# Dr. Ram Kinkar Singh v. U.P. Public Service Commission and others

- **Citation:** (2009) 3 ILRA 1162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-24
- **Case number:** Civil Misc. Writ Petition No. 56383 of 2009
- **Bench:** Ashok Bhushan, K.N. Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ram-kinkar-singh-v-u-p-public-service-commission-and-others-41418
- **Pages:** 9

## Headnote

Sri Pushpendra Singh
Sri G.K. Malaviya
Sri G.K. Singh
Sri P.S. Baghel
3 All] Dr. Ram Kinker Singh V. U.P.Public Service Commission and others
1163
C.S.C.

Constitution
of
India,
Article
226Selection
of
Principle
in
Medical
Colleges-eligibility
criteria-5
years
experience
as
professor-petitioner
already
discharging
duty
head
of
Department
E.N.T.
w.e.f.
1.2.2004selected as professor by commission on
21.07.2004 delay caused in issuance of
appointment letter by Govt.-can not
come in way of counting the period of
actual working-held-petitioner fulfill the
eligibility
of
principal-entitled
for
consideration.

Held: Para 14 & 15

In the facts of the present case, it is not
the case of the respondents that there
was any other professor after 1.4.2004
from which date, the petitioner was
working as Head of Department E.N.T.
After selection of the petitioner on
21.7.2004 by the U.P. Public Service
Commission on the post of Professor, the
petitioner was discharging all the duties
including the teaching of the medical
college. It is not the case of the
respondents that on the date when the
petitioner was declared selected as
Professor or thereafter the petitioner
was not performing teaching work. The
above
case
is
thus,
clearly
distinguishable from the facts of the
present case.

Taking into consideration over all facts
and circumstances of the present case
and discussions made as above, we are
satisfied that the petitioner fulfils the
eligibility for the post of Principal and
was
entitled
to
be
considered
for
selection by the Commission, which
Commission has actually done after an
interim order of this Court. As noted
above, the petitioner has already been
selected on the post of Principal.
Case law discussed:
(2008) 1 SCC (L& S) 308, (1994) 2 SCC 723,
(1996) 9 Supreme Court Cases 209, (2000) 5
SCC 262, (2007) 10 Supreme Court Cases 269.

## Text

1162 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
for the maximum number of employees to
be engaged in the category available in
the institution. According to the said
norms it has been found that there are
three Class-IV employees in excess of the
maximum limit prescribed. Applying the
aforesaid principle, it cannot be said that
the District Inspector of Schools, Jaunpur
has committed any illegality.

6. So far as, the question of the
appointment of the petitioners by Shri
Mool Chand Pandey is concerned, it
would be appropriate to mention that
there is no dispute that the said Principal
had
already
attained
the
age
of
superannuation. Shri Tripathi, however,
contends that he was continuing on
extended employment and for all practical
purposes he was the Principal of the
institution. In view of this, his authority to
proceed to make the appointments cannot
be questioned.

7. The aforesaid argument cannot be
accepted in view of the Division Bench
judgment of this Court in the case of Hari
Om Taesat Brahma Shukla Vs. State of
U.P. and others reported in 2007 (1) ESC
193 wherein, it has been held that a
person appointed on ad hoc basis as the
head of the institution, upon attaining the
age of superannuation, shall continue on
his substantive post till the end of the
session, and not as a Principal.

8. In view of this, the then ad hoc
Principal Shri Mool Chand Pandey could
not have functioned as dejure Principal so
as to empower him to exercise his
discretion to make appointments against
Class-IV posts after the date on which he
attained the age of superannuation. The
second argument therefore also cannot
stand the test of scrutiny. Accordingly,
this Court cannot declare the findings
recorded by the District Inspector of
Schools to be incorrect.

9. It is however to be noted that the
question of approval or disapproval of
such appointments is now under the
jurisdiction and scrutiny of the Regional
Level Committee under the Government
Order dated 19.12.2000. In case the
petitioners are aggrieved it is open to
them to approach the Regional Level
Committee for the redressal of their
grievances. In case such a representation
is filed, it shall be open to the Regional
Level Committee to arrive at its own
finding without being influenced by this
orde but of course, only in accordance
with law.

10. The writ petition is dismissed
with the aforesaid observation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.12.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE K.N. PANDEY, J.

Civil Misc. Writ Petition No. 56383 of 2009

Dr. Ram Kinkar Singh
...Petitioner
Versus
U.P. Public Service Commission and
others

 ...Respondents

Counsel for the Petitioner:
Sri Sanjiv Singh
Sri Namwar Singh

Counsel for the Respondents:
Sri Pushpendra Singh
Sri G.K. Malaviya
Sri G.K. Singh
Sri P.S. Baghel
3 All] Dr. Ram Kinker Singh V. U.P.Public Service Commission and others
1163
C.S.C.

Constitution
of
India,
Article
226Selection
of
Principle
in
Medical
Colleges-eligibility
criteria-5
years
experience
as
professor-petitioner
already
discharging
duty
head
of
Department
E.N.T.
w.e.f.
1.2.2004selected as professor by commission on
21.07.2004 delay caused in issuance of
appointment letter by Govt.-can not
come in way of counting the period of
actual working-held-petitioner fulfill the
eligibility
of
principal-entitled
for
consideration.

Held: Para 14 & 15

In the facts of the present case, it is not
the case of the respondents that there
was any other professor after 1.4.2004
from which date, the petitioner was
working as Head of Department E.N.T.
After selection of the petitioner on
21.7.2004 by the U.P. Public Service
Commission on the post of Professor, the
petitioner was discharging all the duties
including the teaching of the medical
college. It is not the case of the
respondents that on the date when the
petitioner was declared selected as
Professor or thereafter the petitioner
was not performing teaching work. The
above
case
is
thus,
clearly
distinguishable from the facts of the
present case.

Taking into consideration over all facts
and circumstances of the present case
and discussions made as above, we are
satisfied that the petitioner fulfils the
eligibility for the post of Principal and
was
entitled
to
be
considered
for
selection by the Commission, which
Commission has actually done after an
interim order of this Court. As noted
above, the petitioner has already been
selected on the post of Principal.
Case law discussed:
(2008) 1 SCC (L& S) 308, (1994) 2 SCC 723,
(1996) 9 Supreme Court Cases 209, (2000) 5
SCC 262, (2007) 10 Supreme Court Cases 269.
(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Sanjiv Singh, learned
counsel for the petitioner, Sri R.N. Singh,
learned Senior Advocate, assisted by Sri
G.K. Singh for the respondent no. 5, Sri
P.S. Baghel, learned Senior Advocate
appearing for the respondents no. 1 and 2
as well as learned Standing Counsel
appearing for the State respondents No. 3
and 4.

2. Counter affidavit on behalf of
respondent No. 5 has been filed in the
writ petition to which rejoinder affidavit
has also been filed. With the consent of
learned Counsel for the parties, the writ
petition is being disposed of.

3. By this writ petition, the
petitioner has prayed for quashing the
order dated 8.10.2009, issued by the U.P.
Public Service Commission, rejecting the
candidature of the petitioner for the post
of
Principal,
Government
Medical
College on the ground that the petitioner
does not possess five years experience as
professor. The petitioner has also prayed
for a mandamus, directing the respondents
no. 1 and 2 to permit the petitioner to
appear in the interview for the post of
Principal, Government Medical College
(Allopathic)
and
to
consider
the
candidature of the petitioner for the
appointment to the post of Principal.

4. Brief facts of the case necessary
for deciding the writ petition are that the
petitioner was appointed as Lecturer in
Medical College, Kanpur on 5.9.1985.
The petitioner was promoted on the post
of Assistant Professor on 4.1.1988 and
functioned as such till 4.3.1999. He
worked as Associate Professor from
5.3.1999. The petitioner was working as
1164 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Associate Professor in G.S.V.M. Medical
College Kanpur where the Head of
Department
retired
on
31.3.2004
whereafter w.e.f. 1.4.2004, the petitioner
has been working as Head of the
Department of E.N.T. there being no
Professor in the Department. Several
posts
of
professors
in
different
Government Medical Colleges of the
State were advertised by the U.P. Public
Service Commission. The petitioner as
well as one Dr. S.P. Singh another
associate professor applied against the
post of Professor. The petitioner as well
as Dr. S.P. Singh were interviewed by the
Commission on 17.7.2004. The result of
the post of Professor was declared on
21.7.2004, declaring both the petitioner
and Dr. S.P. Singh selected on the post of
professor. Although appointment letter
was issued to Dr. S.P. Singh on 6.8.2004
as professor Opthalmology but the
appointment letter to the petitioner could
be issued on 6.11.2004 as Professor
E.N.T., in pursuance of which he could
join the post of Professor on 16.11.2004.
8
posts
of
Principals
in
different
Government
Medical
Colleges
(Allopathy)
were
advertised
by
advertisement
dated
27.8.2009.
The
qualifications for the post of Principal as
provided in the advertisement were; (1)
M.D/M.S. Or an equivalent qualification
recognised by Medical Council of India,
(2) Atleast ten years teaching experience
as Professor/Associate Professor in a
recognised Medical College out of which
atleast five years should be as professor.

5. The petitioner submitted his
application in response to the aforesaid
advertisement. In his application, the
petitioner claimed experiences as follows:

(a) Associate Professor (in society)
5.3.1999 to 19.11.2002
(b) Associate Professor (From U.P.
Public
Service
Commission)
from
20.11.2002.
(c) Professor
(From
Public
Service
Commission) from 17.7.2004
(d) Head of Department E.N.T. w.e.f.
1.4.2004.

6. The petitioner's application has
been rejected by the U.P. Public Service
Commission by order dated 8.10.2009 on
the ground that the petitioner does not
possess
five
years
experience
as
Professor. The petitioner filed the present
writ petition challenging the aforesaid
order dated 8.10.2009. This Court vide
order dated 28.10.2009 passed following
interim order, directing the respondents to
provisionally permit the petitioner to
appear in the interview.

"Heard, learned counsel for the
petitioner and Shri P.S. Baghel for the
respondent no.2.
By this petition, petitioner has
prayed for quashing the order dated
08/10/2009, passed by Commission by
which the petitioner's candidature has
been rejected on the ground that he does
not have 5 years experience as a
Professor. Petitioner's case in the writ
petition is that he appeared for selection
before the Commission on the post of
Professor and he was declared selected
on 21/7/2004. He submits that due to
delay on the part of the respondents,
appointment letter could not be issued on
06/11/2004. Placing the reliance on the
judgment of the Supreme Court in (2008)
1 SCC (L&S) 308, Union of India Vs.
Sadhana Khanna (SMT), learned counsel
for the petitioner contends that the mere
issuance of delayed appointment letter
3 All] Dr. Ram Kinker Singh V. U.P.Public Service Commission and others
1165
cannot defeat the rights of the petitioner
and from the date he was declared
selected as Professor he had completed
requisite number of service. Petitioner
has made out a prima-facie case for
permitting him to appear in the interview
which is schedule to take place today. The
respondent no.2 is directed to permit the
petitioner to appear in the interview
provisionally. Shri P.S. Baghel, learned
counsel appearing for the respondent no.2
shall communicate this order. Shri P.S.
Baghel may file counter affidavit within
three weeks.
List thereafter."

7. The petitioner was interviewed by
the Commission and the U.P. Public
Service Commission declared its result on
6.11.2009 provisionally selecting the
petitioner as Principal subject to result of
the writ petition. The respondent no. 5,
who was not a party to the writ petition,
moved
an
application
seeking
his
impleadment as one of the respondents in
the writ petition on the ground that
respondent no. 5 also applied and was
interviewed for the post of Principal but
could not be selected due to selection of
the petitioner against the second post
reserved for Other Backward Classes. The
case of the respondent no. 5 is that the
petitioner being not eligible for the post of
Principal, his candidature as well as
selection on the post of Principal deserves
to be cancelled, which shall result in
selection of respondent no. 5, who is the
next Other Backward Class candidate.

8. Learned counsel for the petitioner
in support of the writ petition contended
that the petitioner fulfils the five years'
experience as professor and was wrongly
treated as ineligible by the Commission in
rejecting his candidature. It is submitted
that the petitioner had appeared in the
selection on the post of Professor before
the Commission on 17.7.2004, result of
which
was
declared
on
21.7.2004,
declaring the petitioner selected on the
post of Professor. It is submitted that in
case the date of selection of the petitioner
is treated to be the date from which the
petitioner can count his experience as
professor, he becomes clearly eligible. It
is submitted that both the petitioner as
well as Dr. S.P. Singh were interviewed
for the post of professor on 17.7.2004, the
result
of
which
was
declared
on
21.7.2004, but Dr. S.P. Singh was issued
appointment letter for the post of
Professor on 4.8.2004, whereas the
petitioner's appointment letter was issued
with delay on 6.11.2004, which fact
cannot prejudice the rights or claim of the
petitioner to claim his experience atleast
from the date when he was declared
selected i.e. 21.7.2004. It is submitted that
the petitioner infact had been working as
Head
of
Department
E.N.T.
from
1.4.2004 after retirement of the earlier
Head of Department and there was no
other professor working in the E.N.T.
Department and it was the petitioner, who
while functioning as Associate Professor
was working as Head of Department and
teaching the students. In the last, it is
submitted
that
the
petitioner
has
represented to the State Government
claiming benefit of appointment as
professor from the date Dr. S.P. Singh,
another professor was given appointment
as Professor and the State Government
vide order dated 26.11.2009 has modified
the earlier appointment order dated
6.11.2004, giving appointment to the
petitioner also w.e.f. 6.8.2004. A copy of
the order of the State Government dated
26.11.2009 has been brought on record as
1166 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Annexure-1
to
the
Supplementary
affidavit.

9. Sri R.N. Singh, learned Senior
Advocate appearing for the respondent
no. 5, submits that the petitioner cannot
count his experience as professor earlier
to 16.11.2004, when he joined as
professor in pursuance of appointment
letter dated 6.11.2004. It is contended that
the experience as Professor can count
only after joining on the post. He submits
that
there
cannot
be
any
deemed
experience without actual joining on the
post. The petitioner does not have
experience as Professor for five years. It
is further submitted that the petitioner
accepted the delayed appointment and
never agitated regarding issuance of the
his delayed appointment letter and the
petitioner was paid salary from the date of
appointment. Sri P.S. Baghel, learned
Senior Advocate appearing for the U.P.
Public Service Commission has supported
the order of Commission by submitting
that the petitioner having not fulfilled the
qualification of five years' experience as
professor, his candidature was rightly
rejected by the Commission. Learned
Counsel for the parties have also referred
to and relied on various decisions of the
apex Court which shall be referred to,
while considering their submissions in
details.

10. The only issue which has arisen
for consideration in the present case is as
to whether the petitioner possesses
experience of five years as professor,
which was the qualification required for
selection on the post of Principal. The
petitioner's case is that he being working
as Head of the Department E.N.T. from
1.4.2004, he is entitled to reckon his
experience from the date when he was
declared selected as Professor by the U.P.
Public
Service
Commission
i.e.
21.7.2004. He submits that the petitioner
was already working as Head of the
Department E.N.T., when he was declared
selected for the post of Professor and for
all practical purpose issuance of the
appointment letter and joining of the
petitioner as Professor was mere formality
hence, the working of the petitioner after
21.7.2004 has to be treated as working
and experience on the post of Professor.
Learned counsel for the petitioner submits
that the fact that the State Government
took unduly long time in issuing the
appointment letter, cannot defeat the
rights of the petitioner. Learned counsel
for the petitioner has pleaded that the
petitioner as well as Dr. S.P. Singh, who
was also applicant for the post of
Professor
were
interviewed
by
the
Commission on the same date i.e.
17.7.200 and results were declared on the
same day i.e. 21.7.2004. The appointment
letter was issued to Dr. S.P. Singh on
6.8.2004, and he having been treated as
Professor from 6.8.2004 has been treated
eligible for the post of selection in
question and ultimately has been selected.
It is submitted that the petitioner is
entitled to be given the similar treatment
regarding the counting of the experience
as was done in the case of Dr. S.P. Singh.
The petitioner has placed reliance on the
judgment of the apex Court in the case of
Union of India Vs. Sadhana Khanna
(2008) 1 SCC (L& S) 308. In the case of
Sadhna Khanna also she was selected as
Assistant Grade but there was some delay
in issuing the appointment letter dated
5.7.1983, while considering the next
promotion 1.7.1983 was treated as the
date of eligibility and the petitioner
having not been there on 1.7.1983 was not
treated eligible for consideration. Sadhna
3 All] Dr. Ram Kinker Singh V. U.P.Public Service Commission and others
1167
Khanna filed a claim petition before the
Central Administrative Tribunal which
was allowed. Union of India filed writ
petition in Delhi High Court which was
dismissed. Appeal was filed before the
apex Court which too was dismissed.
Following was laid down by the ape
Court in paragraph 11:

"11. It may be noted that the
respondent was offered appointment vide
letter dated 5-7-1983 which is after 1-71983 from which the eligibility was to be
counted. Hence, it is the Department
which is to blame for sending the letter
offering appointment after 1-7-1983. In
fact, some of the candidates who were
juniors to the respondent were issued
letters offering appointment prior to 1-71983. Hence it was the Department which
is to blame for this. Moreover, in view of
the
Office
Memorandum
of
the
Department of Personnel and Training
dated 18-3-1988 and 19-7-1989 the
respondent was also to be considered,
otherwise a very incongruous situation
would arise namely that the junior will be
considered for promotion but the senior
will not."

11. The present is a case where the
petitioner was interviewed as a professor
by the U.P. Public Service Commission
along with other candidate namely; Dr.
S.P.Singh on 17.7.2004, the result of
which
was
declared
on
21.7.2004,
declaring both the persons selected on the
post of professor. Appointment letter to
Dr. S.P. Singh was given on 6.8.2004,
whereas in the case of the petitioner
appointment
letter
was
issued
on
6.11.2004.
In
the
present
case
advertisement having been issued on
29.8.2009 and the last date for submitting
the application being 22.9.2009, the
eligibility had to be considered according
to the advertisement.

12. Had the petitioner been issued
appointment letter on 6.8.2004, when Dr.
S.P. Singh was issued appointment letter,
the petitioner would have completed five
years' experience as Professor even before
the date of advertisement but the
appointment letter was given to the
petitioner
on
6.11.2004.
There
are
following two reasons for treating the
petitioner fulfilling the experience of five
years as Professor.

(i) The petitioner was interviewed for
the post of Professor by U.P. Public
Service Commission on 17.7.2004 and
was declared selected for the post of
Professor on 21.7.2004. The petitioner
was
already
working
as
Head
of
Department E.N.T. from 1.4.2004, there
being no professor in the Department of
E.N.T. after 31.3.2004. The petitioner was
declared
selected
on
21.7.2004
as
Professor and mere formal appointment
letter by the State Government was to be
issued which issuance took more than
three months' period. The petitioner, who
was working as Head of Department after
being declared selected as Professor on
21.7.2004 was performing teaching work,
whose experience of teaching after
declaration of his result declaring him
selected as Professor, can very well be
treated his experience as Professor. The
judgment in the case of Union of India
Vs. Sadhana Khanna (supra) fully
supports the claim of the petitioner. The
delay in issuance of the appointment letter
in the case of the petitioner, cannot be
allowed to defeat the rightful claim of the
petitioner. Dr. S.P. Singh who was
interviewed and selected on the same
date, was issued appointment letter on
1168 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
6.8.2004, whereas the petitioner was
issued
the
appointment
letter
on
16.11.2004.

(ii) The petitioner had represented to the
State Government claiming him also to be
treated to be appointed on the same day
when Dr. S.P. Singh was appointed i.e.
6.8.2004, which representation has been
allowed and the State Government has
issued an order on 26.11.2009, also
appointing the petitioner w.e.f. 6.8.2004,
modifying
the
earlier
order
dated
6.11.2004. The order dated 26.11.2009
has been permitted to be brought on
record after hearing the parties. The order
of
the
State
Government
dated
26.11.2009, appointing the petitioner
from 6.8.2004 has clearly made the
petitioner eligible to count his experience
of Professor from 6.8.2004. It is not
disputed that counting the experience of
Professor from 6.8.2004, the petitioner
became eligible for the post of Principal.

13. Sri R.N. Singh, learned Senior
Advocate appearing for the respondent
no. 5 has placed reliance on the judgment
of the apex Court in (1994) 2 SCC 723
U.P. Public Service Commission U.P.
and another Vs. Alpana. In the above
case, the apex Court laid down that the
relevant date for fulfilment of the
eligibility conditions i.e. educational
qualification is the last date of the receipt
of the application by the U.P. Public
Service Commission. It was held that
subsequent
attainment
even
before
commencement
of
the
written
examination
does
not
entitle
the
respondent to be appointed. There cannot
be any dispute to the above proposition
laid down by the apex Court in Alpana's
case. In the present case, the petitioner
fulfills all the eligibility of educational
qualification before the last date of the
receipt of the application. The judgment
of the apex Court in (1996) 9 Supreme
Court Cases 209 State of Haryana &
others Vs. Balwant Singh and others
was in a case where the apex Court laid
down that it is settled law that seniority of
the candidate has to be reckoned from the
date from which they join the services and
started discharging the duties of the post
to which they claim to be entitled. In the
said case, the apex court laid down that
seniority
cannot
be
given
with
retrospective effect. There cannot be any
dispute to the above proposition laid
down by the apex Court. The present is
not a case where the question of seniority
is in issue or the date when the seniority is
to be reckoned. Another case relied by
counsel for the respondent no. 5 is (2000)
5 SCC 262 Bhupendrapal Singh and
others Vs. State of Punjab and others.
In the said case also the apex Court
considered
the
cut-off
date
for
determination
of
eligibility.
Advertisement was issued on 12.1.1996,
inviting
applications
by
15.2.1996.
Subsequently corrigendum was issued
permitting the candidates who were 36
years of age as on 1.1.1996 to apply by
30.10.1996. The High Court held that
State of Punjab was following a wrong
practise for determining the eligibility
conditions as on the date of interview.
The apex Court also approved the view of
the High Court that determination of
eligibility with regard to date of interview
was a wrong practice. However, the apex
Court exercised its power under Article
142 of Constitution of India and saved the
appointment. The issues which were there
in Bhupender Pal's case (supra) has no
application in the facts of the present case.
The last case relied by Sri R.N. Singh,
learned Senior Advocate appearing for the
3 All] Dr. Ram Kinker Singh V. U.P.Public Service Commission and others
1169
respondent no. 5 is (2007) 10 Supreme
Court Cases 269 V.B. Prasad Vs.
Manager
P.M.D.
Upper
Primary
School And others. In the above case, the
apex Court was considering the teaching
experience under Kerala Education Rules.
It was held that the condition of five
years'
teaching
experience
after
acquisition of B.Ed. Degree was also
applicable to the candidates mentioned in
the 'Note'. It was held that teaching
experience had to be actually teaching
experience and not deemed teaching
experience. The candidates mentioned in
the 'Note' did not have five years'
experience therefore, they were not
eligible for appointment as headmaster. It
was further held that study leave period in
fact did not count towards experience.
Paragraphs 8 and 9 of the aforesaid
judgment being relevant are quoted herein
below:

"8. Before embarking upon the
contentions raised by the learned counsel
for the parties, we may notice the
admitted fact. Respondent No. 2 joined
the School on 16.07.1969. Appellant
herein joined the school as a Drawing
teacher on 17.07.1978 and has been
working on a regular basis only with
effect form 02.06.1980. He was declared
a protected teacher from 01.06.1989.
While discharging his duties as a teacher,
Appellant applied for and granted study
leave for higher studies for two years with
effect from 01.06.1991. He remained on
leave upto 28.02.1993. It is accepted that
he was not a candidate who was
considered for appointment to the post of
Headmaster.
He
indisputably
gave
consent for appointment of Respondent
No. 2. His case, therefore, never fell for
consideration either by the management
of the school or by the Government or by
the High Court. Rule 45 of the Kerala
Education Rules in the aforementioned
context, interpretation whereof falls for
our consideration may now be noticed :
"45. Subject to rule 44, when the post of
Headmaster of complete U.P. School is
vacant or when an incomplete U.P.
School becomes a complete U.P. School,
the post shall be filled up from among the
qualified teachers on the staff of the
school or schools under the Educational
Agency. If there is a Graduate teacher
with
B.Ed.
or
other
equivalent
qualification and who has got at least five
years' experience in
teaching after
acquisition of B.Ed. degree he may be
appointed as Headmaster provided he has
got a service equal to half of the period of
service of the senior most undergraduate
teacher. If graduate teachers with the
aforesaid qualification and service are
not available in the school or schools
under the same Educational Agency, the
senior most primary school teacher with
S.S.L.C. or equivalent and T.T.C. issued
by the Board of Public Examination,
Kerala or T.C.H. issued by the Karnataka
Secondary Education Examination Board,
Bangalore or a pass in Pre-degree
Examination with pedagogy as an elective
subject conducted by the University of
Kerala or any other equivalent training
qualification prescribed for appointment
as primary school assistant may be
appointed.

Note : The language/specialist teachers,
according to their seniority in the
combined seniority list of teachers shall
also be appointed as Headmaster of U.P.
School or Schools under an Educational
Agency provided the teacher possesses
the
prescribed
qualifications
for
promotion as Headmaster of U.P. School
on the date of occurrence of vacancy."
1170 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
The said rule, thus, provides for essential
qualification. Rule 45 is in three parts.
The
first
part
provides
for
the
qualification of a teacher who can be
appointed in the post of Headmaster. He
must be graduate with B.Ed. or other
equivalent qualification and must have at
least five years' experience in teaching
after acquisition of B.Ed. degree. The
second part of the rule provides for
consideration of such teachers only in the
event a graduate teacher is not available.
Indisputably, Respondent No. 6 fulfils the
educational qualification as also five
years' experience in
teaching after
acquisition of B.Ed. degree. Ignoring her
claim, Respondent No. 2 was appointed
whose case comes within the purview of
the second part of Rule 45, as she did not
have the qualification specified in the first
part thereof. Appellant was a Drawing
teacher. He, therefore, was a specialist
teacher. According to him his case comes
within the purview of the 'note' appended
to Rule 45.
9. For the time being, we may assume that
in view of fact that he had also acquired
the qualification of B.Ed. in April 1989,
his case also could be considered in terms
of Rule 45; although it is well-settled
principles of law that the note appended
to a statutory provision or the subordinate
legislation must be read in the context of
the substantive provision and not in
derogation thereof. Five years' teaching
experience for appointment to the post of
Headmaster was a sine qua non. Such
teaching experience was to be 'teaching
experience' and not a deemed teaching
experience."

14. In the facts of the present case, it
is not the case of the respondents that
there was any other professor after
1.4.2004 from which date, the petitioner
was working as Head of Department
E.N.T. After selection of the petitioner on
21.7.2004 by the U.P. Public Service
Commission on the post of Professor, the
petitioner was discharging all the duties
including the teaching of the medical
college. It is not the case of the
respondents that on the date when the
petitioner was declared selected as
Professor or thereafter the petitioner was
not performing teaching work. The above
case is thus, clearly distinguishable from
the facts of the present case.

15. Taking into consideration over
all facts and circumstances of the present
case and discussions made as above, we
are satisfied that the petitioner fulfils the
eligibility for the post of Principal and
was entitled to be considered for selection
by the Commission, which Commission
has actually done after an interim order of
this Court. As noted above, the petitioner
has already been selected on the post of
Principal.

16. In the result, the writ petition is
allowed. The impugned order dated
8.10.2009 is set aside. However, the
parties shall bear their own costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2009

BEFORE
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 65928 of 2009

Dharam Pal Singh

...Petitioner
Versus
Deputy
Director
of
Consolidation,
Bulandshahr and others ...Respondents