Allahabad High Court
Harish Chand vs Joint Director Of Education, Meerut And ... on 24 August, 2000
Equivalent citations: 2000(4)AWC2726, (2000)3UPLBEC2341
JUDGMENT S.R. Singh, J.
1. Public Inter College, Siyana, District Bulandshahr is a recognised 'institution' within the meaning of clause (e) of Section 2 of the U. P. Secondary Service Selection Boards Act, 1982 (in short the 'Act'). Petitioner is a confirmed L.T. grade teacher in the institution wherein a vacancy in the post of Lecturer in English occurred on 30.6.1991 on retirement of the incumbent Shri Ratan Chand Rastogi. Petitioner is admittedly the senior most teacher of the 'institution' in the L.T. grade. Though the petitioner is triple M. A. he did M. A. in English in the year 1993. Vacancy in the post of Lecturer in English is admittedly to be filled in by promotion.
2. The question that arises for consideration in the instant case is as to whether the petitioner is eligible and qualified for being considered for appointment as Lecturer in English in the vacancy which occurred on 30.6.1991 due to retirement of the-incumbent Shri Ratan Chand Rastogi. The institution is under the management of authorised controller and it appears that steps were not taken by the authorised controller to fill up the vacancy in English Lecturer whereupon the petitioner filed a writ petition being Civil Misc. Writ Petition No. 18076 of 1996 which came to be disposed of vide judgment and order dated 23.5.1996 thereby directing the District Inspector of Schools to take appropriate decision in the matter in accordance with law, in the Judgment, it has been clarified by the Court that in case the petitioner's case finds favour with the District Inspector of Schools, the latter would direct the management committee to pass appropriate orders. The District Inspector of Schools by his order contained in the letter annexed as Annexure-2 directed the authorised controller that if the post fell in the promotion quota a resolution be passed for promotion of the petitioner and requisition in quadruplicate in the prescribed proforma be sent to the former so that further action in the matter be ensured. The authorised controller passed a resolution on 8.5.1998 for promotion of the petitioner who, according to the authorised controller, was eligible and qualified for promotion to the post in question being the senior most teacher in L. T. grade possessing the qualification of M. A. in English. The resolution was forwarded to the District Inspector of Schools who in turn forwarded the same together with other papers to the Regional Joint Director of Education vide letter dated 19.11.1999 followed by communication dated 2.2.2000. The Joint Director by his order dated 19.6.2000 contained in letter dated 20.6.2000 (Annexure-5) informed the District Inspector of Schools that upon consideration of the matter, the Selection Committee could not approve of the resolution for promoting the petitioner to the post of Lecturer in English due to the reason that on the date of occurrence of vacancy, namely. 1.7.1991, he was not qualified to be appointed Lecturer in English in that he passed M. A. in English in the year 1993.
3. Sri Vinod Sinha, learned counsel appearing for the petitioner vehemently urged that in view of Regulation 14 of the U. P. Secondary Education Service Commission Rules. 1995 (in short the new Rules), the question whether the petitioner was possessed of the requisite qualification for being promoted to the post in question ought to be decided with reference to "the first day of the year of recruitment" and not with reference to "the date of occurrence of vacancy." On the other hand, Sri Ashok Khare appearing for the contesting respondent urged that Rule 14 of the new Rules would have no application in respect of a vacancy which occurred prior to the enforcement of the Rules, i.e., May 8.
1995. The vacancy in the instant case, according to Sri Ashok Khare, would be governed by Rule 9 of the old Rules i.e., the U. P. Secondary Education Service Commission Rules, 1993 which clearly visualised that where a vacancy in Lecturer grade was to be filled by promotion only such teachers working in L. T. grade were to be considered for promotion to the Lecturer grade, without their having applied for the same as were possessed of the minimum qualifications and had put in at least 5 years continuous service as teacher 'on the date of occurrence of vacancy". The question that crops up for consideration is whether Rule 14 of U. P. Secondary Education Service Commission Rules. 1995, and for that purpose Rule 14 of the U. P. Secondary Education Service Selection Board Rules. 1998 are retrospective in effect so as to embrace within its sweep, vacancies occurring during the enforcement of the U. P. Secondary Education Service Commission Rules. 1993. It has been submitted by Sri Khare that on the date of enforcement of the new Rules, his client had an existing right for being considered for promotion to the post of Lecturer in English to the exclusion of the petitioner which right, proceeds the submissions, cannot be taken away by subsequent amendment in Rules.
4. I have given my anxious consideration to the submission made across the Bar. The petitioner was indisputably not qualified to be considered for appointment as Lecturer in English on 30.6.1991 i.e., "on the date of occurrence of vacancy' while Sri Yogendra Singh Nain was within the field of eligibility being qualified to be promoted to the post "on the date of occurrence of vacancy". Relevant date for qualification under Rule 9 of the U. P. Secondary Education Service Commission Rules, 1983 was 'the date of occurrence of vacancy' whereas under Rule 14 of the new Rules, i.e., 1995 Rules and 1998 Rules, it is 'the first day of the year of recruitment.' "The Union Parliament as also State Legislatures have plenary powers to legislate within the field of legislation committed to them and subject to certain constitutional restrictions, they can legislate prospectively as well as retrospectively. It is. however, a cardinal principle of construction that every statute is prime prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable inhere the object of the statute is to affect vested right or to impose new burdens or to impair existing obligations.....The rule against retrospective operation is, however, not applicable to a statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing. If that were not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of the statutes'. Principles of Statutory Interpretation by G. P. Singh, 6th Edn., P. 315-317. A teacher in L. T. grade qualified for promotion on the date of occurrence of vacancy has a vested right not to be deprived of his right to be considered for promotion to lecturer grade by subsequent amendment in rules unless such amendment is made retrospective, expressly or by necessary implication. But no teacher can have a vested right against inclusion in the field of consideration of any other teacher by altering eligibility conditions or by changing the cut-off-date for the purpose of qualification and experience.
5. Rule 14 of the new Rules has enlarged the field of eligibility in that teachers acquiring qualification and completing five years teaching experience on 'the first date of the year of recruitment' have also become eligible for promotion under the new Rules which will govern all future selection for appointment by promotion in substantive vacancy except in relation to actual vacancies for which the process of selection had already commenced under the old Rules. In my opinion, vacancies in respect of which the process of selection had not commenced prior to May 8, 1995, i.e., prior to the date on which the Uttar Pradesh Secondary Education Service Commission Rules, 1995 were notified and all 'likely' vacancies falling in the promotion quota will be governed by Rule 14 which will not become retrospective merely because it is applied to preexisting vacancies for until the process of selection begins by notification of vacancies under Section 10 of the Act, it will be only a matter of any body's guess as to whether a particular vacancy is to be filled by promotion or by direct recruitment and whether it is in general quota or in the quota of O.B.C./S.C./S.T.. An indeterminate right cannot be termed a vested right. The rule will become retrospective only if it is applied to 'existing' vacancies already notified in prescribed proforma, i.e., Appendix 'A' to be filled by promotion.
6. The Legislature and, for that purpose, the rule-making authority have the power to alter the eligibility conditions as also the cut-off-date for the purpose of qualification and experience. But such alteration in rules should normally not affect vested right or right accrued or obligation incurred under the existing Rules. Yogendra Singh Nain's right to be considered has not been taken away by the new Rules in that he is not excluded from the zone of consideration. But he had no right to be considered for promotion until the vacancy was determined/notified to be filled in by promotion. In the words of S.R. Das, C. J., "The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed" Garika Pati Veerya v. N. Subiah Chaudhary, ASR 1957 SC 540. The principle aforesaid has also been applied in A. A. Colton v. Director of Education, AIR 1983 SC 1143, to selection for appointment to a post. In that case, proceedings for selection to the post of Principal were pending before the Director of Education under Section 16F of the U. P. Intermediate Education Act, 1921 when the Act was amended taking away the power of the Director to make an appointment. It was held that the amending Act could not, in the absence of express words or necessary implication, be construed to take away the power of the Director in the pending proceedings for selection. The respondent Yogendra Singh Nain could be said to have acquired the right to be considered for promotion to the exclusion of petitioner only upon a finding that the vacancy in question was determined and notified to the Commission/Selection Board for recruitment by promotion prior to May 8, 1995. On the other hand, if it is found that the vacancy was determined and notified to be filled by promotion under the new Rules, the petitioner will also be entitled to be considered.
7. Shri Ashok Khare placed reliance on Y.V. Rangaiah and others v. J, Sreenivasa Rao and others, (1983) 3 SCC 284, in support of his contention that the vacancies in promotional quota occurring prior to the new rules have to be filled up in accordance with old rules and, therefore, teachers who were not eligible and qualified on the date of occurrence of the vacancies cannot be considered for promotion. In that case. Lower Division Clerks were eligible along with Upper Division Clerks for promotion to the post of Sub-Registrar Grade-II under the unamended Andhra Pradesh Registration and Subordinate Service Rules which visualised that the select list would be prepared in the month of September every year so as to be in force until the list of approved candidates for the succeeding year is prepared. The grievance of the petitioners therein was that list of the approved candidates was not prepared on due date and instead it was considerably delayed and was drawn up only after the amended rules came into force whereby the original rule providing for consideration of Lower Divisional Clerks for appointment as Sub-Registrars Grade-II were done away with and promotion or transfer to that category of post came to be limited 1C Upper Division Clerks employed in the Registration and Stamps Department. The argument for the petitioners therein was that by delaying the preparation of list of approved candidates till after the rules were amended, their chances for consideration for appointment to higher post were adversely affected in that had a list been prepared as on due date in accordance with the rules and instructions then operating, the petitioners therein would have, by virtue of their higher seniority among the Lower Division Clerks, stood a fair chance of being appointed to the higher post of Sub-Registrar Grade-II. It was in this background that the Supreme Court held that the vacancies which had occurred prior to the amended Rules would be governed by the old rules and not by the amended rules. In the instant case, the new Rules have only extended the field of eligibility without in any manner taking away any vested right of those teachers who were eligible and qualified for promotion on the date of occurrence of vacancy under the old Rules. The ratio of the decision aforestated should be appreciated in the context of the rules involved and the arguments advanced therein. For the reasons discussed above. I am of the view that the decision aforestated would not help the contesting respondent unless it is found as a fact that the vacancy in question was notified to be filled by promotion prior to 8.5.1995.
8. Reliance was then placed on State of Rajasthan v. R. Dayal and others, (1997) 10 SCC 419, in support of the contention that the post which fell vacant prior to the amendment of rules would be governed by the original Rules and not by amended rules. Y. V. Rangaiah (supra) has been relied in the decision aforestated. But the exposition of law laid down therein that the post which fell vacant prior to the amendment of the rules would be governed by the original rules and not by the amended rules will have to be appreciated in the backdrop of the facts of that case. Departmental Promotion Committee in that case was convened on 13.4.1995 under the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 against nine existing and anticipated vacancies as on 1.4.1995. The Departmental promotion committee recommended nine candidates in accordance with the eligibility conditions prescribed in the recruitment rules then existing. On 24.7.1995 the recruitment rules were amended in which eligibility conditions were changed. The amendment came into force with immediate effect. The dispute was in respect of two vacancies that arose subsequent to the amendment of the Rules. The panel prepared by the D.P.C. was inclusive of these two anticipated vacancies that actually occurred after the rules were amended thereby changing the eligibility criteria. The Supreme Court held that though the actual vacancies which had arisen prior to amendment of the rules could be filled in accordance with the old rules, the vacancies that arose subsequent to the amendment of the Rules "ought to be filled up in accordance with law existing as on the date when the vacancy arose". The Supreme Court observed : "Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the Rules, But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case." Appointments on the basis of selection made as per the rules, in 'the vacancies existing prior to the amendment, was held valid but so far as the vacancies arising subsequent to the amendment of the rules are concerned it was held that such vacancies ought to be filled in accordance with amended rules. This decision too could be pressed in service against the rule of retrospectivity only if it is found that the vacancy had been notified to be filled by promotion and the process of selection had commenced prior to 8.5.1995.
9. In B.L. Gupta and another v. M.C.C., (1998) 9 SCC 223, the propositions laid down in the aforesaid cases has been reiterated. But for the reasons discussed above. I am of the view that new Rules in the present case will not affect selection and appointment against vacancies in respect of which selection process had commenced prior to the enforcement of the new Rules while vacancies which had not been determined and notified to the Commission/Service Selection Board prior to the enforcement of the new Rules would be governed by the new Rules.
10. Conclusions deducible from the above discussion may be summed up as under :
(a) Right of a L. T. grade teacher to be considered for permanent promotion to lecturer grade under the Act and the Rules arises only after a vacancy of permanent nature is notified under Section 10 of the Act to be filled up by promotion and until it is so done, the right to promotion in relation to the vacancy remains an indeterminate right as distinguished from a vested right ;
(b) Eligibility conditions and cut-off-date for qualification can be altered at any time by the Legislature or the rule-making authority but such alteration will not affect a vested right unless the amendment is, expressly or by necessary implication, given a retrospective operation ;
(c) Rule 14 of the new Rules will not become retrospective merely because it is applied to vacancies existing as on 8.5.1995 :
(d) The cut-off-date for qualification and experience for promotion in a vacancy existing as on 8.5.1995 will be 'the first day of the year of recruitment' except where the vacancy has already been notified to be filled by promotion in which event the cut-off-date will be 'the date of occurrence of vacancy' ;
(e) Promotion to an anticipated vacancy even if already notified for recruitment by promotion will be governed by the new Rules.
11. In view of the above discussion, the order impugned herein cannot be sustained for the reasons that the question regarding eligibility does not appear to have been examined in correct perspective and in accordance with law as explained above.
12. Accordingly, the writ petition succeeds and is allowed. Impugned order dated 20.6.2000 (Annexure-5 to the writ petition) is quashed. The Regional Joint Director of Education is directed to place the matter before the selection committee for reconsideration of the question regarding promotion to the post of Lecturer (English) in the college in accordance with law and in the light of the observations made in this judgment expeditiously, if possible, within a period of four months from the date of production of certified copy of this Judgment before him.