Case: Balbir Kaur and Anr Vs. U.P. Secondary Education Services Selection Board, Allahabad and Ors

4. Challenge in this batch of appeals is to a common judgment rendered by a Division Bench of the High Court of Judicature at Allahabad in Special Appeal No. 159 of 2001 and other connected appeals, partly disagreeing with and reversing the view of the learned Single Judge in regard to the selection of Principals of various institutions, by direct recruitment.5. To comprehend the controversy in these cases, it would suffice to refer to the facts in SLP (C) Nos.19335-19336 of 2003, which was otherwise treated as the lead case.6. On 12th August, 1998, 24th December, 1999 and 3rd March, 2002, U.P. Secondary Selection Board (hereinafter referred to as the Board) issued advertisements inviting applications for direct recruitment to the posts of teachers, lecturers and the heads of several Institutions. In these appeals we are concerned with the selection of heads of the Institutions/Principals. The advertisements were issued under the U.P. Secondary Education Selection Board Act, 1982 (hereinafter referred to as the Principal Act). In the advertisement, the vacancies for the post of Principal in respective Institutions were indicated regionwise. The candidates were to be considered regionwise and results were also to be declared regionwise. The candidates were required to give the choice of not more than three institutions in order of preference and if he wanted to be considered for any particular institution or institutions and not for other institutions he could mention this fact in the application. In addition to the candidates applying directly, the Board was also required to consider the names of two senior-most teachers of the Institution concerned. These two senior-most teachers were not required to apply but their names were to be forwarded by the management in accordance with Rule 11 (2) (b) of the U.P. Secondary Education Services Selection Board Rules, 1998 (for short `the 1998 Rules). Nonetheless, they could apply for other Institutions as well.7. The said advertisements were challenged by the Principals, who were already heading some institutions on ad-hoc basis, and the senior-most teachers of various institutions mainly on the grounds that : (i) the cut off date i.e. 6th August, 1993 fixed by the 1998 amendment, for regularizing the ad-hoc Principals/teachers was arbitrary, discriminatory and violative of Article 14 of the Constitution of India (ii) the exclusion and inclusion of candidates eligible for selection was not in conformity with Appendix A of Regulation 1 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921 (for short `the Intermediate Act) (iii) the regionwise consideration and declaration of the result for the post of Heads of the Institution, unlike the teachers, was violative of Articles 14 and 16 of the Constitution; (iv) sub rule (5) of Rule 12 was unreasonable and discriminatory as it gave undue importance to educational qualifications and no importance to the service record; (v) the manner of allocation of marks and the selection process was arbitrary and (vi) the Principal Act did not provide for any reservation for the post of the Head of the Institution for backward class or scheduled caste or scheduled tribe candidates, which was contrary to the provisions and in violation of the U.P. Public Service (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994 (for short the 1994 Act).8. On the basis of rival stands of the parties, including the State, the learned Single Judge formulated as many as 15 points for determination.9. The learned Single Judge answered all the 15 points, so formulated, against the writ petitioners. Consequently, vide order dated 14th February, 2001, all the writ petitions were dismissed.10. Being aggrieved, the writ petitioners carried the matter in Special Appeals to the Division Bench. The Division Bench affirmed the view taken by the learned Single Judge on all the points except on one point (No.(iii)), namely, in regard to the requirement of minimum qualification mentioned in the advertisements. The Division Bench held that under sub rule (5) of Rule 15 of the Rules, the qualification as laid down in Appendix A of Regulation 1 of Chapter II of the Intermediate Act had been adopted for appointment to the post of teachers, which includes Principals. For the post of Principal, the said provision provides only for 4 years teaching experience of class IX to XII and not the teaching experience of 4 years as Lecturer, as prescribed in the advertisements. Therefore, by prescribing in the advertisement 4 years teaching experience as a Lecturer, the Board had exceeded its jurisdiction, which, being contrary to law could not be permitted. Thus, the Division Bench came to the conclusion that the advertisement issued by the Board prescribing teaching experience of 4 years as Lecturer for the post of Principal of an Intermediate College was contrary to the statutory requirement of academic qualifications stipulated in Appendix A of Regulation 1 of Chapter II of Intermediate Act, as adopted by sub rule 5 of Rule 15 of the Rules and as a result thereof it was possible that many candidates having 4 years teaching experience of class IX and X could not apply, resulting in serious prejudice to them. Accordingly, the appeals were allowed and the selections made in pursuance of the said advertisements were set aside. It is this common judgment which is questioned in these appeals by the selected candidates.11. Although we have heard learned counsel for the parties on all the issues which have been answered by the Division Bench against the writ petitioners, we shall first deal with the central point, namely, the prescription of minimum teaching experience as Lecturer, stipulated in the impugned advertisements, on which the Division Bench disagreed with the learned Single Judge and has struck down the advertisements and quashed the entire selection process for the said post.

Court's reasoning:
20. It is trite that true nature of a statutory provision has to be determined from the content of the provision, its import gathered from the language implied and the language construed in the context in which the provision was enacted. In Dattatraya Govind (supra) and Rani Choudhury (supra), this Court has said that mere description of a certain provision, such as explanation, is not decisive of its true meaning. It is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention. In Dattatraya Govinds case, it was observed that the legislature has different ways of expressing itself and in the last analysis the words used alone are the true repository of legislative intent.21. Applying the aforenoted principles, we are of the opinion that the `Note appended to sub rule (5) of Rule 12 of the 1998 Rules has the effect of modifying the conditions of qualifying experience mentioned in Appendix A of the Regulations under the Intermediate Act.22. Having come to the said conclusion, the issue which still survives for consideration is whether for appointment to the post of Principal, the qualifying experience as stipulated in the said `Note would apply or the one prescribed in the Appendix-A to Regulation I of Chapter II of the Regulations made under the Intermediate Act. In our view, answer to the question can be found in Section 32 of the Principal Act, which provides that the provision of the Intermediate Act and Regulations made thereunder will continue to be in force in case they are not inconsistent with the Principal Act and the Rules made thereunder. As noted hereinbefore `Note to sub rule (5) of Rule 12 of 1998 Rules prescribes the requirement of experience for the post, which is different from what is prescribed in the said Appendix A and, therefore, there being a conflict between the two provisions, in the teeth of Section 32, the said `Note shall have an overriding effect over Appendix A insofar as the question of experience is concerned. In this view of the matter, we are in agreement with the learned Single Judge that the impugned advertisements were in conformity with the said `Note and, therefore, the selection procedure could not be faulted on that score. We do not think that the contention of the writ petitioner that some persons who had essential qualifications had been excluded from consideration or any person who ought not to have been considered for the said post had been considered for selection, is well founded. We have, therefore, no hesitation in holding that the Division Bench had erred in law in reversing the decision of the learned Single Judge on theHaving examined the issue in the light of the 1994 Act, Section 10 of the Principal Act and the settled position in law, we are of the view that the stand of the respondents is not well founded. Under Section 10 of the Principal Act, the management is required to intimate the number of vacancies to be filled by way of selection by direct recruitment. While doing so, the management is also required to intimate the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens in accordance with the 1994 Act. However, Section 10 expressly excludes the post of the Principal from the purview of the 1994 Act. Thus, from a plain reading of the said provision, the intention of the Legislature is manifestly clear. The legislature, in its own wisdom did not think it proper to provide for any reservation under the 1994 Act for the post of head of the institution. Indubitably, there is no challenge to the validity of Section 10 of the Principal Act. Moreover, the post of the Principal in an educational institution being in a single post cadre, in the light of the clear dictum laid down by this Court, such a post cannot be subjected to reservation. It will result in 100 per cent reservation, which is not permissible in terms of Articles 15 and 16 of the Constitution of India. In PGI Chandigarhs case (supra) a Constitution Bench of this Court, while holding that plurality of posts in a cadre is a sine qua non for a valid reservation, affirmed the view taken in Chakradhar Paswan Vs. State of Bihar and Ors.(1988) 2 SCC 214. In that case, it was held that there cannot be any reservation in a single post cadre and the decisions to the contrary, upholding reservation in single post cadre either directly or by device of rotation of roster were not approved. Besides, as noted above, neither the Principal Act, nor the rules made thereunder or the 1994 Act provide for clubbing of all educational institutions in the State of U.P. for the purpose of reservation and, therefore, there is no question of clubbing the post of the Principals in all the educations institutions for the purpose of applying the principle of reservation under the 1994 Act. We are, therefore, in agreement with the High Court that the advertisements impugned in the writ petition were not vitiated for want of provision for reservation. It is also pertinent to note that none of the respondents belong to the reserved category of Scheduled Castes or Scheduled Tribes or other Backward Classes. All of them are from the general category. Therefore, even otherwise they have no locus standi to raise the plea of reservation.29.It was then contended by learned counsel for the respondents that under Section 10 of the Principal Act, vacancies are to be notified in respect of each year of recruitment and if the vacancies are clubbed together, the basic purpose of notifying the vacancies every year in terms of the said Section will get frustrated, which cannot be permitted in law. According to the learned counsel, since the vacancies have to be notified each year it would naturally mean that they are also to be filled up each year from amongst the eligible candidates available in respect of that recruitment year.Therefore, the person who became eligible subsequently could not be considered in respect of the vacancies occurring in respect of the earlier recruitment year. The stand of the learned counsel is that in the present recruitment, the Board wrongly clubbed all such vacancies by taking recourse to the second proviso to Rule 11(2) (a) of the 1998 Rules. Learned counsel asserts that in the light of clear provision of Section 10 of the Principal Act, the said Rule cannot be resorted to.30. We do not find much substance in the contention. Section 2(l) of the Principal Act, as amended by the U.P. Secondary Service Commission and Selection Board (Amendment) Act, 1992 defines "year of recruitment" to mean a period of twelve months commencing from 1st day of July of a calendar year. Section 10 of the Principal Act prescribes the procedure for determination of number of vacancies and directs the management to determine the number of vacancies, `existing or likely to fall vacant during the year of recruitment. On a bare reading of the provision, it is manifestly clear that when a selection is held in a "year of recruitment" then all the existing vacancies and the vacancies likely to fall vacant during the year of recruitment are clubbed and notified. Moreover, Section 11 of the Principal Act also contemplates preparation of a panel of the selected candidates with respect to the vacancies notified under Section 10(1) thereof. It is clear that though it may be desirable for better administration but neither Section 10 nor 11 of the Principal Act nor the 1998 Rules as such mandate that selection or determination of vacancies must be yearwise and, therefore, all the vacancies which are "existing or which are likely to fall vacant during the year of recruitment" can be clubbed irrespective of the year of occurrence of the vacancy. Moreover, second proviso to Rule 11 (2) (a) also contemplates that the vacancies existing on the date of commencement of these Rules as well as the vacancies which are likely to arise on 30th June, 1998, shall be included in the consolidated statement by the management and sent to the Board for making selection which shows that all the existing vacancies irrespective of the year of occurrence can be clubbed for being filled up together by the Board. In this view of the matter, it cannot be said that Rule 11(2) (a) is in conflict with the provisions of Section 10(1) of the Principal Act, as is sought to be pleaded on behalf of the respondents. We have, therefore, no hesitation in endorsing the view taken by the High Court that the Board and the Management have not committed any error in clubbing vacancies which were existing on the date of selection.We are of the view that insofar as the final results are concerned, the issue raised is of no consequence. Admittedly, there was no ambiguity in the Hindi version of the said Appendix, which had been followed by the Board. Though, technically the respondents stand that the corrigendum had not been issued strictly as per the procedure prescribed may have some substance but we are convinced that in the final analysis no prejudice has been caused to them because the stated discrepancy had been rectified and the English version had been brought in consonance with the Hindi version. In this view of the matter, we deem it unnecessary to dilate on the scope and effect of Article 348(3) of the Constitution, to which reference was made by learned counsel for theIn the present case, neither Section 10 of the Principal Act nor any other statutory provision forbids regionwise selection. Besides, no restriction was imposed upon the candidates insofar as their choice for the regions was concerned. An eligible candidate could apply in any of the regions and his application was to be considered in accordance with the Rules. It has neither been pleaded nor can it be held that the right of any eligible candidate to apply in a particular zone was curtailed or that an equal opportunity to compete had been denied to the respondents. It is not even the case of the respondents that a less meritorious candidate has been selected on account of regionwise selection. The ratio of the decisions, relied upon by learned counsel for the respondents is not attracted to the facts of the present case. In the aforenoted decisions, zonewise, districtwise and unitwise allocation of seats and/or preparation of separate merit list for each zone in respect of candidates who appeared at the centres within the same zone were held to be discriminatory on the ground that by resorting to these procedures, the objective of selecting the best possible candidates was defeated. In all these cases, the petitioners had successfully demonstrated that as a result of zonewise or districtwise allocations, more meritorious candidates were denied admissions/employment and candidates with low merit were selected, which is not the case here. As noted above, in the present case the respondents have neither pleaded nor placed on record any material to show that as a result of regionwise selection they have not been selected despite the fact that they were more meritorious as compared to the selected candidates. In our opinion, therefore, the selection process cannot be struck down as violative of the principles enunciated in Articles 14 and 16 of the Constitution.We are unable to persuade ourselves to agree with learned counsel for the respondents. Admittedly, Section 33C of the Principal Act was inserted with effect from 20th April, 1998 providing for the regularization of ad-hoc Principals who had been appointed by promotion on or after 31st July, 1988 but not later than 6th August, 1993, in accordance with Section 18 of the Principal Act, which pertained to ad-hoc appointments. Section 16 of the Principal Act which contemplates that all appointments will be made through the Selection Board, was substituted by the 1993 Amendment Act and was enforced with effect from 7th August, 1993. It prohibited appointments of teachers and heads of the institutions, except on the recommendation of the Commission. However, by virtue of Section 1(2) of the 1993 Amendment Act, the date of enforcement of the Amendment Act was left to the State Government and it was by virtue of Notification dated 7th August, 1993 that the State Government prescribed 7th August, 1993 as the date on which the Amendment Act except Section 13 thereof was to come into force. Though Section 18 was reintroduced by the 1995 Amendment Act with certain conditions yet the Legislature fixed 6th August, 1993 as the cut off date as the State Government had decided to make regular selections and steps in that behalf had already been initiated. Thus, it cannot be held that fixing of 6th August, 1993 as the cut off date for regularization is arbitrary or whimsical, warranting interference by the Court. Moreover, the State is not obliged to regularize all ad-hoc appointments merely on the strength of their continuance on the post for a long period, particularly when theirwere not made by following a due process of selection as envisaged in the relevant rules.