VIVEK MUDGILversusSTATE OF U.P. & ORS.

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


 A                              VIVEK MUDGIL
                                        v.
                             STATE OF U.P. & ORS.
                   (Civil Appeal No. 11863-11864 of 2018 etc.)
 B                            DECEMBER 05, 2018
          [L. NAGESWARA RAO AND R. SUBHASH REDDY, JJ.]
             Service Law:
              Appointment – To the post of Principal – Qualification –
 C     Requirement of 10 years teaching experience – Appointment of
       appellant – Complaint questioning the appointment as the appellant
       was only having teaching experience of 9 years 3 months –
       Appointment cancelled – Writ petition by the appellant on the ground
       that the period of his study leave should be computed for the purpose
       of computing the teaching experience of 10 years – Single Judge
 D
       of High Court dismissed the petition – Special appeals, taking the
       plea that qualification of 10 years teaching experience cannot be
       regarded as essential qualification in view of power conferred on
       the Board under Proviso to s. 16-E(3) of 1921 Act – Division Bench
       of High Court dismissed the appeal – Appeal to Supreme Court –
 E     Notice issued by order dated 8.7.2015 – In view of the order dated
       8.7.2015 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: Teaching
       experience of 10 years was rightly considered as a necessary
       qualification – Appellant was having only 9 years 3 months of
 F
       teaching experience on the last date of submitting the applications
       – His study leave period cannot be considered as a teaching
       experience – When the matter was seized before the Court,
       respondent-Authorities should not have passed any order granting
       exemption – It is clear from order dated 8.7.2015 that there was no
 G     direction to consider for grant of exemption – However, the
       exemption order was not given retrospective effect – Therefore, grant
       of exemption would also not cure the disqualification – Uttar
       Pradesh Secondary Education Services Selection Board Rules,
       1998 – Intermediate Education Act, 1921.
 H
                                       1068
           VIVEK MUDGIL v. STATE OF U.P. & ORS.                       1069


      Dismissing the appeals, the Court                               A
      HELD : 1. It is not in dispute that as on the last date of
submission of applications pursuant to the advertisement 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          B
regard to academic qualification possessed by the appellant, there
was a requirement of 10 years of teaching experience. 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 is not in
dispute that from 15.04.1992 to 08.03.1996 he was studying in         C
Czechoslovakia and same cannot be considered as a teaching
experience. Further, having regard to the requirements in the
Regulations, teaching experience of 10 years is rightly considered
as a necessary qualification by the Division Bench of the High
Court. [Para 9][1072-D-H]                                             D
      2.1 It is pleaded that in view of the exemption granted he
is entitled to continue as Principal of the college. Such an
exemption is granted in view of the order passed by this Court
on 08.07.2015. It is clear from the order dated 8.7.2015 that
there was no direction at all to consider for grant of exemption.
By all fairness, when the matter is seized before this Court,         E
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   F
on last date of submission of the applications and on the date of
preparing the panel. [Paras 10 and 11][1073-A-B; 1073-D-F]
      2.2 Having regard to the notified required qualifications
under the Regulations, such qualification of 10 years of teaching
experience is necessary qualification for appointment to the post
                                                                      G
of Principal. [Para 11][1073-G-H]
      3. 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.
[Para 12][1074-A-B]                                                   H
1070                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


 A            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11863-
       64 of 2018.
             From the Judgment and Order dated 08.04.2015 of the High Court
       of Judicature at Allahabad in Special Appeal Nos. 189 and 190 of 2015.
                                         With
 B
             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,
 C     Ajit Singh Pundir, Ms. Abha R. Sharma, Ms. Garima Prashad,
       Abhishel Sharma, Dr. Monika Gusain, Tanmaya Agarwal, Advs. for the
       appearing parties.
             The Judgment of the Court was delivered by
             R. SUBHASH REDDY, J.
 D
             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
 E     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 passed by the learned Single Judge in writ petitions
       filed under Article 226 of the Constitution of India in which an order
       dated 10.12.2008 passed by the U.P. Secondary Education Services
 F     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
 G     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
 H
             VIVEK MUDGIL v. STATE OF U.P. & ORS.                                    1071
                   [R. SUBHASH REDDY, J.]

with a post graduate degree in the first or second class or a teaching               A
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            B
dispute that on the last date of submission of the applications, pursuant
to 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           C
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                D
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          E
years’ experience, his appointment was cancelled on 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               F
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.                                                                           G

      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
                                                                                     H
1072                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


 A     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. Secondary Education Services
       Selection Board Act, 1982 the requirement of 10 years’ teaching
       experience is a necessary qualification and is mandatory.
 B            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
 C     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.
 D           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 issued by the Board inviting
       applications for appointment to the post of Principal, the appellant herein
 E     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
 F     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
 G     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 years is rightly
       considered as a necessary qualification by the Division Bench of the
 H     High Court.
            VIVEK MUDGIL v. STATE OF U.P. & ORS.                               1073
                  [R. SUBHASH REDDY, J.]

       10. Before this Court, it is pleaded that in view of the exemption      A
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 :
                                                                               B
         “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           C
      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.”
                                                                               D
        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 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           E
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     F
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,   G
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 appointment to the post of Principal. Although
it is pleaded by learned counsel appearing for the respondents that the
                                                                               H
1074                  SUPREME COURT REPORTS                   [2018] 14 S.C.R.


 A     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,
 B     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.
 C

       Kalpana K. Tripathy                                       Appeals dismissed.




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