District Basic Education Officer And ... vs Committee Of Management, Karwal Devi ... on 17 March, 2023

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Allahabad High Court

District Basic Education Officer And ... vs Committee Of Management, Karwal Devi ... on 17 March, 2023

1. This is an appeal by the State of U.P. and its officials in the Department of Basic Education, impugning the validity of the judgment and order dated 23.03.2022 passed by the learned Single Judge allowing Writ-A No.21411 of 2019.

2. The facts giving rise to this appeal are that there is a Junior High School, going by the name Karwal Devi Kanya Laghu Madhyamik Vidyalaya, Karwal, Majhgawan, Gorakhpur, which is a recognized and aided Junior High School, administered by a private Management. The aforesaid Junior High School shall hereinafter be called 'the Institution'. The services of teachers of the Institution are governed by the provisions of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short, 'the Rules of 1978'). Salaries to teachers and other employees of the Institution are borne on State grant and are paid in accordance with the provisions of the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (for short, 'the Act of 1978'). The parties are ad idem that the post of Headmistress of the Institution fell vacant and the Management of the Institution sought permission of the District Basic Education Officer, Gorakhpur (for short, ''the BSA') on 22.12.2018 to make recruitment on the post. The BSA granted the requisite permission on 05.01.2019, authorizing the Institution to advertise the post of Headmistress and complete the process of selection. An advertisement dated 08.01.2019 was, accordingly, published in two daily newspapers, to wit, 'Aaj' and 'Swatantra Bharat', advertising the post of Headmistress of the Institution. In the said advertisement, there was no mention of the minimum qualifications for the post rendering it bad on that account. The Management of the Institution sought permission of the BSA to cancel the said advertisement and issue a fresh one in its place, rectifying the error.

3. The BSA vide order dated 08.03.2019 permitted a fresh advertisement to be issued. Accordingly, the Institution advertised the post of Headmistress afresh on 09.03.2019, getting it published in the dailies, 'Aaj' and 'Swatantra Bharat'. The advertisement invited applications from eligible and qualified candidates for the post of Headmistress of the Institution until 25.03.2019 indicating that the applications were to be submitted by registered post. The date of interview was scheduled on 29.03.2019. The Manager of the Institution addressed a letter dated 18.03.2019 to the BSA, requesting for the provision of a nominee to participate in the Selection Committee convened to select the Headmistress.

4. In response to the letter dated 18.03.2019, the BSA sent a memo dated 26.03.2019 to the Institution saying that it was not possible to provide a nominee as the Model Code of Conduct was in operation on account of the then forthcoming elections to the Legislative Assembly. The Institution, accordingly, postponed the date of interview from 29.03.2019 to 29.05.2019. All the candidates, who had applied, were informed of the changed date. Later on, on 16.05.2019, a memo was addressed to the BSA requesting for the provision of a nominee as the Model Code of Conduct was then soon scheduled to be over. A reminder was sent on 25.05.2019 with a further request to re-schedule the interview to 10.06.2019. The BSA on occasion provided a nominee to sit on the Selection Committee and issued an order dated 01.06.2019, directing Arun Pratap Singh, Block Education Officer, Gagaha, Gorakhpur to act as the BSA's nominee in the Selection Committee convened to select the Headmistress of the Institution. The Institution constituted a Three Members Selection Committee, comprising the Manager of the Institution, the Vice President of the Committee of Management of the Institution and Arun Pratap Singh, the BSA's nominee.

5. The interviews were held on the re-scheduled date i.e. 10.06.2019. The Selection Committee met and conducted the interviews of eligible and qualified candidates. The members individually awarded marks to each candidate in accordance with the assessed merit. An attendance register of candidates signed by all members of the Selection Committee was also drawn up. At the conclusion of selection, the relative merit of all candidates, who appeared, was drawn up. One Smt. Kajal Singh was found to be the most suitable amongst the candidates on account of the highest merit assessed for her. She was followed by Smt. Alka Singh and Smt. Indrakala Singh, who were placed at serial Nos. 2 and 3 in that order. The Manager of the Institution issued a letter dated 12.06.2019, forwarding the names of the candidates in accordance with their merit assessed by the members of the Selection Committee to the BSA. The Manager sought the BSA's approval to Smt. Kajal Singh's selection.

6. The BSA, however, passed an order dated 04.07.2019, declining to grant approval to the selection of Smt. Kajal Singh. The Management, who are the writ petitioner-respondents to this appeal, aggrieved by the order dated 11.07.2019 passed by the BSA, moved this Court by instituting Writ-A No.11919 of 2019. It appears that in the said petition, this Court required the BSA to file his personal affidavit vide order dated 13.08.2019. In compliance, the BSA filed his personal affidavit stating that there is no order dated 07.06.2019 in writing, but an oral instruction was issued through Video Conferencing by the Additional Chief Secretary (Basic Education) imposing a ban on grant of approval to the appointment of Assistant Teachers and Headmasters/ Headmistresses in recognized and aided junior high schools. In view of the aforesaid stand, this Court vide order dated 26.08.2019 disposed of Writ-A No.11919 of 2019 with a direction to the BSA to decide the writ-petitioners' claim for grant of approval to the Headmistress's selection, relating to the Institution.

7. The writ-petitioner Management served a certified copy of the judgment and order dated 26.08.2019 passed by this Court in Writ-A No.11919 of 2019 upon the BSA along with representation dated 07.09.2019/ 09.09.2019, seeking approval to the selection of the Headmistress. Since no orders were passed with regard to the approval of the selected Headmistress, the writ-petitioners, considering it to be a case of deemed approval under Rule 10(5)(iii) of the Rules of 1978 [as it stood prior to the enforcement of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) (Seventh Amendment) Rules, 2019] (for short, 'the 7th Amendment Rules'), proceeded to issue a letter of appointment to Smt. Kajal Singh dated 10.10.2019. Smt. Kajal Singh, in compliance with the letter of appointment issued by the writ-petitioners Management, joined the Institution as the Headmistress on 24.10.2019. An information with regard to the said action was forwarded by the Manager of the Institution to the BSA vide memo dated 30.10.2019. At this stage, the BSA proceeded to pass an order dated 06.11.2019 rejecting the Institution's claim for grant of approval to the appointment of the Headmistress.

8. The Institution, accordingly, preferred Writ-A No.21411 of 2019, challenging the order dated 06.11.2019 passed by the BSA, as also the Government Order dated 31.10.2019, on the strength of which the BSA passed the former order. A mandamus was also prayed directing the BSA to consider grant of approval to the Headmistress's appointment. The writ petition came up for hearing after exchange of affidavits before the learned Single Judge on 23.03.2022, who allowed the writ petition and quashed the order dated 06.11.2019 passed by the BSA. A mandamus was issued to the BSA to grant approval to the appointment of Smt. Kajal Singh as the Headmistress of the Institution within a period of two weeks. It was also ordered that Smt. Kajal Singh would be entitled to her salary and other service benefits from 10.10.2019 i.e. after one month of the date of submission of papers for approval by the Management of the Institution to the BSA.

9. Aggrieved by the judgment of the learned Single Judge, the State of U.P. and two of its Officers in the Department of Basic Education, who are respondents to the writ petition, have preferred this appeal under Chapter VIII Rule 5 of the Rules of the Court.

10. Heard the learned Standing Counsel appearing on behalf of the appellants and Mr. Indra Raj Singh, learned Counsel appearing on behalf of the respondents.

11. The learned Single Judge while allowing the writ petition was of opinion that the Government Order dated 31.10.2019 came into force with effect from that date, but the selection procedure was completed by the Committee of Management and papers forwarded to the BSA on 12.06.2019. The learned Judge relied upon a judgment of this Court in Writ-A No.10509 of 2019, Committee of Management, Adarsh Janta Madhyamik Vidyalaya and another v. State of U.P. and others, decided on 04.03.2020, holding that the process of selection being initiated much prior to the issue of the Government Order dated 31.10.2019 and the amendment to the Rules of 1978 by the 7th Amendment Rules w.e.f. 04.12.2019, the process of appointment in such a case would continue to be preserved under the then existing Rules. It was opined by this Court in Committee of Management, Adarsh Janta Madhyamik Vidyalaya (supra) that the process of selection that was commenced under the unamended Rules of 1978, after due permission of the competent Authority, would continue to be governed by that process and the subsequently issued Government Order or the 7th Amendment Rules, that came into existence later on, would not affect its validity.

12. In support of his Lordship's reasoning, the learned Single Judge in Committee of Management, Adarsh Janta Madhyamik Vidyalaya relied upon the decision of a Full Bench of this Court in Santosh Kumar Singh v. State of U.P. and others, 2015 (5) AWC 4719. It would be apposite to extract what the learned Single Judge took note of in Committee of Management, Adarsh Janta Madhyamik Vidyalaya regarding the Full Bench decision of this Court in Santosh Kumar Singh (supra):

"A Full Bench of this Court in Special Appeal (Defective) No. 215 of 2015 (Santosh Kumar Singh Vs. State of U.P. & others) decided on 22.7.2015 has considered the question of continuing selection process where the process of appointment was initiated by issuing advertiesement before rescision of the removal of Difficulties Order by Section 33-E of the U.P. Act No. 13 of 1999 and held, as under:-

"We consequently answer the reference in the following terms:

(a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January 1999 by the publication of an advertisement, would continue to be preserved;

(b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make adhoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999;

(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and

(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra).

The reference to the Full Bench is answered in the aforesaid terms. The special appeal shall now be placed before the appropriate Bench for disposal in the light of this judgment."

(emphasis supplied)

13. Before us, it has been argued on the basis of the averments made in Paragraph No.6 of the counter affidavit that on 07.06.2019, the Additional Chief Secretary (Basic Education), Government of U.P., Lucknow, through Video Conferencing, had directed all Authorities to stop selections for filling up posts of Headmasters and Assistant Teachers in non-government aided junior high schools. Apparently, this was an oral direction issued by the Additional Chief Secretary. It is pointed out that this direction was issued in anticipation of amendments then under contemplation to the Rules of 1978. Accordingly, the State Government vide orders dated 26.09.2019 and 31.10.2019 imposed a ban on selection and appointment of Headmasters and Assistant Teachers in non-government aided junior high schools. Copies of those orders have been annexed as Annexure No. CA-1 to the counter affidavit, to which our attention was drawn by the learned Counsel for the appellants.

14. We have perused both the Government Orders dated 26.09.2019 and 31.10.2019. The learned Single Judge has not looked into the validity of the Government Order dated 31.10.2019, because in his Lordship's opinion, and, we think rightly so, the said Government Order would not affect the right of the Institution in this case to make appointment to the post of Headmistress. Here, the selection process commenced much before the date of the oral fiat of the Additional Chief Secretary (Basic Education), directing stoppage of all selection processes relating to posts of Assistant Teachers and Headmasters of non-government aided junior high schools. The said direction was issued on 07.06.2019.

15. We would proceed to examine the matter on the basis that such a direction could be issued by the Additional Chief Secretary, and see if it affects the Institution's right to make appointments. In our opinion, it does not. The reason is that the process of selection, that was initiated with the approval of the BSA, granted on 05.01.2019, would have to be completed in accordance with the Rules of 1978, as in force at the time when the selection process was initiated. Advertisement pursuant to the order of the BSA, permitting the Institution to fill up the post of Headmistress, was first published on 08.01.2019. It was then cancelled on the request of the Management of the Institution by the BSA on 08.03.2019 with permission to issue a fresh advertisement to overcome a technical flaw in the advertisement. The revised advertisement was published on 09.03.2019. The interviews were initially scheduled for 29th March, 2019, but ultimately held on 10.06.2019 with the BSA sending his nominee to sit on the Selection Committee. The papers regarding proceedings of the Selection Committee were submitted to the BSA on 12.06.2019. Thus, out of the entire recruitment process, only two events happened after the Additional Chief Secretary's oral orders dated 07.06.2019 made through Video Conferencing to stop appointments, to wit, interviews that were held by the Selection Committee on 10.06.2019 and the submission of proceedings of the Selection Committee to the BSA on 12.06.2019. Apart from the aforesaid two events, the entire recruitment process was initiated much before the Additional Chief Secretary's oral 'halt' order.

16. The oral orders were followed by Government Orders dated 26.09.2019 and 31.10.2019, imposing a ban by the State Government on selection and appointment of Headmasters/ Assistant Teachers in non-government aided junior high schools. Later on, the State Government, in exercise of their powers under Section 19(1) of the Uttar Pradesh Basic Education Act, 1972 (for short, 'the Act of 1972'), issued a notification dated 04.12.2019, notifying the 7th Amendment Rules, amending the Rules of 1978. The 7th Amendment Rules, enforced w.e.f. 04.12.2019, withdrew the power of selection from the Managements of non-government aided junior high schools, vesting it in a Selection Board, constituted under the last mentioned Rules. Thus seen, the oral order of the Additional Chief Secretary, asking the Authorities of the Basic Education Department to stop the ongoing selection and appointment of Assistant Teachers and Headmasters in private aided junior high schools as also the two Government Orders dated 26.09.2019 and 31.10.2019 were efforts made in anticipation of enforcement of the then proposed 7th Amendment Rules. The oral orders and the Government Orders sought to achieve this by halting all ongoing selection and appointment of Headmasters and Assistant Teachers in private aided junior high schools, till such time that the 7th Amendment Rules were notified. Accordingly, we also propose to examine whether apart from the oral order dated 07.06.2019, the two Government Orders dated 26.09.2019 and 31.10.2019 could lawfully stop an ongoing selection process initiated prior to any of those measures, oral or written.

17. As already observed with regard to the oral orders of the Additional Chief Secretary assuming that these had binding effect on the Institution's right to select and appoint, would not affect the selection and appointment in this case, because the process had already commenced before the oral orders were issued by the Additional Chief Secretary. Likewise, is the case with the two Government Orders dated 26.09.2019 and 31.10.2019, both of which were issued much after the selection process relating to the post of Headmistress of the Institution was initiated. Rather, the entire process had been completed much before the two Government Orders came to be issued.

18. The principle, that a change in the rules of selection could be applied prospectively, but not affect the selection process already commenced under the unamended or the old Rules, was extensively examined by the Full Bench in Santosh Kumar Singh (supra). In Santosh Kumar Singh, it was held by their Lordships of the Full Bench:

"9. The decision in A.A. Calton (supra) is, therefore, an authority for the proposition that once a process of selection has been initiated, a subsequent amendment of the law by which the power to make an appointment has specifically been taken away from a statutory authority - in that case from the Director - would have no application to a pending selection process which must be governed by the law as it stood when the selection process was initiated. Undoubtedly, the Legislature does have the power to make a law with retrospective effect but unless the law is made expressly retrospective or retrospective by necessary implication, the position of law as it stood when the selection process was initiated, would govern the selection.

10. In certain other contexts, the Supreme Court has held, for instance, that a selection process has to be governed by the Rules and Government Orders in existence on the date on which the process is initiated. In N.T. Bevin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157, the Supreme Court held as follows:

"...Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended Rules or the amended Government orders, issued in exercise of its statutory power either by express provision or by necessary intendment indicate the amended Rules shall be applicable to the pending selections. See P. Mahendran v. State of Karnataka, (1990) 1 SCC 411 : JT (1989) 4 SC 459."

11. In State of Bihar v. Mithilesh Kumar, (2010) 13 SCC 467, the Supreme Court held that a change in the norms of recruitment could be applied prospectively and could not affect those who have been selected for being recommended for appointment after following the norms which were in place at the time when the selection process was commenced. The submission to the contrary was based on the decision in Shankarsan Dash v. Union of India, AIR 1991 SC 1612, to the effect that mere inclusion in a select panel did not confer indefeasible right to appointment. The Supreme Court explained the position in law as follows:

"The decisions which have been cited on behalf of the respondent have clearly explained the law with regard to the applicability of the rules which are amended and/or altered during the selection process. They all say in one voice that the norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect...While a person may not acquire an indefeasible right to appointment merely on the basis of selection, in the instant case the fact situation is different since the claim of the respondent to be appointed had been negated by a change in policy after the selection process had begun."

12. In a subsequent decision in Government of Andhra Pradesh v. Sri Sevadas Vidyamandir High School, (2011) 9 SCC 613, the Supreme Court held that a ban on recruitment to grant-in-aid posts had been issued after the school in question had been permitted by the State to fill up vacant posts. The Supreme Court held that in these circumstances, the State could not contend that the process of rationalization which was introduced subsequently, would also apply to private aided schools, where the process of recruitment had already been commenced pursuant to the approval granted earlier.

13. The judgment in A.A. Cotton (supra) has been recently followed in a decision of the Supreme Court in Kulwant Singh v. Daya Ram, (2015) 3 SCC 177, in the context of the principle that vacancies which had occurred prior to an amendment of rules would be governed by the un-amended rules and not by the amended rules where the amended rules are not made retrospective either expressly or by implication.

14. The judgment of the Division Bench in Subhash Chandra Tripathi's case was based on the law laid down by the Supreme Court in A.A. Cotton (supra). In the referring judgment, the Division Bench has doubted the correctness of that view based on a judgment of the Supreme Court in Shankarsan Dash (supra). In the view of the Division Bench, the Supreme Court has held that even a selection does not confer a right of appointment. Hence, the view which has been taken by the Division Bench is that a mere initiation of the process of selection will not result in the retention of the power of appointment by the authority concerned even when the power of appointment had been withdrawn under a statutory provision, in this case Section 33-E. The decision in Shankarsan Dash (supra) of a Constitution Bench of the Supreme Court dealt with the issue as to whether a candidate whose name appears in the merit list on the basis of a competitive examination acquires an indefeasible right of appointment as a Government servant merely because a vacancy exists. In that context, the Supreme Court held as follows:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 : (AIR 1973 SC 2216), Miss Neelim Shangla v. State of Haryana, (1986) 4 SCC 268 : AIR 1987 SC 169, or Jitendra Kumar v. State of Punjab, (1985) 1 SCR 899 : AIR 1984 SC 1850."

15. These observations of the Supreme Court would indicate that the issue in Shankarsan Dash (supra) was completely distinct. A candidate who is on a select list does not have an indefeasible right to appointment merely because a vacancy exists. That is not the issue in the present case. The issue in the present case is whether a process of selection which was initiated prior to the insertion of Section 33-E which rescinded the Removal of Difficulties Orders must be governed by the law as it then stood at the time when the process was initiated by the issuance of an advertisement. Plainly, the issue is not about the right of a particular candidate to appointment but whether the selection process should be governed by the law as it stood when the selection process was initiated. On this aspect, the consistent position of law has been laid down in the judgment of the Supreme Court in A.A. Cotton (supra)."

19. The answers by the Full Bench in Santosh Kumar Singh have been referred to much earlier in this judgment and the remarks of their Lordships, above referred, make it pellucid that the selection process commenced under the existing rules remains unaffected by any change or amendment to the Rules, unless the amended Rules, expressly or by necessary implication, have retrospective effect.

20. Interestingly, in this case, the oral orders of the Additional Chief Secretary under reference or the two Government Orders issued in this case are not any kind of an amendment to the existing Rules, that is to say, the Rules of 1978. These were just interim measures to hold back the selection processes pending the enforcement of the amended Rules. If the amended Rules, that is to say, the 7th Amendment Rules, that came to be enforced w.e.f. 04.12.2019, do not affect a selection process already commenced, measures to facilitate taken in the interregnum prior to introduction of the amended Rules would not apply likewise to a selection process already commenced. This is precisely the case with the selection of the Headmistress of the Institution.

21. A perusal of the 7th Amendment Rules shows that these Rules by virtue of sub-Rule (2) of Rule 1 are ordained to come into effect from the date of their publication in the Gazette. There is nothing to show in the amended Rules, either expressly or by necessary implication, that these have retrospective operation. The principle adumbrated by the Full Bench in Santosh Kumar Singh, therefore, would apply to save the process of selection for the post of Headmistress of the Institution, that was initiated much before the 7th Amendment Rules were enforced. In fact, the process of selection was completed before the 7th Amendment Rules were notified. The process of selection would, therefore, be governed by the Rules of 1978, unaffected by the 7th Amendment Rules.

22. As already remarked, if the 7th Amendment Rules do not affect the selection process for the post of Headmistress of the Institution commenced much earlier, the measures taken by the State Government in interregnum to facilitate the application of the new regime under the 7th Amendment Rules, would not affect the validity of the selection process either. After all, the ban on selection, assuming that it could be orally imposed by the Additional Chief Secretary, pending enforcement of the 7th Amendment Rules, would not affect the validity of the selection process, because the ban was only an interim measure in aid of the 7th Amendment Rules. If it be assumed further that the ban would nevertheless stall the ongoing selection process, already near completion, when it was orally issued by the Additional Chief Secretary, the recruitment process, upon the 7th Amendment Rules coming into force, would have to be carried to its logical conclusion as the 7th Amendment Rules would not affect it. The two Government Orders dated 26.09.2019 and 31.10.2019 are also in the nature of measures issued in aid of the then contemplated 7th Amendment Rules. The ban imposed under those orders would have like effect as the oral orders of the Additional Chief Secretary issued earlier imposing the ban. The selection process relating to the post of Headmistress would remain unaffected.

23. No other point was pressed.

24. In view of what has been said above, we do not find any good ground to interfere with the judgment and order impugned.

25. The appeal fails and is dismissed.

26. Costs easy.

Order Date :- 17.3.2023 Anoop (J.J. Munir) Judge (Pritinker Diwaker) Acting Chief Justice

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