SMT BHAWNA MATHEWS AND OTHERS vs STATE OF UTTARAKHAND AND OTHERS

SHARAD KUMAR SHARMA, J. Â

This is a bunch of three special Appeals, which arises out of a common judgment, passed by the learned Single Judge, dated 4th September, 2014,

(for the purpose of convenience, as all these appeals involve same fact and law they are being heard and decided together by this common judgment).

By the impugned judgment rendered by the learned Single Judge, dated 04.09.2014, in the Writ Petition (S/S) No. 500 of 2011 “Kavita Saini Vs.

State of Uttarakhand and Othersâ€​, preferred by respondent No. 6 to the present Special Appeal, has been allowed. Consequently, the relief as sought

in the writ petition, challenging the appointment of private respondent nos. 6 to 10 (to the writ petition) as Assistant Teacher (Primary) (BTC) in the

Recognised Minority Aided Institution, run and managed by respondent No. 5 to the writ petition (Appellants to the Appeal No. 69 of 2015), has been

quashed and further a direction has been issued to the Director of Education, to call an explanation from respondent no. 3 to the writ petition, who has

also been impleaded by name as respondent no. 4, and further directing that, if the explanation given by him is not found satisfactory, disciplinary

proceeding be drawn against him.

Briefly put, the case of the respondent no. 6/writ petitioner, before the learned Single Judge, was as follows:Â

She contended that according to the provisions as contained under the Regulations of 2009, as framed u/s 24 of the Uttaranchal School Education Act,

2006, in its chapter II provides for minimum educational qualification and eligibility for the post of Assistant Teacher (Primary) (BTC). Since she was

a graduate and having a BTC training certificate, as required by Regulations, she was qualified to participate in the selection process and be

considered for in the process of selection for the post of the Assistant Teacher Primary) (BTC), in the primary school of respondent no. 5.Â

Under the Regulations itself, it provides that prior to issuing a publication under clause (a) of Regulation-17, inviting applications for selection, the

Management after determination of the number of available vacancies will have to get a sanction from the appropriate authority before it is

advertised.Â

It is the case of the writ petitioner that in pursuance to the provisions contained under Regulation 17(a), the Management i.e. respondent No. 5, to

the writ petition had filed an application before the District Education Officer i.e. respondent No. 3 to the writ petition, for seeking an appropriate

permission to advertise the vacancies, the said permission was granted by District Education Officer in favour of the respondent no. 5, on 6thÂ

September 2010, with specific direction that the Management would proceed to filling the posts strictly in accordance with the provisions contained

under Uttarakhand School Education Regulations, 2009.

The provisions regulating the appointment of the Assistant Teacher (Primary) (BTC), in a recognised aided minority institution, which Respondent

No. 5 is, provide under Regulations 17(a) as promulgated u/s 24 of the Uttarakhand School Education Regulation, 2009, that the Management, after

determination of number of vacancies shall advertise the posts in at least one Hindi and one English newspaper having wide circulation within area. In

the advertisement thus published, under the regulation, Management is required to publish the nature of the posts, number of vacancies available in a

discipline, the qualification required for each discipline, including the subjects, if at all needed the pay-scales and other admissible allowances, which

could be drawn against the said posts.Â

Under sub-clause (a) of Regulation 10 as applicable to other institution, which deals with the provisions relating to putting of the advertisement

inviting application, it contemplates that the advertisement would be issued in at least two newspapers after seeking permission from the District

Education Officer and the responsibility of the advertisement has been vested with the Manager of the Institution. The two newspapers, in which

publications are required to be made, it contemplates that one of the advertisements should be of publication duly approved by the District Education

Officer. Whereas, on the other hand, Regulation-17 which deals with the recruitment in an aided minority recognised institution, it is within the

exclusive domain of the management to make publication in one Hindi and one English newspaper of their choice of wide circulation. The only

stipulation contained therein is that the copy of the advertisement is to be sent to the District Education Officer. Unlike the process of advertisement

under sub-clause (a) of Clause 10, no such permission from District Education Officer pertaining to the newspapers in which the publication is

required to be made is contemplated under the advertisement to be issued for a minority recognised institution. Meaning thereby, the legislature in its

Regulation framed under section 24 intended to provide a different status and conditions of selection of the teachers of the recognised minority

institutions.

In the writ petition, it had been the contention of the respondent No. 6/writ petitioner, that after having learnt about the existence of vacancy for the

post of Assistant Teacher (Primary) (BTC), which was advertised on 21st September, 2010 by respondent no. 5, in daily newspaper, “Amar

Ujalaâ€, as being vacancies available to be filled in by direct recruitment in the institution of respondent no. 5, and she upon finding herself to be

qualified as per the advertisement dated 21st September 2010, she extended her candidature in the prescribed format, to be considered by the

Selection Committee for appointment as “Assistant Teacher†(Primary) (BTC). As per the terms of the advertisement as issued on 21st

September 2010, various other posts were also advertised, but since in the present Special Appeal the issue relates to the Assistant Teacher (Female)

(Primary) (BTC), we would be dealing with the controversy in relation thereto, to the said post. In terms of the advertisement, it provided that the

applications were being invited from eligible candidates, who have a degree of graduation from a recognised University or College and, should also

have a Training Certificate in BTC/B.Ed. The qualification as advertised provided as under:-

“eSFkksfMLV xYlZ bUVj dkyst

:M+dh ¼gfj}kj½

¼vYila[;d fo|kky;½

fo|ky; ds fuEu fyf[kr fjDr inksa ij fu;qDfr gsrq vgZ ,oa ;ksX; vH;fFkZ;ksa ls vkosnu i= vkeaf=r fd;s tkrs gSA

1 iz/kkukpk;Z ¼efgyk½ gkbZLdwy Lrj & ,d in

U;wure ;ksX;rk & fuEu ¼v½ ;k c es ls ,d&

¼v½ Hkkjr ls fof/k }kjk LFkkfir fdlh foâ€ofo|ky; ls LUkkrdksRrj mikf/k ds lkFk foâ€ofo|ky; dh ch0,M0 mikf/k ;k jkT; ljdkj ls ekU;rk izkIr

laLFkku ls ,y0Vh0 fMIyksek rFkk ekU;rkizkIr gkbZLdwyksa ;k bUVj dkystksa esa 06 o’kZ dk fâ€​k{k.k vuqHkoAÂ

¼c½ Hkkjr ds fof/k }kjk LFkkfir fdlh foâ€​ofo|ky; ls Lukrd dh mikf/kAÂ

2&foâ€​ofo|ky; dh ch0,M0 mikf/k ;k jkT; ljdkj ls

ekU;rk izkIr laLFkku ls ,y0Vh0 fMIyksekA

3& gkbZLdwy ls 08 o’kZ dk v/;kiu vuqHko ;k gkbZLdwy d{kkvksa esa 05 o’kZ d v/;kiu vuqHko ds lkFk tqfu;j d{kkvksa esa 07 o’kZ dk

vquHko ¼dqy U;wure 12 o’kZ dk vquHko½ ftlesa de ls de 05 o’kZ dk gkbZLdwy d{kkvksa esa v/;kiu vuqHko ;k tqfu;j gkbZLdwy esa

iz/kkuk/;kfidk ds :Ik esa 05 o’kZ dk

izkâ€​kklfud vuqHkoAÂ

U;qure vk;q&30 o’kZÂ

2& lgk;d v/;kkfidk ¼efgyk ,y0Vh0 xzsM½ ¼fo’k; lkekftd foKku½&,d in ih0ch0&2] osrueku 9300-00&34800-00 xzsM osru&4600-00

U;wure ;ksX;rk&lektâ€kkL=] bfrgkl] Hkwxksy] vFkZâ€kkL=] ukxfjdâ€kkL= esa ls fdUghsa nks fo’k;ksa ds lkFk fof/k }kjk LFkkfir Lukrd dh

mikf/k rFkk foâ€​okfo|ky; dh ch0,M0 mikf/k ;k jkT; ljdkj ls ekU;rk izkIr laLFkku ls ,y0Vh0 fMIyksekA

3&lgk;d v/;kfidk ¼efgyk½ lEc) izkbejh ch0Vh0lh0 osru dze & ikap in ih0ch0&2 osrueku&9300-00&34]800-00 xzsM osru&4200-00 U;wUre

;ksX;rk& fof/k }kjk LFkkfir fdlh foâ€ofo|ky; ls Lukrd dh mikf/k rFkk jkT; ljdkj ls ekU;rk izkIr csfld v/;kiu izfâ€k{k.k ikB;Øe

¼ch0Vh0lh0½@foâ€​ofo|ky; ch0,M0 mikf/kA

4& ifj/kkjd ¼iq:’k½ ch0ih0 &1 osrueku 4440-00&7440-00Â

                      xzsM osru&1300-00& in ,d

U;wUre ;ksX;rk & d{kk vkB

 vkosnu i= :0- 100-00 ds cSad Mªk¶V tks fd izcU/kd eSFkksfMLV xYlZ bUvj dkyst :M+dh ds inuke ls gksa vkSj Hkkjrh; LVSV cSad eq[;

“kk[kk :M+dh ls ns; gks] tek djus ij izR;sd dk;Z fnol dks izkr% 10-00 cts ls 1-00 cts rd izcU/kd dk;kZy; ls izkIr fd;s tk ldrs gSaA lHkh “kSf{kd]

izfâ€k{k.k ,oa vuqHko vkkfn vU; izek.k i=ksa dh Nk;k izfr;ka tks fd jktif=r vf/kdkjka s }kjk LR;kfir gks vkosnu ds lkFk layXu djsaA vkosnu i= foKkiu

dh frfFk ls 21 fnu ds vUnj dsoy iathd`r Mkd }kjk izkIr fd;sa tk;saxsaA vkosnu i= ds fyQkQs ds ckbZ vksj inuke ,oa nk;h vksj fo|ky; dk uke voâ€; vfdr

fd;k tk;saA

mijksDr lHkh inksa in “kSf{kd izfâ€k{k.k vkfn ;ksX;rk mŸkjk[k.M fo|ky;h fâ€k{kk vf/kfu;e 2009 esa of.kZr izko/kkuksa ds vuqlkj ekU; gksxh

rFkk osru o vU; HkŸks o vU; HkŸks jkT; ljdkj }kjk lHkh inksa in vuqekU;rk ds vuqlkj gksaxsaA

izcU/kdÂ

eSFkksfMLV xYlZ bUVj dkyst]

:M+dh ¼gfj}kj½â€​

It is not in dispute, rather it is admitted by parties to the lis, that the Institution run and managed by the Committee of Management, i.e. Methodist

Girls Inter College, Roorkee, District Haridwar, Respondent no. 5 to the Special Appeal No. 114 of 2015 “Smt. Bhawna Mathews & Ors. Vs.

State & Othersâ€, (which is being taken up as leading Appeal), is an aided recognised minority institution falling within the provisions u/s 38 of

Uttaranchal School Education Act, 2006.

(hereinafter to be referred as, ‘Act’).

It is the contention of the writ petitioner that in accordance with the qualification as advertised, since she being a Graduate and a holder of BTC

Training Certificate, having applied so, has preferential right to be considered for appointment as compared to B.Ed degree holders, which the

respondents were. It is her contention that in accordance with the qualification prescribed under the Regulations, it provides that the minimum

qualification required for a candidate to apply and participate in the selection process, is provided under Chapter II Regulation3 (d) and ([k). It is also

the contention of the writ petitioner that the candidature of the private respondents to the writ petition, who are the appellants before this Court, are

graduates and B.Ed degree holders, their candidature could have only been considered by the Selection Committee as constituted under the

Regulations, only in an eventuality when there was no candidate available having the minimum qualification prescribed i.e Graduation and a BTC

training certificate. What she attempts to submit is that since she was having prescribed statutory qualification, she will have precedence in

consideration of her candidature than that of the appellants who were B.Ed degree holders. Appellants could only be considered when she is

considered for appointment.

Case as projected by the writ petitioner is that she contends that since out of the total applications, which were received from the probable

candidates for participation in the selection process, since she was the only BTC training certificate holder available, she ought to have been given

preference in appointment over the appellants herein, for the reason that according to clause-3, their candidature could only be considered when the

BTC training certificate holder candidate is not available. For the purposes of brevity, the qualification clause as provided under Chapter II of the

Uttarakhand School Education Regulations, 2009 is quoted herein under:

**3- izkFkfed fo|ky; eas fu;qDr fd;s tkus okys v/;kidka gsrq vgZrk;sa fuEuor~ gksaxh&

d fof/k }kjk LFkkfir fdlh foâ€ofo|ky; ls Lukrd mikf/kA [k jkT; ljdkj }kjk ekU;rk izkIr csfld v/;kid izfâ€k{k.k ikB~;dze ¼ch0Vh0lh0½A

¼ch0Vh0lh0½ izfâ€kf{kr vH;FkhZ u feyus ij foâ€ofo|ky; dh ch0,M0 mikf/k ;k jkT; ljdkj ls ekU;rk izkIr laLFkku ls ,y0Vh fMIyksek/kkjh vH;FkhZ

ftUgsa vkoâ€​;d lsokjr izfâ€​k{k.k iznku fd;k tk;½A**

She specifically pleaded before the learned Single Judge that though she was qualified, her application was as per the norms, yet she was not

issued with the interview call letter, which otherwise the Management was bound to issue in view of the provisions contained under sub clause 2 (d) of

Regulation-17, as applicable to the aided minority educational institutions, those covered by Section 38 of the Act. It is the case of the writ petitioner

that when she learnt that the interview was being conducted on 31st December 2010 and her participation in interview has been deliberately avoided

by respondent no. 5, she on her own, visited the office of the Management and called upon the Committee of Management and requested them to

permit her to participate in the interview. On the said move, interview call letter was issued to her and permission was granted to her and she did

participate in the interview which was held on 31st December 2010. She submits that looking to the conduct of the respondent No. 5 since right from

the beginning, the respondent No. 5 intended to avoid the selection of the writ petitioner. They had avoided issuing call-letter to writ petitioner, so as to

appoint the present appellants, who were the B.Ed degree holders.

For the purposes of holding the selection process, the respondent No. 5 is said to have constituted a Selection Committee in accordance with the

provisions contained under sub Section (1) of Section 38 of the Act. On conclusion of the selection process, the writ petitioner contends that apart

from the fact she was not included in the select list, she was not given information about the result of the selection. For redressal of her grievance, it is

the case of the writ petitioner that she submitted an application under the RTI Act to collect the information about the result of the selection. She

submits that it was then only on receipt of information she could learnt for first time that the respondent had proceeded to pass the impugned order

dated 23rd March 2011, whereby they have issued a select list by virtue of which the appellants of Appeal No. 114 of 2015 and the Appellant of

Appeal No. 153 of 2015, are shown to have been appointed against 5 vacant posts of Assistant Teacher (Primary) (BTC), which was advertised by

respondent No. 5. In the writ petition, writ petitioner has raised a question pertaining to the anomalies which is alleged to have been committed in the

constitution of Selection Committee and the manner in which the marks were permitted to be assigned by the members of the Selection Committee,

which according to her was contrary to the Regulation. Hence to seek redressal of her grievance, she filed a representation before the respondents on

15th May 2011, praying that the approval granted for the appointment of appellants of Appeal No. 114 of 2015 and appellant of Appeal No. 153 of

2015, maybe turned down and she may be appointed as Assistant Teacher (Primary) (BTC). But, since no decision was taken on the same, thus she

had preferred the present writ petition with the following relief(s):

“i) Issue a writ, order or direction in the nature of certiorari quashing the impugned approval of the selection of the respondent nos. 6 to 10 dated

23.03.2011 passed by respondent no. 3 (contained as annexure no. 9 to this writ petition).

ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent nos. 1 to 5 to conduct afresh interview against the

advertised post in accordance with law.

iii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent nos. 3 to 5 to produce the entire record of selection

before this Hon’ble Court.

iv) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent no. 1 to initiate the departmental inquiry regarding

illegal selection of the respondent nos. 6 to 10.â€​

In the writ petition, when the cognizance was taken up by the learned Single Judge of this Court, notices were issued to the respondents of the writ

petition and they have filed their counter affidavits, denying the stand as taken by the writ petitioner. In the counter affidavit as filed by respondent No.

5 i.e. Management to the writ petition they have taken a stand that the writ petitioner was not eligible to be considered for appointment for the post on

the ground that she had not annexed the “No Objection Certificate†from her previous employer, because according to respondent No. 5, she was

working as Assistant Teacher in Government Primary School, Dugiyara, Chakrata, Dehradun, Respondent No. 5 submitted that call letter was not

issued to writ petitioner on account of non availability of ‘No Objection Certificate’ issued in her favour from her previous employer. Another

defence which was taken by the respondent No. 5 in the counter affidavit was that when the writ petitioner had been an unsuccessful candidate for

the reason that she has scored lesser marks in the merit as compared to the appellants of the present Appeal and as such since she having being

declared unsuccessful, she cannot raise an allegation against the decision of the Selection Committee, because, once a candidate participates in the

selection process, it would be deemed that the candidate was conscious of the procedure of selection and hence he or she may take a somersault,

questioning the propriety of the Selection Committee itself and decision taken thereof.Â

In the counter affidavit thus filed by respondent Nos. 1, 2 and 3 to the writ petition, they too, in para 5 and 6 have taken almost an identical stand

as that of respondent No. 5. They submitted that rather the decision taken by the Selection Committee was rightly made and the approval granted to

the appointment of respondent nos. 6 to 10, suffers from no error, nor was contrary to the process of selection contemplated under the Regulation

which could call for interference by this Court in the exercise of its writ jurisdiction under Article 226 of Constitution of India.Â

The writ petition, after the exchange of the pleadings proceeded on merits and has been allowed by the judgment impugned in appeal dated 4th

September 2014. The present appellants, as revealed from records seems to have filed a Review Application, before the learned Single Judge on 19th

February 2015, praying for review of the impugned judgment in appeal dated 4th September 2014 on the premise that they could not gather the

knowledge of the pendency of the writ petition and the judgment dated 4th September 2014, was passed ex parte by the learned Single Judge of this

Court. They submitted in the delay condonation application filed in support to the review application that they learnt about the judgment dated 4th

September 2014 for the first time only on 23rd January 2015, when they were served with the order passed by the respondent No. 5 on 21st January

2015 (Annexure 3 to the review application). The review application came up for consideration before learned Single Judge on 3rd March 2015, and

the same did not find favour and has been dismissed on 03.3.2015. Consequently, the present Special Appeal challenging the judgment dated 4th

September 2014.

Learned Single Judge, while passing the order dated 3rd March 2015 on the Review Application, has observed that the Court had issued due and

proper notices to respondent Nos. 5 to 10 of the writ petition and as per the office report which shows that the respondent No. 5 to 10 have been duly

served, as service was reported to be satisfactory and yet they have chosen not to contest the petition and hence the Writ Court direct the matter to

proceed ex parte, thus the learned Single Judge found that there is no anomaly in the judgment dated 4th September 2014, sought to be reviewed on

account of the fact that the present appellants, who were the respondents in the writ petition had chosen not to contest the writ on merits.

Hence the appellants have preferred the present special appeal for the following relief:-

“It is therefore, most respectfully prayed that this Hon’ble Court may be pleased to allow this Special Appeal and set aside impugned order

dated 04-09-2014 and order dated 03-03-2015 passed by the Hon’ble Single Judge of this Hon’ble Court in Writ Petition No. 500 of 2011

(S/S), titled as Kavita Saini Vs. State of Uttarakhand and others, and review application no. 113 of 2015 filed by the present appellants and dismiss the

writ petition of petitioner/respondent no. 6, otherwise the appellants shall suffer irreparable loss and injury.â€​

Primarily, the grounds which have been agitated by the appellants to the appeal for challenging the impugned judgment are:

i) There was no notice served on them prior to 4th September 2014.Â

ii) They could get the knowledge of the judgment dated 4th September 2014 only by the order passed by the Chief Education Officer. iii) Judgment

dated 4th September 2014 is without a contest raised by them.Â

iv) Even the management has not informed about the pendency of the proceedings though they have already put in appearance in the writ petition.

v) They further denied that there was any endorsement made by them signifying the acceptance of the notices issued by this Court.

vi) They submitted that the view taken by the learned Single Judge that in the selection process, the provisions of Uttarakhand School Education

Regulation 2009 was not followed is erroneous based on misinterpretation of the regulation and procedure contained therein.

vii) They stressed upon the impact of Section 38 of Uttarakhand School Education which deals with the provisions of savings as to the minority

institutions.

viii) They took a ground that the procedure for appointment of Assistant Teacher in a primary school teacher in an aided minority institution is different

than that of the other institutions, other than minority.

ix) They took a ground that the procedure contemplated for appointment of Assistant Teacher in a primary school as given in Appendix-D is only

applicable to the institutions other than minority institutions as it relates to the process of appointment contemplated under Regulation 10.

x) They took a ground that Section 38 of the Act starts with a non obstinate clause and would operate independently without being affected except for

the provisions contained under sub Section (4) of Section 36 and Section 37 of the Act.

The argument of the learned counsel for the writ petitioner/respondent is that in view of the qualification clause, as stipulated under the

Regulations, the petitioner would be having a right of precedence to be considered since she being the only candidate available, who was qualified in

accordance with the Regulation, since she was a graduate and was holding a BTC

Training Certificate. She contends that if any right accrues to the respondent in the writ petition for being selected or considered for selection, it would

be only after she is considered and granted an appointment as being only available candidate qualified. Until and unless her case is considered, the

case of the respondent will not mature and fall within the purview of consideration under the Regulations. After the exchange of the pleadings, the

learned Single Judge by the impugned judgment had allowed the writ petition and had set aside the appointment of the appellants, which is impugned in

the present appeal. The learned Single Judge, while recording its finding pertaining to the Elementary Educational Qualification required and as

contemplated under Appendix ‘A’, which pertains to the teacher of Primary School though has held that it contemplates that a candidate should

be a graduate from a recognised university established under law and should be a BTC. The learned Single Judge, however aptly takes note of the

fact that the candidates having the B.Ed or L.T qualification are not excluded but are to be considered only when there is no other candidate available,

having a graduation and BTC training certificate. However, the learned Single Judge, while considering the writ petition, took the view that

irrespective of the qualification contemplated under the Appendix ‘A’, there has had to be an allocation of quality point marks for each

candidate participating in selection as contemplated as Appendix ‘D’, for determining the eligibility of a candidate and it was based on the said

premise the learned Single Judge had taken the view that the procedure of allocation of quality point marks contemplated under Appendix ‘D’

was to be followed for each candidate, which the learned Single Judge held since was not done it would render the selection process of

Appellant/respondent to the writ petition as defective and quashed the selection of appellants and allowed the Writ Petition.Â

Based on the submission of the petitioner, the learned Single Judge took the view that the arguments as extended to the effect that there had been

procedural violation of Regulation as the candidature was not considered as per Appendix ‘D’ and the B.Ed candidates have been wrongly

selected. The learned Single Judge further based the judgment and observed that according to the arguments extended by the learned counsel for the

petitioner that the marks had not been evaluated as per the guidelines framed by the Uttarakhand School Education Regulations, 2009, because as a

matter of fact, no marks have been given on the basis of academic records, hence has held that the selection process was faulty and the appellants

could not have been appointed.

On scrutiny of the impugned judgment it reflect that the learned Single Judge has taken a view that despite of the fact that the Institution of

respondent No. 5, though admittedly being a minority institution has protection under Article 30 of the Constitution of India, but has held the said

protection as contemplated therein does not exclude the assessment of the qualification of the candidates by applying the procedure in terms of the

provisions contained under sections 36 and 37 of the Uttaranchal Education Act 2006 and the view which has been expressed by the learned Single

Judge that the remaining Regulation pertaining to scrutiny of eligibility of candidates by allocation of quality point marks based on the qualification

would be applicable as it relates to determination of merits of a candidate and hence held that the appointment of the appellants in the absence of the

allocation of quality point marks would be faulty and contrary to procedure.

Even before the learned Single Judge, it had been the case of the appellant, that despite of the fact that the institution being a grant-in-aid

recognised minority institution, yet, the argument of learned counsel for the petitioner that the Regulations pertaining to the allocation of quality point

marks would be applicable is totally wrong. We feel and will deal elaborately at later part of this judgment that this reason assigned by learned Single

Judge that irrespective of the institution being a recognised minority institution, still the view expressed that the quality point marks as contemplated

under Appendix ‘D’ was to be assigned is contrary to the Act and Regulations contained therein. We would now proceed to consider this

aspect as to whether the assignment of quality point marks as contemplated under Appendix ‘D’ would be applicable to the minority institutions

or not. The analogy assigned by the learned Singe Judge for allowing the writ petition and setting aside the selection of the appellant is based on the

rationale that the respondents failed to establish that the candidates, who participated in the selection process, there had been any evaluation of marks

as per the Appendix ‘D’.

The learned Single Judge by the impugned judgment dated 4th September 2014, while allowing the writ petition filed by respondent No. 6/writ

petitioner challenging the selection of present appellants had taken a view as recorded in its paras 16 and 17, which is quoted hereunder:

“16. The petitioner has been able to establish that the regulations which have been framed under Section 24 of the Uttaranchal School Education

Act, 2006 is applicable in a minority institution, such as respondent no. 5, it is absolutely clear that Sections 36, 37 and 38 of the Uttaranchal School

Education Act, 2006 and more particularly the conditions laid down in the Regulations have been clearly violated.

17. The Regulations, inter alia, clearly provides that it is BTC qualified candidates who have to be considered for the post of Assistant Teacher in

elementary school and B.Ed. qualified candidates will only be considered in case of non availability of BTC qualified candidates. Since the petitioner

was the only BTC qualified candidate, her candidature was liable to be considered and she was liable to be appointed on that post, subject to her

other qualifications and performance in the interview. Moreover, out of all the candidates who have been appointed, none is BTC qualified, rather they

all are B.Ed. qualified. From the above circumstances, it is abundantly clear that the entire selection process is vitiated. There is nothing on record to

show that any of the candidates have been evaluated on the basis of marks obtained in High School, Intermediate, Graduation and Post-Graduation.

They have been given total marks out of 500 marks for the viva-voice/interview alone whereas under the regulations only 25 marks are to be given for

the vivavoice/interview.â€​

The learned Single Judge held that in view of the provisions contained under the Uttaranchal School Education Act, 2006, as applicable to the Minority

Institution, in particular under Section 38, the provisions of Sections 36 and 37 had been violated. The learned Single Judge in the impugned judgment,

while considering the impact of Section 38 of the Act, has not considered the impact of interplay of Regulation 10 and 17 over the selection process in

a recognize aided minority institution.

The provisions of Uttaranchal School Education Act, 2006, which stipulates with the procedure to be resorted by Management for having recourse

to the appointment of the Primary Assistant teachers of the minority institution is contemplated u/s 38 of the Act. Section 38 of the Uttaranchal School

Education Act, 2006, reads as under:-

“38. Savings as to minority institutions:- (1) Notwithstanding anything in sub-section (4) of Section 36 and in Section 37, the Selection Committee

for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article

30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management.

Provided that one of the members of the Selection Committee shall-

(a) In the case of appointment of the Head of an institution, be an expert selected by the Committee of Management from a panel of experts prepared

by the Director:

(b) In the case of appointment of a teacher, be the Head of the Institution concerned.

(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.

(3) No person selected under this selection shall be appointed, unless-

(a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Additional Director of Education; and

(b) in the case of a teacher such proposal has been approved by the District Education Officer.

(4) The Regional Additional Director of Education or the District Education Officer, may be, shall not withhold approval for the selection made under

this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible.Â

(5) Where the Regional Additional Director of Education or the District Education Officer, as the case may be, does not approve a candidate selected

under this section the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the

Director in the case of the Head of Institution, and to the Regional Additional Director of Education in the case of teachers.

(6) Every order passed by the Director or the Regional Additional Director of Education on a representation under sub-section (5) shall be final.â€​

Under sub Section (1) of Section 38 of the Uttaranchal School Education Act, 2006, as applicable to Minority Institution, it starts with a non-

obstinate clause and by virtue of language used in the section, only sub Section (4) of Section 36 and Section 37 has been excluded, so far it relates to

the procedure of selection of teachers in an Aided Minority Intuitions are concerned. Section 36 of the Act in general in itself provides with a

procedure to be followed for selection of the teachers and Head of the institution in relation to the intuition other than the minority institutions.Â

For selection in an aided minority institution Regulation 17 contemplates complete procedure which is quoted hereunder:-

**17- /kkjk 38 esa fufnZ’V fdlh ekU;rk izkIr laLFkk esa lh/kh HkrhZ }kjk laLFkk ds iz/kku vkSj v/;kidksa dh fjfDr dks Hkjus ds fy, fuEufyf[kr

izfdz;k gksxh%& ¼d½ izcU/kkf/kdj.k }kjk lh/kh HkrhZ ls Hkjh tkus okyh fjfDr;ksa dh la[;k vo/kkfjr fd, tkus ds i'pkr laLFkk ds izca/kd }kjk de ls

de ,d fgUnh vkSj ,d vaxszth nSfud lekpkj&i= esa ftudk jkT; esa i;kZIr ifjpkyu gks] in foKkfir fd, tk;saxs ftlesa fjfDr;ksa ds izdkj ¼vFkkZr~ vLFkk;h

gSa ;k LFkk;h½ rFkk fjfDr;ksa dh la[;k] in dk fooj.k ¼vFkkZr~ iz/kkukpk;Z ;k iz/kkuk/;kid] izoDrk ,y0Vh0 ;k ch0Vh0lh0 Js.kh ds v/;kid rFkk ,slk

;k ,sls fo’k; ftlesa ;k ftuesa izoDrk ;k v/;kid dh vkoâ€;drk gks½] osrueku vkSj vU; HkRrs] visf{kr vuqHko] in ds fy, fofgr U;wure vgZrk vkSj

U;wure vk;q ;fn dksbZ gks] ds laca/k esa fooj.k fn, tk;saxs vkSj ,slk fnukad ¼tks lk/kkj.kr;k foKkiu ds fnukad ls rhu lIrkg ls de u gksuk pkfg,½ ftl

rd izca/kd }kjk vkosnu&i= fy, tk;saxs fofgr fd;k tk;sxkA lkFk gh lkFk foKkiu dh ,d izfr lacaf/kr ftyk fâ€k{kk vf/kdkjh dks Hksth tk;sxhA laLFkk ds

iz/kku ds in ds laca/k esa foKkiu dh izfr lacaf/kr eaMyh; vij fâ€​k{kk funsâ€​kd dks Hkh Hksth tk;sxhA

fVIi.kh & ¼1½ v/;kidksa vkSj laLFkk ds iz/kku ds inksa dh leLr fjfDr;k¡ tks foKkiu ds le; fo|eku gksa] foKkfir dh tk;sxhA

¼2½ dksbZ u;k in foKkfir ugha fd;k tk;sxk tc rd fd izca/kkf/kdj.k }kjk mlds l`tu ds fy, leqfpr izkf/kdkjh dh Lohd`fr izkIr u dj yh tk;A ¼[k½

izca/kkf/kdj.k }kjk lHkh vkosnu&i= fofgr izi= esa fy, tk;saxs vkSj mlesa vgZrk;sa] fâ€k{k.k vuqHko vkSj vU; fdz;k&dykiksa ds laca/k esa leLr

vkoâ€;d fooj.k gksaxs vkSj mlds lkFk leLr vkoâ€;;d izek.k&i=ksa vkSj izâ€klk&i=ksa dh izekf.kr izfr;ka gksaxhA izca/kkf/kdj.k vkosnu&i= ds fy, izi=

dk ewY; tks fofu;e 10 ds [k.M ¼d½ esa fufnZ’V /kujkfâ€​k ls vf/kd u gks] ys ldrk gSA

¼x½ fdlh laLFkk esa fu;ksftr vkSj vU;= ;k mlh laLFkk esa fdlh in ds fy, vkosnu djus okys o;fDr dk vkosnu&i= mlds fu;kstd }kjk jksdk ugha tk;sxk

cfYd mls laca) izkf/kdkjh dks rqjUr vxzlkfjr fd;k tk;sxkA

¼?k½ vH;fFkZ;ksa ls izkIr leLr vkosnu&i= dzekuqlkj la[;kfadr vkSj jftLVj esa ntZ fd, tk;saxs] vkSj vH;fFkZ;ksa ds fooj.k leqfpr LrEHkksa esa

vafdr fd, tk;saxsA izR;sd in ds fy, lk{kkRdkj ds fy, cqyk;s tkus okys vH;fFkZ;ksa dh la[;k ;fn ¼vkosndksa dh la[;k mruh gks½ lkr gksxhA izca/kd]

p;u flfefr ds leLr lnL;ksa rFkk leLr ,sls vH;fFkZ;ksa dks tks lk{kkRdkj ds fy, cqyk;s tk;sa] p;u djus ds de ls de nks lIrkg iwoZ p;u dk fnukad] le; vkSj

LFkku dh lwpuk jftLVMZ Mkd }kjk nsxkA p;u lfefr rn~uqlkj p;u djsxhA ;fn fdlh vifjgk;Z dkj.koâ€k /kkjk&38 dh mi/kkjk ¼1½ ds ijUrqd ds [k.M

¼d½ ds v/khu izcU/k lfefr }kjk p;u fd;k x;k foâ€ks’kK fu/kkfjr fnukad dks p;u esa mifLFkr u gks lds rks p;u lfefr dh cSBd LFkfxr dj nh

tk;sxhA ;fn lk{kkRdkj ds fy, mifLFkr vH;fFkZ;ksa dh la[;k 03 ls de jgrh gS rks lk{kkRdkj LFkfxr dj fn;k tk;sxk vkSj mlds fy, lHkh vH;fFkZ;ksa dks

lwfpr djrs gq, nwljk fnukad fu/kkZfjr fd;k tk;sxkA

¼³½ fofu;e 10 ds [k.M ¼³½ vkSj ¼p½ ds vkSj fofu;e 11]12 rFkk 16 ds micU/k vkoâ€;d ifjorZu lfgr] bl fofu;e ds v/khu fd, x, p;u ij ykxw

gksaxsA ¼p½ izR;sd e.My ds fy, funsâ€kd }kjk foâ€ks’kKksa dh ,d&,d ukfedk ftlesa fofu;e 14 esa fufnZ’V izoxZ ls pqus x, 15 ;k vf/kd

O;fDr gksaxs] rS;kj dh tk;sxh vkSj mls lEc) e.Myh; vij fâ€k{kk funsâ€kdksa ds ikl Hkst fn;k tk;sxkA e.Myh; vij fâ€k{kk funsâ€kd izcU/kkf/kdj.k ls

foâ€ks’kKksa ds uke Hkstus dk vuqjks/k izkIr gksrs gh mDr ukfedk esa ls rhu foâ€ks’kKksa ds uke eqgjcUn vkoj.k esa izcU/kkf/kdj.k dks

mlds izcU/kd ds ek/;e ls lalwfpr djsxkA foâ€ks’kKksa dh e.Myh; ukfedk rc rd fof/kekU; jgsxh tc rd fd mlds LFkku ij dksbZ ubZ ukfedk u j[kh

tk;AÂ

¼N½ fdlh in ds fy, leLr vH;fFkZ;ksa dk lk{kkRdkj dj fy, tkus ds iâ€pkr~ p;u lfefr dk lHkkifr fd, x, p;u dh dk;Zokfg;ksa ij nks izfr;ksa esa ,d fVIi.kh

rS;kj djk;sxk ftlesa pqus x, vH;fFkZ;ksa ds uke rFkk izrh{kk lwph ds nks vU; vH;fFkZ;ksa ds uke mfYyf[kr fd, tk;saxsA bl izdkj rS;kj dh x;h fVIi.kh ij

p;u lfefr ds lHkkifr rFkk vU; lnL; gLrk{kj djsaxs vkSj viuk&viuk iw.kZuke] inuke vkSj irk rFkk fnukad mfYyf[kr djsaxsA lHkkifr bl fVIi.kh dh ,d izfr

rFkk fofu;e 10 ds [k.M ¼p½ esa fufnZ’V fooj.k dh izfr /kkjk 38 ds v/khu ;Fkk visf{kr vuqeksnu ds fy, ;FkkfLFkr] e.Myh; viu fâ€k{kk

funsâ€kd ;k ftyk fâ€k{kk vf/kdkjh dks rqjUr vxzlkfjr djsxkA lacaf/kr vfHkys[kksa ds izkIr gksus ds fnukad ds nks ekg ds Hkhrj] ;FkkfLFkfr] e.Myh;

vij fâ€​k{kk funsâ€​kd ;k ftyk fâ€​k{kk vf/kdkjh] mu ij viuk fu.kZ; nsaxs vkSj ,slk u djus ij vuqeksnu iznku dj fn;k x;k le>k tk;sxkA**

Under clause (2) ‘e’ of Regulation-17 which is quoted hereunder:

**17 ¼2½¼³½ fofu;e 10 ds [.M ¼M½ vkSj ¼p½ ds vkSj fofu;e 11 12 rFkk 16 ds micU/k vkoâ€;d ifjoZru lfgr] bl fofu;e ds v/khu fd,

x, p;u ij ykxw gksaxsaA**Â

By virtue of Regulation 17 (2) (e) as applicable to the minority institutions, only provisions of clauses (2) ‘e’ and (2) ‘f’ of Regulation-10

and those of Regulations-11, 12 and 16 have been made applicable to the selection process contemplated under the Regulation-17, relating to institution

referred under section 38 i.e. Aided Minority Institution. Regulation-11 as has been made applicable by Regulation 17(2)(e) to recognized minority

aided institutions under section 38 is quoted hereunder:

**11- ¼1½ fdlh laLFkk ds iz/kku ;k v/;kid ds p;u esa mifLFkr foâ€ks’kKksa dk ;g drZO; gksxk fd os p;u ls lEcfU/kr lHkh dkxt&i=ksa dh

Nku&chu djsa vkSj foâ€ks’k :Ik ls ;g ijh{k.k djs fd lk{kkRdkj ds fy, cqyk;s x, vH;fFkZ;ksa dks vf/kfuf;e vkSj fofu;eksa ds micU/kksa ds vuqlkj bl

izdkj Bhd rkSj ls cqyk;k x;k vkSj ;g fd fdlh vH;FkhZ dks lk{kkRdkj ds ,sls volj ls oafpr rks ugha j[kk x;k tks mls mfpr jhfr ls feyuk pkfg, FkkA os

ifjfâ€k’V ^x^ esa fooj.k esa ;Fkk izLrkkfor p;u dh dk;Zokfg;ksa esa bl vkâ€k; dk ,d izek.k&i= nsaxsA ;fn os ;g vuqHko djsa fd fdlh vH;FkhZ dks

fdlh =qfV ;k pwd ds QyLo:Ik lk{kkRdkj ds fof/k laxr volj ls oafpr j[kk x;k gS rks os ekeys ds iwjs C;ksjs ds lkFk ftyk fâ€k{kk vf/kdkjh dks lwfpr

djsaxsA ;fn ftyk fâ€k{kk vf/kdkjh dk ;g lek/kku gks tk; fd blls lk{kkRdkj dh dk;Zokfg;ka nwf’kr gks x;h gS rks og lk{kkRdkj dh dk;Zokfg;ksa dks

vd`r vkSj “kwU; ?kksf’kr dj nsxk vkSj ,sls ekeyksa esa fQj ls p;u djus ds fy, vknsâ€k nsxkA bl lEcU/k esa ftyk fâ€k{kk vf/kdkjh ds vknsâ€k

vfUre vkSj lHkh lEcfU/kr O;fDr;ksa ds fy, vkc)dj gkaxsaA**

It provides that the experts of the Selection Committee as constituted u/s 38 of the Act, in relation to minority institutions are duty bound and will

scrutinize all the papers of the candidates and will ensure that no candidate, who is eligible under regulation is deprived of an opportunity to participate

in the selection process, and it is upon this participation, the members of Selection Committee are required to furnish a certificate to this effect in form

of Appendix ‘C’.Â

The certificate by way of Appendix ‘C’, provided in Regulation 11 as made applicable in relation to aided minority institution is given by the

selection committee to District Education Officer is a document to fortify the conclusion of a valid selection as per the regulation. Furthermore, by it all

the documents thus forwarded by the selection committee constituted by Management has to be preserved by the selection committee, on simple

analogy that Appendix ‘C’ as applicable in a recognized aided minority institution is a conclusive proof of a valid selection. Appendix ‘C’

in itself does not contemplate allocation of any quality point marks. Thereby it could be concluded that in a minority institution falling within the ambit

of u/s 38, in which a selection of Assistant Teacher (Primary) (BTC) is held it does not contemplate allocation of quality point marks in the manner as

applicable to other institutions falling under the processes provided u/s 36 over the institutions other than aided minority institutions, whose procedure

for selection is exclusively provided under Regulation-10, which attracts Appendix ‘D’ as provided under Regulation 10(2)(b) and 10(2)(d),

which are quoted hereunder:-

**10 ¼2½¼[k½ vkosnu dk izi= ,slk gksxk tSlk fd funsâ€kd }kjk vuqeksfnr fd;k tk;A vkosnu i= ds lkFk in ds fy, fofgr U;wure vgZrk] vf/kekuh

vgZrk vkSj U;wure vk;q ;fn dksbZ gks] ds lecU/k esa foLr`r fooj.k tSlk v/;k;&nks ifjfâ€​k’V&?k esa fu/kkZfjr gS] layXu fd;k tk;sxkA

10¼2½¼?k½ ikzIr fd, x, vkosnu&i= ftyk fâ€​k{kk vf/kdkjh ds dk;kZy; esa funsâ€​kd }kjk vuqeksfnr izi= Ikj j[ks x, jftLVj esa Øekuqlkj la[;kafdr

vkSj izfo’V fd, tk;saxs vkSj vH;fFkZ;ksa ds fooj.k izR;sd vH;FkhZ }kjk xq.k&fo’k;d izkIrkadksa ds lkFk leqfpr LrEHkksa ds vUrxZr ntZ fd,

tk;saxsA izR;sd vH;FkhZ dk xq.k&fo’k;d vad ifjfâ€k’V ^?k^ esa vfHkdfFkr ekun.M ds vuqlkj vf/kekur;k ftyk fâ€k{kk vf/kdkjh }kjk bl iz;kstu

ds fy, fu;qDr fd, x, dk;Zjr vFkok lsokfuo`Ÿk fâ€k{kk foHkkx ds jktif=r vf/kdkfj;ksa ;k iz/kkukpk;ksaZ ;k mikf/k egkfo|ky;ksa ;k foâ€ofo|ky; ds

v/;kidksa ;k laLFkk ds lsokfuo`Ÿk iz/kkuksa }kjk fn, tk;saxs vkSj bldh tk¡p ftyk fâ€k{kk vf/kdkjh ;k mlds }kjk foHkkx ds bl fufefŸk izfkf/kd`r fdlh

vf/kdkjh }kjk dh tk;sxhA bu vkonsu&i=ksa dks foKkiu esa vkosnu&i= izkfIr ds fy, foKkfir vafre fnukad ls ikap fnu dh lekfIr ds Ikâ€pkr~ izcU/k lfefr

}kjk rhu fnu ds Hkhrj ftyk fâ€k{kk vf/kdkjh ds dk;kZy; ls laLFkk ds izcU/kd ds ek/;e ls laxzghr fd;k tk;sxkA ,slk u djus ij] ftyk fâ€k{kk vf/kdkjh

vkosnu&i=ksa dks lEcfU/kr laLFkk ds izcU/kd dks fHktok nsxkA izcU/kkf/kdj.k Hkh blh izdkj dk ,d jftLVj j[ksxkA lk{kkRdkj ds fy, cyq k;s tkus okys

vH;kfFkZ;ksa dk p;u muds }kjk xq.k&fo’k;d izkIrkadksa ds vuqlkj fd;k tk;sxkA izR;sd in ds fy, lk{kkRdkj ds fy, cqyk;s tkus okyksa dh la[;k

¼;fn vkosndksa dh la[;k mruh gks½ lkr gksxh] izfrcU/k ;g gS fd ;g la[;k ,sls vH;kfFkZ;ksa dks volj iznku djus ds fy, cLFkkuksa esa leku xq.k&fo’k;d vad izkIr djsaA ftyk fâ€​k{kk vf/kdkjh p;u djus ds fy, ,sls fnukad le; vkSj LFkku tSlk fd mlds }kjk fu/kkZfjr fd;k tk;]

dh lwpuk ,sls fnukad ds de ls de nks LkIrkg iwoZ izcU/k lfefr dks mlds izcU/kd ds ek/;e ls HkstsxkkA lwpuk izkIr gksus ij izcU/kd “kh?kz gh

foâ€ks’k;ksa ls fHkUu p;u lfefr ds vU; lnL;ksa dks lwpuk Hkstsxk vkSj Lkk{kkRdkj ds fy, p;fur lHkh vH;fFkZ;ksa dks ,sls p;u ds de ls de nks

LkIrkg iwoZ jftLVªhd`r Mkd }kjk lk{kkRdkj&i=d tkjh djsxk ftlesa p;u fd, tkus dk fnukad] le; o LFkku fofufnZ’V fd;k tk;sxkA p;u lfefr rn~uqlkj

p;u djus ds fy, viuh cSBd djsxhA ftyk fâ€k{kk vf/kdkjh ;FkkfLFkfr /kkjk 37 dh mi/kkjk&¼1½ ;k ¼2½ ds [k.M rhu ds v/khu uke&fufnZ’V

foâ€ks’kKksa dks laLFkk dh lwpuk ,sls fnukad ds Ik;kZIr le; iwoZ HkstsxkA ;fn fdlh vifjgk;Z dkj.k ls dksbZ foâ€ks’kK p;u djus ds fy,

fu/kkZjfr fnukad dks mifLFkr u gks lds rks ftyk fâ€k{kk vf/kdkjh rqjUr gh izrh{kk lwph esa ls foâ€ks’kK dk izcU/k djsxkA nks foâ€ks’kKksa

dh vuqifLFkfr esa p;u lfefr dh cSBd LFkfxr dj nh tk;sxh vkSj mlds fy, nwljk fnuakd fu/kkZfjr fd;k tk;sxkA ;fn lk{kkRdkj ds fy, mifLFkr vH;fFkZ;ksa

dh la[;k 03 ls de jgrh gS rks lk{kkRdkj LFkfxr dj fn;k tk;sxk vksj mlds fy, lHkh vH;fFkZ;ksa dks lwfpr djrs gq, nwljk fnukad fu/kkZfjr fd;k

tk;sxkA**Â

Under sub-Section (2) of Section 38 of the Act, as applicable to a minority institution, it provides the procedure to be followed by the Selection

Committee, under sub Sections (1) and (2) of Section 38 shall be/as may be prescribed under the Regulation. On conclusion of the Selection as per the

Regulation-17, made applicable in relation to the minority institution. In view of the applicability of sub clause (f) of Regulation-10 as made applicable

by clause 2(e) of Regulation-17, the statement of copies of marks and qualifications is required to be given in Appendix ‘C’, which itself does

not contemplate allocation of quality point marks for selection of Assistant Teacher in Minority Institution. 10(2)(f) is quoted hereunder:

**¼p½ izca/k lfefr }kjk ifjfâ€k’V **x** esa fn, x, izi= esa ,d fooj.k&i= ¼6 izfr;ksa eas½ rS;kj djk;k tk,xk ftlesa lk{kkRdkj ds fy, cqyk, x,

izR;sd vH;FkhZ dk uke] mldh vgZrk;sa vkSj mlds lEcU/k esa vU; fooj.k fn, tk,axs vkSj mUgsa lk{kkRdkj ds le; ij p;u lfefr ds izR;sd lnL; ds le{k j[kk

tk,xkA lHkh vkosnu&i= ftlds vUrxrZ ,sls vH;fFkZ;ksa ds vkosnu&i= Hkh gSa ftUgsa lk{kkRdkj ds fy, u cqyk;k x;k gks] [k.M ¼?k½ esa

fufnZ’V laLFkk }kjk j[kk x;k jftLVj] p;u lfefr ds lnL;ksa dks Hksts x, lHkh i=ksa dks vkSj lHkh lk{kkRdkj i=dka dh dk;kZy; izfr;ksa dks Hkh]

ftlesa mls jftLVªhd`r Mkd }kjk Hksts tkus dh Mkd[kkus dh jlhn vkSj izkfIr Lohd`fr] ;fn dksbZ gks] lfEefyr gS] izcU/kkf/kdkj.k

}kjk laLFkk ds ek/;e ls p;u lfefr ds le{k j[kk tk,xkA**Â

On the reading of Regulation 10(2)(f), it specifically yet again excludes applicability of Appendix ‘D’, as Committee of Management has to

prepare Appendix ‘C’ to be placed before Selection Committee.

From a scrutiny of Appendix ‘C’, it is apparent that, it is only a tabulation of the particulars of a candidate, who had participated in selection

before the Selection Committee as constituted u/s 38(1) and it is Appendix ‘C’ only, which has been made applicable in relation to the

appointment of teachers in an aided minority institution. Non-mentioning of applicability of Appendix ‘D’ in a Selection for Minority Institution

would mean its specific exclusion from its applicability in selection of Assistant Teacher in a Minority Institution. Meaning thereby, on harmonious

reading of Regulation-17, pertaining to the selection process and in accordance with the procedure prescribed in sub clause 2(f) of Regulation-10, it is

only Appendix ‘C’, which has been made applicable on the minority institutions. Whereas in accordance with clause 2(d) of Regulation-10,

which deals with the selection process of the teachers of an institution other than the minority institutions, which has been excluded from its

applicability by Regulation 17(2)(e) on a minority institution as the same does not find reference in regulation 17(2)(e), which attracts certain provisions

of Regulation 10 over minority institutions, thus the procedure of selection on its conclusion, under sub clause 2(d) of Regulation 10 is the only

provision prescribed which provides the assignments of quality point marks to each candidates which has to be laid down in the form of Appendix

‘D’. Clause 2(d) of the Regulation-10, as exclusively made applicable on the institutions other than aided minority institutions is quoted

hereunder:

**¼?k½ izkIr fd, x, vkosnu&i= ftyk fâ€k{kk vf/kdkjh ds dk;kZy; esa funsâ€kd }kjk vuqeksfnr izi= ij j[ks x, jftLVj esa dzekuqkj la[;kafdr vkSj

izfo’V fd, tk;saxs vkSj vH;fFkZ;ksa ds fooj.k izR;sd vH;FkhZ }kjk xq.k&fo’k;d izkIrkadks ds lkFk leqfpr LrEHkksa ds vUrxZr ntZ fd,

tk;saxsA izR;sd vH;FkhZ dk xq.&fo’k;d vad ifjfâ€k’V *?k* esa vfHkdfFkr ekun.M ds vuqlkj vf/kekur;k ftyk fâ€k{kk vf/kdkjh }kjk bl iz;kstu

ds fy, fu;qDr fd, x, dk;Zjr vFkok lsokfuo`r fâ€k{kk foHkkx ds jktif=r vf/kdkfj;ksa ;k iz/kkukpk;ksaZ ;k mikf/k egkfo|ky;ksa ;k foâ€ofo|ky; ds v/;kidksa

;k laLFkk ds lsokfuo`Rr iz/kkuksa }kjk fn, tk;saxs vkSj bldh tk¡p ftyk fâ€k{kk vf/kdkjh ;k mlds }kjk foHkkx ds bl fufeRr izkf/kd`r fdlh vf/kdkjh }kjk

dh tk;sxhA bu vkosnu&i=ksa dks foKkiu esa vkosnu&i= izkfIr ds fy, foKkfir vafre fnukad ls ikap fnu dh lekfIr ds i'pkr izcU/k lfefr }kjk rhu fnu ds

Hkhrj ftyk fâ€k{kk vf/kdkjh ds dk;kZy; ls laLFkk ds izcU/kd ds ek/;e ls laxzghr fd;k tk;sxkA ,slk u djus ij] ftyk fâ€k{kk vf/kdkjh vkosnu&i=ksa dks

lacaf/kr laLFkk ds izca/kd dks fHktok nsxkA izca/kkf/kdj.k Hkh blh izdkj dk ,d jftLVj j[ksxkA**

Even under sub-section (2) of Section 38 contemplates resorting to the procedure as ‘prescribed’ which means prescribed by regulation.

The Regulations have specifically excluded the applicability of Appendix ‘D’, which is the only provision which deals with the allocation of

quality point marks from its applicability to the minority institution, for which the Selection Committee is only required to provide the certificate and

furnish the statements under Regulation-11 to be read with Regulation 10 (2)(f), in Form Appendix ‘C’. We are of the view that Appendix

‘C’, as applicable, in an aided minority institutions for the purposes of appointment of Assistant Teacher (Primary) (BTC) by virtue of

Regulation-10 (2) (f), read with Regulation-11, does not contemplate an assignment of quality point marks for the selection process as made applicable

to the minority institutions under procedure prescribed by Regulation 17. It is quite apparent that the legislature intended in its specific terms to provide

a special and distinct status to the Minority Institution recognised and aided under the Act and Regulations framed there under in the matters of

appointment of Assistant Teachers (Primary) (BTC). As a matter of fact and for the above reasons law in its terms had provided freedom in selection

so far it was to be made in minority aided institutions and hence has based the appointment to be made on the decision of the selection committee and

the certificate provided by way of Appendix ‘C’ to the Management.Â

It is also necessary to take note of the impact of sub Section (4) of Section 38 of the Act, which as per the language used in it, provides that on a

recommendation being made by the Chairman of the Selection Committee to the Regional Additional Director of Education or the District Education

Officer, in the manner as provided under Regulation-17 2(g), after the selection has been made by the Committee constituted u/s 38(1), the authority

does not have a power to withhold the approval of the selection referred u/s 38(4) of the Act, when the candidates thus selected, possesses the

minimum qualification prescribed and is otherwise eligible. This rather envisages that the process of selection as provided u/s 38 read with Regulation

17, 11, 12 and 16 on its culmination, for the minority institutions for the purposes of appointment of Assistant Teacher (Primary) (BTC) or Head of the

institution enjoys a special status and the interference at various stages in the process of selection pertaining to allocation of marks by the Selection

Committee, and various other stages of selection including approval as has been made applicable by Regulation-10 over other institutions, other than

minority institutions aided and recognised under the Act has been avoided to be made applicable by law over the minority institutions.

Another important aspect, which cannot be overlooked by us to be considered for the present controversy, is that if Regulation-10 is read in

precision, vide its clause (2)(d), it contemplates a complete selection process, which is based on merits as after the conclusion of the selection, the

management is required to prepare a register in duplicate based on the quality point marks obtained by the candidates and it also contemplates

providing of the ratio of candidates to be called for interview as against the number of each vacant post available to the filled. Unlike the procedure as

provided under Regulation-10, in Regulation-17 no such stipulation is contemplated as that of Regulation 10(2)(d), that the appointment of Assistant

Teachers or the Headmaster of the institution in an aided minority institution is to be made on the basis of quality point marks or on the merits of the

matter. Besides Regulation 10(2)(d), there is no other provision in the Regulation which deals with process of allocation of quality point marks. Since

by Regulation 17(2)(e), Regulation 10(2)(d) has not been made applicable to selection of Assistant Teacher (Primary) (BTC) in Aided Minority

Institutions, the argument of petitioner’s counsel cannot be accepted by us to the effect that no quality point mark was awarded to the appellants.

The justification for the reasons assigned above is also to be derived from analysis of clause 2(f) of Regulation-17, which provides that on such

panel of selected candidates being communicated by the Selection Committee, it would be drawn by the Director of the region, and after considering

the names supplied by the committee of experts. Under clause 2(g) of Regulation-17, it provides that all the candidates, who were interviewed by the

Selection Committee, a list would be prepared in duplicate along with two other candidates in the wait list signed by the Chairman and the copy of the

same would be sent with the statement as referred to in clause 2(f) of Regulation-10 to the Regional Director of Education for its approval. At the risk

of the repetition, we reiterate that under clause 2(g) of the Regulation-17, the statement which is required to be sent by the Selection Committee is

under clause 2(f) of Regulation-10 as made applicable by clause 2(e) of Regulation17. If clause 2(f)of Regulation-10 is taken into consideration and

read in consonance to clause 2(g) of Regulation-17, it is yet again reiterated that it is only Appendix ‘C’, which would be applicable in relation to

the selections for a minority institutions. Thus consequently we rule out the applicability of the Appendix ‘D’, which deals with the allocation of

quality point marks in a selection as made applicable to the institutions covered u/s 36 of the Act. It has been excluded to be made applicable over the

aided recognised minority institutions.Â

The issue with regard to distinction in the selection process of a recognized institution and that of a recognized aided minority institution could also

be drawn by the interpretation of clause 2(h) of Regulation-10, which has been exclusively made applicable to the institutions other than the minority

institutions. Clause 2(h) of Regulation-10 has not been made applicable under clause 2(e) of the Regulation-17 as applicable to the minority institutions

covered u/s 38. Meaning thereby, the provisions contained in the statute as framed there under provided a distinct and an independent procedure for

the appointment of Assistant Teachers in an aided minority institution and the stringent procedure as applicable to the institutions other than minority

institutions, particularly, that as contained under clause 2(d) of Regulation-10 has not been made applicable in its totality. Clause 2(h) of Regulation-10

is quoted hereunder:

**¼t½ [k.M ¼N½ esa nh x;h fdlh ckr ds gksrs gq, Hkh ;fn nks ;k vf/kd vH;fFkZ;ksa dks fn, x, vadksa dk ;ksx cjkcj gks rks vk;q esa

T;s’Bre vH;FkhZ dks ojh;rk nh tk;sxhA**

Clause 2(h) of Regulation 10, deals with a contingency when two candidates receive equal marks how they are to be dealt with for appointment.

The provisions of Sub-Clause 2(h) of Regulation 10 has not been attracted and made applicable by Sub Clause 2(e) of Regulation 17, over minority

institutions because there may not arise a situation of equivalence of marks in a selection made in minority institutions because of non applicability of

process of allocation of quality point marks and of Appendix D of Regulation 10(2)(d).

A scrutiny of Regulation 10(2)(g) reads as under:-Â

¼N½ p;u lfefr }kjk p;u xq.k&fo’k;d vadksa vkSj lk{kkRdkj esa fn, x, vadksa ds ;ksx ds vk/kkj Ikj fd;k tk;sxkA bl iz;kstu ds fy, vadksa dk ;ksx

xq.k&fo’k;d vadksa tSlk fd [k.M ¼?k½ ds v/khu vH;FkhZ }kjk izkIr fd, tk;sa vkSj p;u lfefr ds lnL;ksa }kjk 25 esa ls fn, x, vadksa ds vkSlr dks

tksM+dj yxk;k tk;sxkA mnkgj.kkFkZ& ,sls vH;FkhZ dks tks [k.M ¼?k½ ds v/khu 110 xq.k&fo’k;d vad izkIr djsa] ;fn lk{kkRdkj esa ik¡p

lnL; gksa vkSj mu lnL;ksa }kjk fuEufyf[kr vad fn, tk;sa%&

       lnL; la[;k 1          18

       lnL; la[;k 2          15

       lnL; la[;k 3          17

       lnL; l[;k 4          11

       lnL; la[;k 5          14

                     ;ksx   75

Rkks vadksa dk ;ksx 110$75@5 ¾ 125 gksxkA lk{kkRdkj ds fy, fu/kkZfjr iw.kkZd 25 esa ls ;fn fdlh vH;FkhZ dks 18 vadksa ls vf/kd vad iznku fd,

tk, vFkok 10 vad ls de vad iznku fd, tk, rks ,sls vad iznku djus okys lnL; }kjk mldk fofâ€k’V dkj.k vfHkfyf[kr fd;k tkuk vfuok; ZgskxkA blds

vfrfjDr izR;sd foâ€ks’kK Hkh [k.M ¼p½ esa fufnZ’V fooj.k i= es ;g vadr djsxk fd og vH;FkhZ ds p;u ls lger gS ;k ughA vlgefr dh nâ€kk

esa og la{ksi esa mlds dkj.k fy[ksxkA fdlh in ds fy, LkHkh vH;kfFkZ;ksa dk lk{kkRdkj dj fy, tkus ds Ikâ€pkr~ p;u lfefr dk lHkkifr ;k rks Lo;a ;k mlds

fdlh vU; lnL; }kjk fd, x, p;u dh dk;Zokfg;ksa ds lEcU/k esa ,d fVIi.kh nks izfr;ksa esa rS;kj djk;sxk ftlesa pqus x, vH;kfFkZ;ksa ds uke vkSj de ls de

nks ,sls foâ€ks’kKksa ds uke Hkh fn, tk;saxs tks ,sls vH;fFkZ;ksa ds p;u ls lger gksaA bl idz kj rS;kj dh x;h fVIi.kh ij p;u lefr ds lHkkifr vkSj vU;

lnL;ksa }kjk gLrk{kj fd, tk;saxs ftles mudk iwjk uke] inuke vkSj irk vkSj fnukad fn;k tk;sxkA bl fVIi.kh dh ,d izfr ds lkFk [k.M ¼p½ esa

fufnZ’V fooj.k&i= dh ,d izfr lHkkifr }kjk “kh?kz gh izcU/kd ds ek/;e ls izcU/kkf/kdj.k dks Hksth tk;sxh vkSj nwljh izfr lEcfU/kr ftyk fâ€k{kk

vf/kdkjh dks Hksth tk;sxhA

 Li’Vhdj.k&/kkjk 37¼5½ esa fufnZ’V ekeyksa es] bl fofu;e esa izcU/k lfefr ;k mlds v/;{k ¼izslhMsUV½ ;k lnL; ds izfr dksbZ

funsZâ€k izkf/kd`r fu;a=d ds izfr funsZâ€k le>k tk;sxk ftl [k.M ¼?k½ ds v/khu] lk{kkRdkj esa vad nsus ds iz;kstukFkZ p;u lfefr dk ,dy lnL; le>k

tk;sxkAÂ

Regulation 10(2)(d) is the only provision under the regulations framed u/s 24 of Act of 2006 which deals with the procedure for processing the

application and allocation of quality point marks as per Appendix-D, for which the Manager has to maintain the Register. Thereafter, the candidates

would be called for interview and selected in accordance with quality point marks obtained. Under Regulation 10(2)(g) quality point marks obtained

under Regulation 10(2)(d) are to be added together thereafter total marks is arrived at after adding marks of Regulation 10(2)(d). On scrutiny of

Regulation-17, which deals with procedure in relation to appointments to be made in an aided recognized minority institutions, neither Regulation 10(2)

(d) nor Regulation 10(2)(g) has been made applicable, by Regulations 17(2)(e). Hence, we are of the view that due to non-applicability of Regulation

10(2)(d) and 10(2)(g), no quality point marks are to be assigned for selection in a minority institution and that is why when Regulation 10(2)(h), where

it deals with the situation when two or more candidates having obtained equal marks how they would be appointed, has too not being made applicable

by the law gives to the selection of assistant teachers contemplated under

Regulation-17, in relation to institutions falling under Section 38 of the Act. Since, as deduced above that in a minority institution there is no allocation

of quality point marks required under law, it had not contemplated any comparison of marks of two candidates, who obtained equal marks i.e why

Regulation 10(2)(h), too has rightly not been made applicable.

For the reason of exclusion of applicability of clause 2(h) of Regulation-10, the choice of appointment has been exclusively given to the Selection

Committee of the aided recognised minority institution, which has to make an appointment in accordance with certificate given in Appendix ‘C’.

The priority of choices based on assignment of quality point marks is not attracted over the minority institutions.

For the reasons assigned above, we feel that the reasoning as assigned by the learned Single Judge for quashing the selection of the appellants that

there was no allocation of quality point parks to the appellants in accordance with Appendix ‘D’ and the view taken by the learned

Single Judge that irrespective of the fact that the institution of respondent No. 5 being a minority recognised aided institution, yet the selection of

Assistant Teachers (Primary) (BTC) would still entail scrutiny of marks under Appendix ‘D’ is unsustainable. Having made the aforesaid

determination, the question would still arise as wether the selection made is illegal in so far as the petitioner was the only candidate who had the

qualification of B.T.C. The right of the selected candidates who were not being B.T.C but B.Ed, could arise only if the petitioner claim stood satisfied.

If no, the candidate among the appellant selectees who secured even lowest marks would have pave way for the petitioner.

At this stage, the learned counsel for the writ petitioner/respondent, Mr. Tapan Singh, submits that based on the instructions of his clients, since

she has been granted appointment in other institution, is not interested to press his relief claimed in the writ petition anymore, she does not want to

press her writ petition. Accordingly, he has prayed for the dismissal of the writ petition, but since the judgment under challenge in Appeal has an effect

of quashing the selection of appellants held as per law for the reasons given above it is still incumbent for us to deal with the appeal on its own

merits.Â

Hence, the judgment impugned in the Special Appeal dated 4th September, 2017 cannot be sustained and is set aside and consequently the writ

petition is dismissed and the selection of the appellants is upheld. As a result of which the appeal is allowed. Impugned order dated 4th September,

2017 passed by the learned Single Judge in writ petition No. 500 (S/S) of 2011 “Kavita Saini Vs. State of Uttarakhand & othersâ€, is quashed.

There would be no order as to costs.

This judgment would decide the other connected appeals.