... Respondents

W I T H

TRANSFERRED CASE(C)NO.5 OF 2018

J U D G M E N T

R. Subhash Reddy, J.

1. Application seeking impleadment of the applicants is

allowed as prayed for.

2. Leave granted in Special Leave Petitions.

3. These civil appeals are filed by the appellant

aggrieved by the order dated 08.04.2015 passed by the High

Court of Judicature at Allahabad in Special Appeal Nos.189

and 190 of 2015. By the aforesaid order, the Division Bench

of the High Court has confirmed the order dated 19.03.2015 Signature Not Verified

SANJAY KUMAR Date: 2018.12.05 passed by the learned Single Judge in writ petitions filed Digitally signed by 16:46:28 IST Reason:

under Article 226 of the Constitution of India in which

1 C.A.@ SLP(C)Nos.14384-85/15 etc.

an order dated 10.12.2008 passed by the U.P. Secondary

Education Services Selection Board (hereinafter referred to

as ‘the Board’) was under challenge.

4. The Board has issued an advertisement on 03.03.2002

inviting applications for appointment to the post of

Principal. The last date for submission of applications was

30.03.2002. The qualifications prescribed were – (i) the

possession of a Post Graduate degree from an institution or

a university established in accordance with law; and (ii)

possession of a training qualification, namely, B.Ed. L.T.,

B.T. and B.P.Ed. The advertisement contained a stipulation

requiring teaching experience of ten years in intermediate

classes of any recognised institution together with a post

graduate degree in the first or second class or a teaching

experience of fifteen years for a candidate possessing post

graduate degree in the third class.

5. The appellant herein was originally appointed as

Lecturer in Physics and his services were regularised from

12.01.1990. He was on study leave for the period between

15.04.1992 to 08.03.1996. It is not in dispute that on the

last date of submission of the applications, pursuant to

2 C.A.@ SLP(C)Nos.14384-85/15 etc.

advertisement issued by the Board, the experience of the

appellant was 9 years and 3 months as against the

requirement of 10 years. Initially the Board prepared a

panel of selected candidates in the month of August 2002,

which contained the name of the appellant herein. In view

of the litigation concerning selection of panels, the said

panel was not operated for the purpose of issuing

appointment orders. Only after orders are passed by this

Court in the month of May 2008, the panel prepared in the

year 2002 was operated and the appellant was appointed as

the Principal of the college and he joined as such on

15.07.2008. On 18.07.2008, a complaint was lodged before

the District Inspector of Schools, Jhansi alleging that

appellant did not possess 10 years of teaching experience

and same was mandatory for selection to the post of

Principal as per U.P. Secondary Education Services Selection

Board Rules 1998 read with Regulation 1 of Chapter II of the

Regulations framed under the Intermediate Education Act

1921. In view of such complaint, on the ground that

appellant herein has not fulfilled required qualification of

10 years’ experience, his appointment was cancelled on

3 C.A.@ SLP(C)Nos.14384-85/15 etc.

10.12.2008, which order was subject matter of challenge in

the writ petition filed by the appellant herein before the

High Court of Allahabad. The learned Single Judge has

dismissed the writ petitions by order dated 19.03.2015 by

holding that, the period during which the appellant was on

study leave cannot be counted towards teaching experience

and on the last date of submission of applications, the

appellant did not fulfill the required eligibility

criterion, i.e., possessing ten years of teaching

experience. The learned Single Judge, by recording a

finding that the appointment could not be protected under

Article 226 of the Constitution of India, rejected the

petitions.

6. Said order was challenged by way of Special Appeal

being S.A.Nos.189 and 190 of 2015 mainly on the ground that

possession of 10 years of experience cannot be regarded as

an essential qualification in view of the power conferred on

the Board under proviso to Section 16-E(3) of the 1921 Act.

The Division Bench of the High Court, rejecting the plea of

the appellant herein, dismissed the Special Appeals by

recording a finding that after enforcement of the U.P.

4 C.A.@ SLP(C)Nos.14384-85/15 etc.

Secondary Education Services Selection Board Act, 1982 the

requirement of 10 years’ teaching experience is a necessary

qualification and is mandatory.

7. During the pendency of the proceedings, the Board has

issued exemption proceedings in favour of the appellant

granting exemption of 9 months of teaching experience. As

pleaded in the counter affidavit it is stated that such an

exemption order was passed in view of the order dated

08.07.2015 passed by this Court in Special Leave Petitions.

When order of exemption is passed, such order was again

challenged by way of writ petition before the High Court

which is ordered to be transferred to this Court and on such

transfer the same is numbered as Transferred Case (C)No.5 of

2018 which is also taken up for hearing along with these

civil appeals. For the sake of convenience, the facts of

the civil appeals are being referred to.

8. We have heard learned counsel on both sides appearing

in civil appeals 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 of applications pursuant to the advertisement

5 C.A.@ SLP(C)Nos.14384-85/15 etc.

issued by the Board inviting applications for appointment to

the post of Principal, the appellant herein was having only

9 years 3 months of teaching experience. Even as per the

notification, having regard to academic qualification

possessed by the 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 teaching experience

on the last date of making applications. Mainly the writ

petitions were filed in the High Court alleging that his

period of foreign study leave is to be computed for the

purpose of computing the teaching experience of 10 years. It

was the case before the High Court that as he was granted

leave as per the leave rules and he was also granted

increments 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 higher studies in Czechoslovakia.

It is not in dispute that from 15.04.1992 to 08.03.1996 he

was studying in Czechoslovakia and same cannot be considered

as a teaching experience. Further, having regard to the

requirements in the Regulations teaching experience of 10

6 C.A.@ SLP(C)Nos.14384-85/15 etc.

years is rightly considered as a necessary qualification by

the Division Bench of the High Court.

10. Before this Court, it is pleaded that in view of the

exemption granted he is entitled to continue as Principal of

the college. We have also perused the order of exemption

which is granted during the pendency of the proceedings. It

is stated in the counter affidavit, such an exemption is

granted in view of the order passed by this Court on

08.07.2015. The order dated 08.07.2015 passed by this Court

reads as under :

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

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

11. It is clear from the aforesaid order that there was no

direction at all to consider for grant of exemption. By all

fairness, when the matter is seized before this Court

7 C.A.@ SLP(C)Nos.14384-85/15 etc.

respondent-authorities should not have passed any order

granting exemption in favour of the appellant. In any

event, from the perusal of the order, it is clear that no

retrospective effect is given to such exemption proceedings.

Even by grant of such exemption it will not cure the

disqualification of the appellant as on last date of

submission of the applications and on the date of preparing

the panel. In the absence of any such express provision

granting retrospective effect, even the exemption granted

will not come to the rescue of the appellant to support his

case. It is also pleaded that after the enforcement of the

provisions of the U.P. Secondary Education Services

Selection Board Act 1982, the power of exemption is also not

available but the same is not required to be considered at

this stage as we are of the view that exemption granted also

will not come to the rescue 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 the High Court that such qualification of 10 years of

teaching experience is necessary qualification for

8 C.A.@ SLP(C)Nos.14384-85/15 etc.

appointment to the post of Principal. Although it is

pleaded by learned counsel appearing for the respondents

that the power of exemption is not available after enactment

of the provisions of 1982 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

and consequently the transferred case also stands disposed

of. However, the issue, whether the respondent-authorities

are empowered to grant any order of exemption in exercise of

powers under proviso to Section 16-E(3) of the 1921 Act,

after enforcement of the provisions of the 1982 Act is left

open. If any such need arises, it is open for the parties

to approach the High Court in which event such issue is to

be decided independently uninfluenced by the order of the

High Court and this Court.

.....................J. [L. Nageswara Rao]

.....................J. [R. Subhash Reddy] New Delhi December 05, 2018

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