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Judgment
Brief background of the case is that in the district of Kaushambi there is girls institution in the name and style of Kasturba Gandhi Kanya Inter College, Kaushambi recognized by Board of High School and Intermediate Education U.P. Allahabad. Affairs of said institution are required to be governed under the provision of U.P. Act No. II of 1921. Salary of teaching and non-teaching staff of the institution is paid from State exchequer, and the provision of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal, Lecturers and L.T. Grade teachers is to be made strictly in consonance with the U.P. Secondary Education Service Selection Board Act, 1982 and the Rules framed thereunder known as U.P. Secondary Education Service Selection Board Rules, 1998. In the said institution one Smt. Kanti Pandey had been performing and discharging duties as Principal and she attained her age of superannuation on 30.06.2003 and on attaining her age of superannuation, one Smt. Vijay Laxmi who was senior most lecturer in the institution has been given charge of Officiating Principal of the institution. Prior to it, as vacancy in question has fallen vacant on substantive basis, the Committee of Management sent requisition for filling the said post on 31.01.2003 to the U.P. Secondary Education Services Selection Board, Allahabad for making selection for the post of regular Principal.
U.P. Secondary Education Services Selection Board in its turn advertised the said post vide Advertisement No. 2 of 2008 and in the said selection Smt. Vijay Laxmi, who has been holding the officiating charge of Principal was called for facing interview for being appointed as regular Principal. Smt. Vijay Laxmi''s, date of birth is 30th September, 1948, accordingly she reached her age of superannuation on 30.09.2010 and as her date of birth fell in the mid of academic session, she has been permitted to continue till the end of academic session ie. 30.06.2011 as per Regulation 21 of Chapter III of U.P Act No. II of 1921 that provides, if date of birth of a Principal/Headmaster or teacher falls during the academic session i.e. between 2nd July to 30 June, extension of service shall be extended 30th June and in the background of statutory provision, she has been allowed to continue till 30.06.2011 and prior to it her name has been sent to the State Government for extension of service for two years on account of she being National Awardee. The State Government in its turn accepted the proposal for extension of two years service w.e.f. 01.07.2011 to 30.06.2013. The U.P. Secondary Education Services Selection Board notified the panel for the post of Principal wherein name of Smt. Vijay Laxmi was placed at serial No. 1 and Smt. Neelam was placed at serial No. 2.
Recommendation made in favour of Smt. Vijay Laxmi, serial No. 1 for being appointed as Principal has been challenged by Smt. Neelam by means of Civil Misc. Writ Petition No. 73001 of 2011 (Smt. Neelam v. State of U.P. and others) on the premises that on the date of interview i.e. 16.03.2011 Smt. Vijay Laxmi stood retired and she has been allowed to continue till the end of academic session, and as such she could not have been permitted to face the interview and could not have been empanelled.
District Inspector of Schools, after receiving the panel of the selected candidates from the Board sent a communication dated 29.07.2011 to the Secretary of the Board seeking guidance for giving charge to Smt. Vijay Laxmi. Again in the said direction District Inspector of Schools sent letter dated 02.01.2012 to the Board seeking guidance, as to whether in such a situation charge can be handed over. Thereafter Board sent communication dated 17th January, 2012 to the District Inspector of Schools mentioning that selection of Smt. Vijai Laxmi was illegal as she has attained the age of superannuation before the interview, and Smt. Vijai Laxmi may not be permitted to join as regular Principal. In the said precise backdrop of the case the Board sent information to District Inspector of Schools mentioning therein that her selection was illegal as she had already attained the age of superannuation before the interview
On 08.10.2013, the Board has proceeded to cancel the selection of Smt. Vijay Laxmi on the ground that after attaining the age of superannuation, she was not at all entitled to be appointed as regular Principal and thereafter on 08.11.2013, Secretary, U.P. Secondary Education Services Selection Board asking the District Inspector of Schools to permit Smt. Neelam, who was placed at serial No. 2 in the panel notified on 01.07.2011 to join as Principal of the institution. Consequently upon the same Manager of the institution was asked to ensure joining.
This much is also reflected that Smt. Vijay Laxmi has completed extended period on 30.06.2013 and in her place one Smt. Rekha Singh claiming herself to be appointed as ad hoc Principal filed Civil Misc. Writ Petition No. 64594 of 2013 (Smt. Rekha Singh v. State of U.P. and others) claiming therein that she should be given charge of the Principal of the institution as she was senior most teacher. Said writ petition filed by Smt. Rekha Singh has been dismissed vide judgment and order dated 06.12.2013 by holding that she cannot resist the recommendation made by the Board.
Aggrieved against the same, Smt. Rekha Singh filed Special Appeal No. 1971 of 2013 before this Court. After writ petition filed by Smt. Rekha Singh has been dismissed, the Committee of Management is before this Court by filing writ petition No. 23352 of 2014 challenging the recommendation so made in favour of Smt. Neelam Singh. Smt. Neelam Singh has filed Civil Misc. Writ Petition No. 20077 of 2014 for enforcement of the order passed by the Board as Committee of Management was not at all implementing the order of Selection Board for offering appointment of Smt. Neelam Singh. The writ petition filed by Committee of Management in question has been dismissed on 15.11.2015 and as far as writ petition filed by Smt. Neelam namely Civil Misc. Writ Petition No. 2007 of 4 (Smt. Neelam v. State of U.P. and others) has been allowed, the Committee of Management has preferred Special Appeal No. 874 of 2015 as well as Special Appeal No. 875 of 2015 assailing the validity of the decision of learned Single Judge and accordingly all the three Special Appeals have been clubbed and are being taken up together with the consent of the parties.
Sri R.K. Ojha, Senior Advocate, appearing alongwith Sri S.K. Mishra, Advocate submitted with vehemence that in the present case once panel has been implemented and given effect to and thereafter Smt. Vijay Laxmi has attained her age of superannuation then after attaining the age of superannuation Smt. Neelam could not have been appointed, as panel in question exhausted itself and fresh denovo exercise for selection ought to have been undertaken and senior most teacher Smt. Rekha Singh ought to have been handed over charge, in view of this, Learned Single Judge, has clearly erred in law while allowing the writ petition filed by Smt. Neelam and dismissing the writ petition filed by appellant-petitioners, the Committee of Management of the institution.
Sri S.P. Pandey, Advocate, representing Smt. Rekha Singh appellant of Special Appeal No. 1971 of 2013 has also toed same lines that once panel has exhausted itself then it was Smt. Rekha Singh who was entitled to function as Principal, as such the order passed by this Court is liable to be set aside.
Sri Ashok Khare, Senior Advocate, appearing alongwith Sri Deepak Kumar Pal/Sri Vrendra Pratap Pal, Advocates representing Smt. Neelam has contended that on the date when panel has been prepared Smt. Vijay Laxmi has already attained the age of superannuation and she could not have been empaneled at serial No. 1 and as such rightful order has been passed by the Selection Board and rightfully recommendation has been made in favour of Smt. Neelam, accordingly Special Appeal preferred be dismissed.
Learned Standing counsel as well as counsel representing selection Board have toed the same lines.
After respective arguments have been advanced, factual situation that has so emerged is that post of Principal of the institution namely Kasturba Gandhi Kanya Inter College, Kaushambi fell vacant on 30.06.2003 and in anticipation of the vacancy in question the Committee of Management of the institution sent requisition on 31.01.2003 to the Board and the Board in its turn has advertised the said vacancy vide Advertisement No. 2 of 2003. Smt. Vijay Laxmi had been performing and discharging duties as ad hoc Principal by virtue of being senior most teacher, her date of birth is 30.09.1948, and she has reached her age of superannuation on 30.09.2010 and as her date of birth has been falling in the midst of academic session, she was permitted to continue till the end of next academic session i.e. 30.06.2011 in consonance with the provision of Regulation 21 of Chapter III of U.P. Act No. II of 1921. This much is also clear that Smt. Vijay Laxmi was National Awardee and by virtue of being National Awardee, the State has accepted the proposal for extension of her service for two years w.e.f. 01.07.2011 and accordingly she has proceeded to serve the institution concerned up to 30.06.2013. During this period Board on 01.07.2011 recommended the name of Vijay Laxmi at serial No. 1 for being appointed as Principal of the institution concerned.
District Inspector of Schools after receiving the panel of selected candidates from the Board, sent communication dated 29.07.2011 to Secretary of Board for verification of panel of selected candidate. On 02.01.2012, District Inspector of Schools sought guidance of Board for giving charge to Smt. Vijay Laxmi. Selection Board on 17.01.2012 informed District Inspector of Schools that selection of Smt. Vijai Laxmi was illegal as she has attained the age of superannuation before interview. On 08.12.2013, Selection Board cancelled the candidature of Smt. Vijai Laxmi. Smt. Vijai Laxmi has already left the institution on 30.06.2013 after completing extended period of service, she has not at all come forward to assail the validity of decision so taken by selection Board cancelling her empanelment; rather the Managing Committee of Senior Most Teacher are before this Court.
In order to appreciate the issue that is being raised before us, Regulation 21 of Chapter III of U.P. Act No. II of 1921 is being looked into:
"21. Superannuation age of Principal, Headmaster, Teacher and other employees would be 60 years. If above said superannuation age of any Principal, Headmaster and Teacher falls on any date in between 2nd July and 30th June, except in the condition when he himself, before two months of the date of superannuation, furnishes in writing the information for not seeking extension of service, extension of service up to 30th June shall be deemed to be conferred on him so that after summer vacation, substitute can be arranged in the month of July. In addition to this, extension of service could be granted only in such special cases which may be decided by the State Government.
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A bare perusal of the provision quoted above would go to show that superannuation age of Principal/Headmaster/Teacher has been prescribed under Regulation 21 of Chapter III of U.P. Act No. II of 1921 and thereafter there is provision for extension of service up to 30th June, if superannuation age of any Principal, Headmaster and teacher falls on any date in between 2nd July to 30th June, so that after summer vacation substitute can be arranged in the month of July. In addition to this, extension of service could be granted only in such special cases which may be decided by the State Government.
Thus, the age of superannuation is clearly prescribed and thereafter there is provision for extension of service up to 30th June, if superannuation age falls on any date in between 2nd July, and 30th June. In normal course of business; in addition to the same, extension of service in special case decided by the State Government can be accorded. Age of superannuation is a fixed point and extension of service at the first instance is limited to the next academic session i.e. 30th June and thereafter in addition to the same, extension of service could be granted only in such special cases which may be decided by the State Government.
In the present case, factual situation that has so emerged, that date of birth of Smt. Vijay Laxmi is 30.09.1948 and in consonance with the provision as contained under Regulation 21 of Chapter III of U.P. Act No. II of 1921, she has reached her age of superannuation on 30.09.2010 and as her date of birth has been falling in mid academic session, she has been allowed to continue till the end of next academic session i.e. 30.06.2011 and thereafter as a special case, as she has been a National Awardee w.e.f. 01.07.2011, she has been granted extension of service up to 30.06.2013.
Issue thus before us is as to whether incumbent who has already attained the age of superannuation and her continuance in institution is based on extension of service could she have been empaneled.
Issue raised is no more res integra as this Court in the case of Committee of Management, Jagdish Saran Rajvanshi Kanya Inter College, Meerut v. Joint Director of Education, Laws (All)- 199-12-34 has held as follows:
"From the aforesaid discussions, it is clear that once a teacher has attained the age of superannuation, in other words age of 60 years or 58 years, as the case may be, he has no vested right to continue in service. The order of appointment, thus, could not be issued in favour of such teacher though selected for the post by the Commission, after attaining the age of superannuation. In our opinion, the educational authorities as well as Committee of Management were not justified in issuing the letter of appointment in favour of teacher for the post of Principal who had already attained the age of superannuation. Under no provision of the Act or the Rules or the Regulations such action can be justified as the panel became ineffective and it was not required to be implemented in respect of candidate who had already attained the age of superannuation. The only step required by the authorities of the education department and the Committee of Management was to issue the letter of appointment in favour of the next candidate shown in the order of preference."
Said judgment in the case of Committee of Management, Jagdish Saran Rajvanshi Kanya Inter College, Meerut v. Joint Director of Education (Supra) has been followed by another Division Bench of this Court in Arun Kumar Jaiswal v. State of U.P. and others (Special Appeal No. 1415 of 2009 decided on 11th April, 2013). In the said case also, the post of Principal fell vacant in a recognised institution and the select panel was notified by the Board on 24th January, 2009. One Sri Ram Pyare Pandey, who was at Serial No. 1 in the select panel, had already attained the age of superannuation by the date of notification of panel, in the said backdrop learned Single Judge issued directives for appointment of candidate empanelled at serial No. 2 and said judgment of learned Single Judge has been affirmed on the principle that superannuated incumbent cannot be empaneled.
A Full Bench of this Court in the case of Surendra Prasad Agnihotri v. State of U.P. and others , 11 2010 LAWS (All) 377; 2010 (2) UPLBEC 1171 has also interpreted Regulation 21 of Chapter-III of U.P. Act No. II of 1921 in the same term by clearly mentioning therein that a teacher after he attains the age of superannuation cannot be offered any appointment either by way of direct recruitment or by way of officiating appointment. The relevant extract of judgment provides for as follows:
"19. We may clarify that a teacher, after he attains the age of superannuation, cannot be offered any appointment either by way of direct recruitment or by way of officiating appointment and it is for this reason that the teacher, after attaining the age of superannuation, cannot claim appointment as Ad-hoc Principal, when he is continuing as teacher till the end of the academic session under Regulation 21 of Chapter-III. The fact situation in respect of such teacher is entirely different viz-�-viz a teacher who was appointed as Ad-hoc Principal before attaining the age of superannuation and is to continue on the strength of his seniority alone till regularly selected Principal is appointed or till the 30th June, following his age of superannuation under Regulation 21 of Chapter-III."
Once there are two coordinate Benches of this Court on the same subject matter has already expressed its view and same principle has been reiterated by the Full Bench of this Court in the case of Surendra Prasad Agnihotri (Supra) then the judicial discipline binds us not to take a different or contrary view.
Apart from judicial discipline there are additional reasons also for toeing the same lines and arriving/reaching at the same conclusion that after attaining age of superannuation, empanelment of candidate is not subscribed by law. The date of superannuation is known in advance, as it is a fixed point, "extension of service" connotes requirement in service on the same post that was being held at the time of superannuation, such retention are treated as "extension of service". "Extension of service" under the scheme of things provided for is not at all aimed to extend benefit to Principal/Headmaster/Teacher, rather the extension is aimed with the object that academic impairment is not there in the mid of academic session and in the next session after summer vacations arrangements are made of the substitutes. "Extension of service" to National Awardees is also with the same intent that their services may be utilized as teachers. Extension of service of National Awardee/State Awardee has been explained by the Apex Court in Special Leave Petition No. 16808 of 1998, Prem Dutt Chamoli v. State of U.P. as follows;
"All that is necessary to make clear in these petitions is that since the petitioners have won National Award or State Award as teachers as the case may be they may be given two years extension in service as teachers according to the decision of the State Government itself. It is in the interest both of the institution and the public that their services as teachers should be utilised for such further period. However, it is made clear that these two years shall not be counted for seniority for getting either Principalship or any other higher post. If the Commission or the Committee (in the case of the minority institution), however, wants to appoint or continue such teachers as Principal otherwise than on the ground that they are senior because of the extension which is granted as per this order they are at liberty to do so.
The Committee appointed by the State Government, however, is at liberty not to grant extension in service to the teachers concerned, if they are of the opinion that the teachers have deteriorated in their performance as teachers after obtaining the National Award or if there was or is any complaint against them involving moral turpitude.
The interim orders, if any, passed earlier in these matters shall stand vacated in view of the above order. The petitions are disposed of accordingly."
Apart from this Chapter III of U.P. Act No. II of 1921 deals with condition of service, Regulation 8 of Chapter III of U.P. Act No. II of 1921, provides that period of probation for Head of Institution or Teacher whether appointed by direct recruitment or promotion shall be one year, the said period of probation under Regulation 12 of Chapter III of U.P. Act No. II of 1921 may be extended for further period of twelve months. A superannuated incumbent, continuing on the strength of extension of service, cannot be kept on probation on account of the fact that he has already attained the age of superannuation. An incumbent having attained normal retirement age continues to serve on extension cannot be kept on probation, in view of this, a superannuated incumbent continuing on extension cannot be impaneled to be offered fresh appointment by way of direct recruitment as Principal/Head Master/Teacher.
Accordingly once Smt. Vijay Laxmi has already reached the age of her superannuation on 30.09.2010 then by no stretched of imagination she could have been empaneled at serial No. 1 for being offered appointed as Principal of the institution.
U.P. Secondary Education Services Selection Board has rightly proceeded to cancel her candidature and best part of the same is that Smt. Vijay Laxmi who has attained the age of superannuation and continued in the institution on the strength of extension of service up till 30.06.2013 has never came forward to question the validity of the action so taken and the Committee of Management as well as Smt. Rekha Singh are labouring under a wrong impression that Smt. Vijay Laxmi could have been issued appointment letter even after she has retired on attaining her age of superannuation whereas she has been in the institution only on account of her extension in service.
Fact of the matter is that her impanelment itself after attaining the age of superannuation and during her continuance in service on extension basis was not at all permissible in law and the moment Selection Board was encountered with the said situation, then Selection Board in its turn has proceeded to rectify and remedy the said situation by asking for ensuring joining Smt. Neelam Singh. In view of this, challenge made by the Committee of Management of the institution and Smt. Rekha Singh on this aspect that Smt. Vijay Laxmi continued up till 30.06.2013 on substantive basis and the panel exhausted itself cannot be accepted in the facts of the case.
Accordingly in our considered opinion the view expressed by learned Single Judge while dismissing the writ petition filed by the Committee of Management on ground of locus as well as for the reasons indicated above, we do not find any infirmity in the judgment and order passed by learned Single Judge on all the three occasions.
With this all the Special Appeals are dismissed.