Balbir Kaur & Anr vs U.P. Sec. Edu. Service Selection Board & Ors.

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

8 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.

9

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

1 0 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.

1 1

12.Mr. Rakesh Dwivedi, learned senior counsel appearing in

the lead case for the selected candidates, the appellants

herein, submitted that in the light of the `Note' appended to

sub-rule (5) of Rule XII of the 1998 Rules, the requirement of

minimum experience as stipulated in Appendix A of

Regulation 1 of Chapter II of the Regulations framed under the

Intermediate Act, stands modified and, therefore, the

advertisements being in conformity with the `Note' could not

be struck down as being in conflict with the said Appendix.

Learned counsel argued that the `Note' expresses the

legislative intent and being a part of the Rules, framed in

terms of Section 35 of the Principal Act, has full efficacy and

cannot be ignored. In support of the proposition that

Notes/Explanations are one of the modes by which the

legislature expresses itself and the words used therein alone

being the repository of legislative intent, any `Note' or the

`Explanation' must be construed according to its plain

language and not on a priori considerations, reliance was

placed on the decisions of this Court in Dattatraya Govind

Mahajan & Ors. Vs. State of Maharashtra & Anr.1, Rani 1 (1977) 2 SCC 548

1 2 Choudhury Vs. Lt. Col. Suraj Jit Choudhury2 and M/s.

Aphali Pharmaceuticals Ltd. Vs. State of Maharashtra &

Ors.3. It was also contended that in view of Section 32 of the

Principal Act, the said Appendix has to give way to the new

Rules and, therefore, with regard to the post of a Principal,

insofar as the experience is concerned, the minimum

qualification would stand modified in terms of the said `Note'.

It is, thus, asserted that there is no conflict between the

contents of the impugned advertisements and the relevant

Rules.

13.Dr. R.G. Padia, learned senior counsel appearing on behalf

of the ad-hoc Principals, on the other hand, submitted that

insofar as the academic qualifications under Rule 5 of the

1998 Rules are concerned, qualifications specified in

Regulation 1 of Chapter II of the Regulations made under the

Intermediate Act having been adopted for the purpose of 1998

Rules as well, the minimum qualification for the post of

Principal cannot be at variance with what is specified in the

said Appendix, which includes experience of teaching classes 2 (1982) 2 SCC 596 3 (1989) 4 SCC 378

1 3 IX to XII and, therefore, experience of teaching classes IX & X

had been erroneously excluded in the impugned

advertisements. It is pleaded that Rule 12 (5) of the 1998

Rules cannot have the effect of altering or modifying the

conditions of qualifying experience mentioned in the Appendix

of the said Regulations.

14.In order to appreciate the rival stands on the issue, it would

be expedient to briefly notice the historical background of the

statutory provisions relating to the selection of heads of

educational institutions in the State of U.P. Prior to the

enactment of the Principal Act, by U.P. Act No.5 of 1982,

selections for the posts of Head of the educational institutions

were made as per the provisions of the Intermediate Act by the

Selection Committee constituted by the Committee of

Management, managing the institution, with the prior

approval of the concerned District Inspector of Schools.

Minimum qualifications for the post of the Head in an

Institution were prescribed in Appendix A in reference to

Regulation 1 of Chapter II of the Intermediate Act. However,

with the coming into force of the Principal Act, with effect from

1 4 14th July, 1981, selections for the posts were entrusted to a

Commission, in order to ensure that good and competent

persons were selected and appointed to the said posts.

Relevant rules in this behalf were framed by the State

Government for the first time in the year 1983, called the U.P.

Secondary Education Services Commission Rules, 1983.

However vide Notification dated 13th July, 1998, the 1998

Rules, enforced with effect from 8th August, 1998, were

notified. As noted above, selections in question were held

under the 1998 Rules.

15. It appears that in order to obviate the difficulty faced by the

ad-hoc teachers and the Principals/Heads of the Institution,

who had been continuing on the post for a long time and to

bring an end to adhocism, the Principal Act was amended in

the year 1985 by which Section 31-A was inserted,

regularizing certain appointments. Another amendment was

made in the Principal Act in the year 1991, inserting Section

33-A for regularizing some more ad-hoc appointments. It was

enforced on 7th August, 1993. In the year 1993, by another

amendment in the Principal Act, Section 33-B was introduced,

1 5 regularizing some more ad-hoc appointments. In the year

1995, by way of an amendment in the Principal Act, enforced

with effect from 28th December, 1994, four Regional Selection

Boards, which were established by the 1993 amendment, were

abolished and one Commission for the entire State was

provided for. In the year 1998, yet another amendment,

effective from 20th April, 1998, was made to the Principal Act,

entrusting the entire selection process to the Board in place of

the Commission. By the said amendment, Section 33-C was

also inserted in the Principal Act by which ad-hoc teachers

and Heads, who were appointed not later than 6th August,

1993, were sought to be regularized.

16.The pivotal Rule 5 of the 1998 Rules, prescribes academic

qualifications for appointment to the post of teacher. It reads

as follows:

"5.Academic qualifications.-A candidate for appointment to a post of teacher must possess qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921."

1 6 17.Chapter II of the Intermediate Act deals with appointment

of heads of institutions and teachers. Regulation 1 of the said

Chapter stipulates that the minimum qualification for

appointment as heads of institutions and teachers in any

recognized institution, whether by direct recruitment or

otherwise, shall be as given in Appendix A. As per the said

Appendix, the essential qualification for the post of head of the

institution is as follows:

"Essential Qualification S.No. Name of the post & Age Desirable educational training qualification experience 1 2 3 4 1 7

1. Head of the institution Mini (1) Trained M.A. or mum M.Sc. or M.Com. or 30 M.Sc. (Agri) or any years equivalent post-

graduate or any other degree which is awarded by corporate body specified in above-

mentioned para one and should have at least teaching experience of four years in classes 9 to 12 in any training institute or in any institution or University specified in above-mentioned para one or in any degree college affiliated to such University or institution, recognized by Board or any institution affiliated from Boards of other States or such other institutions whose examinations are recognized by the Board, or should the condition is also that he/she should not be below 30 years of age.

Or

1 8 2. First or second class post-graduate degree along with teaching experience of ten years in intermediate classes of any recognized institutions or third class post-graduate degree with teaching experience of fifteen years.

Or

3. Trained post-graduate diploma-holder in science. The condition is that he has passed this diploma course in first or second class and have efficiently worked for 15 or 20 years respectively after passing such diploma course."

18.Part III of the 1998 Rules lays down the procedure for

recruitment to various categories of teachers. Rule 10 (a)

thereof provides that the mode of recruitment of Principal of

an Intermediate College or Headmaster of a High School shall

be by direct recruitment. The number of vacancies for the

purpose of direct recruitment are determined and notified in

1 9 the manner laid down in Rule 11. Rule 12 lays down the

procedure for direct recruitment. Relevant portion thereof

reads thus:

"12. Procedure for direct recruitment.-

(1) The Board shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens in at least two daily newspapers, having wide circulation in the State, and call for the applications for being considered for selection in the proforma published in the advertisement.

For the post of Principal of an Intermediate College or the Headmaster of a High School, the name and place of the institution shall also be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.

(2) ... ... ...

(3) ... ... ...

(4) The Board shall prepare lists for each category of posts on the basis of quality points specified in Appendix `B' or Appendix `C', as the case may be, marks in written examination and marks for experience as follows:

2 0

(i) 30 per cent marks on the basis of quality points;

(ii) 40 per cent marks on the basis of the written examination; and

(iii) 20 per cent marks for experience more than the required experience in such manner that 4 marks shall be allotted for having doctorate's degree and 2 marks shall be given for each year of such experience with maximum of 16 marks.

Notes (1) - The teaching experience for this purpose shall be counted only for the recognized High School/Intermediate College(s) or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Headmaster and countersigned by the District Inspector of Schools or Zila Basic Shiksha Adhikari, as the case may be, with full name of the countersigning authority.

(2) Any Wrong information submitted in this regard shall make the applications of such candidates liable to be rejected and for this the candidate himself shall be solely responsible.

(5) The Board shall, in respect to the selection for the post of Headmaster and Principal, allot the marks in the following manner-

2 1

(i) 60 per cent marks on the basis of quality points specified in Appendix `D';

(ii) 20 per cent marks for having experience more than the required experience, 1 mark for each research paper published with a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks; and

(iii) 10 per cent marks for having doctorate degree.

Note.- For the purpose of calculating experience the service rendered as Headmaster of Junior High School or as assistant teacher in a High School/Intermediate College shall be counted in the case of selection of Headmaster; and for selection of Principal, the service rendered as Headmaster of a High School or as a Lecturer shall only be counted. The provision of sub-rule (4) of Rule 12 regarding the certificate of experience shall mutatis mutandis apply.

(6) The Board, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and Other Backward Classes of citizens in respect of the post of teacher in lecturers and trained graduates grade, call for interview such candidates who have secured the maximum marks under sub-

clause (4) above and for the post of Principal/Headmaster, call for interview

2 2 such candidates who have secured maximum marks under sub-clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies.

Provided that in respect of the post of the Principal or Headmaster of an institution the Board shall also in addition call for interview two senior-

most teachers of the institution whose names are forwarded by the Management through Inspector under Clause (b) of sub-rule (2) of Rule 11.

(7) The Board shall hold interview of the candidates and 10 per cent marks shall be allotted for interview. The marks obtained in the written test and the quality points by the eligible candidates shall not be disclosed to the members of the Interview Board:

Provided further that in the interview, ten per cent marks shall be divided in the following manner:

(i) 4 per cent marks on the basis of subject/general knowledge;

(ii) 3 per cent marks on the basis of personality; and

(iii) 3 per cent marks on the basis of ability of expression.

(8) The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained

2 3 under sub-clause (4) or sub-clause (5) above, as the case may be, with the marks obtained in the interview. The panel for the post of Principal or Headmaster shall be prepared institution-wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for the posts in the lecturers and trained graduates grade, it shall be prepared subject-wise and group-wise respectively, If two or more candidates obtain equal marks, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal then the name of the candidate who in older in age shall be placed higher. In the panel for the post of Principal or Headmaster, the number of names shall be three times of the number of the vacancies and for the post of teachers in the lecturers and trained graduates grade, it shall be larger (but not larger than twenty-five per cent) than the number of vacancies.

...... ..... ....."

19.As noted supra, Rule 5 of the 1998 Rules deals with

academic qualifications for appointment to the post of teacher

and contemplates that a candidate must possess qualification

as specified in Regulation 1 of Chapter II of the Regulations

made under the Intermediate Act. As per Appendix A of the

2 4 Intermediate Regulations, a candidate should have four years

experience of teaching classes X to XII. However, the `Note'

appended to sub rule (5) of Rule XII excludes the teaching

experience of Assistant Teacher for being construed as

qualifying him for the post of Principal of an Intermediate

College, although the afore-extracted Appendix A provides for

it. The `Note' clearly stipulates that for selection to the post of

the Principal of an Intermediate College, with which we are

concerned, for the purpose of calculating the experience,

services rendered as Headmaster of a High school or as a

Lecturer only has to be taken into consideration. Obviously,

the expression `teaching experience' as contemplated in the

`Note' would apply both to the required experience and the

experience more than that and, therefore, even for required

experience only service rendered as Headmaster/Lecturer is

relevant.

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.

2 5 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 Govind's 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

2 6 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,

2 7 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 the point.

23.We may now advert to other points on which the Division

Bench has endorsed the view taken by the Single Judge and

has negatived the stand of the respondents. As noted above,

out of the fifteen points formulated and decided by the learned

Single Judge, the Division Bench had disagreed with him only

on the issue regarding the requirement of minimum

qualification mentioned in the advertisements. In order to

ward off any preliminary objection regarding the right of the

respondents to be heard on the points decided against them

by the Division Bench, without preferring independent

petitions, Dr. Padia, learned counsel for the respondents

sought our permission to be heard on these points. In order

to assert Respondents' right of being heard on the points

answered against them, learned counsel placed reliance on

the decisions of this Court in Ramanbhai Ashabhai Patel

Vs. Dabhi Ajitkumar Fulsinji and Ors4, J.K. Cotton 4 AIR 1965 SC 669

2 8 Spinning & Weaving Mills Company Ltd. Vs. Collector of

Central Excise5, Jamshed Hormusji Wadia Vs. Board of

Trustees, Port of Mumbai and Anr.6, Bharat Kala Bhandar

Ltd. Vs. Municipal Committee, Dhamangaon7, Nalakath

Sainuddin Vs. Koorikadan Sulaiman8 and Management of

Northern Railway Co-operative Society Ltd.Vs. Industrial

Tribunal, Rajasthan, Jaipur and Anr.9

24.In Ramanbhai's case (supra) this Court had said that while

dealing with an appeal before it, this Supreme Court has the

power to decide all the points arising from the judgment

appealed against and even in the absence of an express

provision like Order XLI, Rule 22 of the Code of Civil

Procedure, it can devise an appropriate procedure to be

adopted at the hearing. It was observed that there could be no

better way of supplying the deficiency than by drawing upon

the provisions of a general law like the Code of Civil Procedure

and adopting such of those provisions as are suitable. It was

held that normally a party in whose favour the judgment 5 (1998) 3 SCC 540 6 (2004) 3 SCC 214 7 AIR 1966 SC 249 8 (2002) 6 SCC 1 9 AIR 1967 SC 1182

2 9 appealed from has been given is not granted special leave to

appeal from it and, therefore, considerations of justice require

that in appropriate cases a party placed in such a position

should be permitted to support the judgment in his favour,

even upon the grounds which were negatived in that

judgment. Subsequently, explaining the issue a little further,

in Jamshed Hormusji Wadia's case (supra) it was observed

that the permission to the respondent to support the decree or

decision under appeal by laying challenge to a finding

recorded or issue decided against him is not given because

Order 41 Rule 22 CPC is applicable to appeals preferred under

Article 136 of the Constitution; it is because of a basic

principle of justice applicable to Courts of superior

jurisdiction. It was, thus, held that a person who has entirely

succeeded before a Court or Tribunal below cannot file an

appeal solely for the sake of clearing himself from the effect of

an adverse finding or an adverse decision on one of the issues

as he would not be a person falling within the meaning of the

words 'person aggrieved'. However, in an appeal or revision,

as a matter of general principle, the party who has an order in

3 0 his favour, is entitled to show that even if the order was liable

to be set aside on the grounds decided in his favour, yet the

order could be sustained by reversing the finding on some

other ground which was decided against him in the court

below.

25.In the light of the aforenoted legal position, we permitted

Dr. Padia to address us on those points which were decided by

the High Court against the respondents.

26.To start with, Dr. Padia contended that the High Court was

not correct in holding that there could not be any reservation

for the post of head of a high school or an intermediate

college. According to the learned counsel, in all public

appointments made by the Union Public Service Commission

or the State Public Service Commission, provision for

reservation is always made in respect of Scheduled Castes and

Backward Class category candidates. It was argued that

under the provisions of 1994 Act, in all appointments to be

made in the State Public Service, reservation in terms of the

said Act had to be provided for and, therefore, by not

3 1 providing for similar reservation in the advertisements in

question, selections made pursuant thereto are per se illegal,

being violative of Article 16(4) of the Constitution. In support,

reliance was placed on a Division Bench decision of the

Allahabad High Court in the case of Onkar Datt Sharma &

Ors. Vs. State of U.P. & Ors.10 wherein it was held that for

the post of a head of the institution in degree/post-graduate

colleges throughout the State of U.P., the principle of

reservation as provided under the 1994 Act would apply.

According to the learned counsel, the reservation Act (the

1994 Act) being a special statute, it would prevail over the

Principal Act. Relying on the decision of this Court in Dr.

Suresh Chandra Verma & Ors. Vs. The Chancellor,

Nagpur University & Ors11., it is urged that if the

advertisements are held to be bad for ignoring the provision

for reservation, these have to be struck down in entirety.

27.Learned counsel for the appellants, on the other hand,

submitted that the post of Principal being a single post, the

provisions of the 1994 Act shall have no application.

10

[(2001) 2 UPLBEC 1149] 11 (1990) 4 SCC 55

3 2 According to the learned counsel, the heads of several

institutions are neither treated nor do they belong to a

common cadre. Their employers are different. The Board only

makes the selection of the head of the institution concerned

and the appointment letters are issued by the respective

committees of the management. It was further submitted that

though the Principal Act was enacted in the year 1982, yet

Section 10 thereof expressly excludes the post of Principal

from the purview of 1994 Act, which applies only to the post of

teachers. It was asserted that the post of the Principal being a

single cadre post, the policy of reservation cannot be applied

as it would amount to 100 per cent reservation, which is not

permissible in law. In support, reliance was placed on the

decisions of this Court in Dr. Chakrdhar Paswan Vs. State

of Bihar12, Bhide Girls Education Society Officer, Zila Parishad Education Vs. 13 , Chetana 14 15 Dilip Motghare Bhide Girls Education SocietyVs.

Vs. , PGI Chandigarh Faculty Association , 16 State ofVs. U.P. Chattopadhyay M.C. .

12 (1988) 2 SCC 214 13 (1993) Suppl. 3 SCC 527 14 (1995) Suppl. 1 SCC 157 15 (1998) 4 SCC 1 16 (2004) 12 SCC 333

3 3

28.Having 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

3 4 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 Chandigarh's

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.17. 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 17 (1988) 2 SCC 214

3 5 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

3 6 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

3 7 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.

3 8

31.It was then submitted by Dr. Padia that there was difference

in the Hindi and English version of the notification given in

Appendix D framed in terms of Rule 12(5) (i) of the 1998

Rules, on the basis whereof quality points were to be

calculated. According to the learned counsel, in the Hindi

version weightage to the percentage of marks in the high

school, intermediate, graduate and post-graduate degree was

in the ratio of 1,2,4 and 8 respectively whereas in the English

version it was only 1,2,3 and 4. The submission was that in

case the Hindi version was followed then maximum marks

that could be awarded, as calculated in terms of Appendix D

would be 174 and in case English version was to be followed

then it would come to only 124. Further, the Board had

scaled the said marks upto 300 by multiplying the quality

point marks of the candidate by 300/174 as the total marks

out of which the merit was to be declared had been taken as

500 and 60 per cent of it came to 300. But this was down by

following the Hindi version. The contention was that in case

the English version was to be followed, the quality point marks

had to be calculated after giving due weightage for graduate

3 9 and post-graduate degree and also it was to be scaled upto

300 by multiplying the quality point marks of 300 by 124 and

not by 174, which would result in some difference. Learned

counsel contended that though the State Government had

issued a corrigendum on 17th January, 2001 and the English

version of the Appendix B, C and D of the Rules was

corrected, the English translation of the corrigendum was

published only on 31st January, 2001. According to the

learned counsel, this amounted to a retrospective amendment,

carried out with a view to validate the result and, therefore,

the same was violative of Article 166 of the Constitution.

Learned counsel urged that the corrigendum also suffered

from a technical defect inasmuch as the same had to be

issued only in the name of the Governor and not by the

Secretary as was done in the instant case.

32.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

4 0 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 the parties.

33.Dr. Padia also contended that the regionwise selection and

declaration of the results for the post of the Principals is not

only violative of the procedure prescribed in Section 10 of the

Principal Act; it will also lead to discriminatory results. It was

pleaded that the procedure adopted is against the spirit of

Articles 14 and 16 of the Constitution and the principles of

law enunciated by this Court in Radhey Shyam Singh &

Others, etc. Vs. Union of India & Ors.18, Nidamarti

Maheshkumar Vs. State of Maharashtra and Ors.19 and

Minor P. Rajendran Vs. State of Madras & Ors.20 18 (1997) 1 SCC 60 19 (1986) 2 SCC 534 20 AIR 1968 SC 1012 4 1

34.In our view, the said contention is also not well-founded.

There is no warrant for accepting as a general proposition that

a regionwise or districtwise selection is per se violative of

equality clause enshrined in Articles 14 and 16 of the

Constitution. It would be discriminatory only when the

person, who alleges discrimination, demonstrates certain

appreciable disadvantages, qua similarly situated persons,

which he would not have faced but for the impugned State

action. Therefore, the onus was on the writ petitioners to

show by cogent material that by resorting to regionwise

selection, they were placed in some disadvantageous position

as compared to their counterparts or that in this process merit

was the casualty.

35.In 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

4 2 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

4 3 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.

36.It was then argued by learned counsel for the respondents

that Section 33C inserted by the Amending Act is wholly

arbitrary, illegal and discriminatory inasmuch as though it

had been enforced with effect from 20th April, 1998, it provided

for regularization of only such ad-hoc Principals who had been

appointed on or before 6th August, 1993. According to the

learned counsel, the said cut off date is arbitrary and

discriminatory as there is no nexus or relationship with the

object sought to be achieved i.e. regularization of ad-hoc

Principals as it would exclude ad-hoc Principals who had been

appointed after 6th August, 1993 and prior to 20th April, 1998,

the date of enforcement of the said provision. It was also

pointed out that by the aforementioned provisions of

regularization incorporated in the Principal Act by the

Amendment Acts of 1993 and 1991, all ad-hoc Principals, who

4 4 were working on the date of enforcement of those Amendment

Acts were regularized whereas in the instant case a gap of five

years had been left between the cut off date and the

enforcement of the Amendment Act, which according to the

learned counsel, is wholly unreasonable and arbitrary. It was

then pleaded that the cut off date of 6th August, 1993 deserves

to be struck down and all Principals who were working on ad-

hoc basis up to the date of enforcement of Section 33C are

entitled to be regularized.

37.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

4 5 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 their original appointments were not made

by following a due process of selection as envisaged in the

4 6 relevant rules. (See also: Secretary, State of Karnataka &

Ors. Vs. Umadevi (3) & Ors.21)

38.In view of the aforegoing discussion, the appeals are

allowed; the judgment of the Division Bench to the extent it

has reversed the decision of the Single Judge is set aside; the

decision of the learned Single Judge is restored and as a

consequence, the writ petitions filed by the respondents stand

dismissed.

Civil Appeal No. 3897 of 2008 (Arising out of SLP(C) No.2691 of 2004) Civil Appeal Nos. 3928-3929 of 2008 (Arising out of SLP(C) Nos.1605-1606 of 2005) Civil Appeal No. 3861 of 2008 (Arising out of SLP(C) No.23691 of 2003) Civil Appeal Nos. 3903-3904 of 2008 (Arising out of SLP(C) Nos.4094-4095 of 2004) Civil Appeal No. 3913 of 2008 (Arising out of SLP(C) No.7125 of 2004) Civil Appeal Nos. 3915-3917 of 2008 (Arising out of SLP(C) Nos.814-816 of 2004) Civil Appeal No. 3934 of 2008 (Arising out of SLP(C) No.24475 of 2005 Civil Appeal No. 3935 of 2008 (Arising out of SLP(C) No.24535 of 2005)

21 (2006) 4 SCC 1

4 7

39.Delay condoned.

40.Leave granted.

41.The challenge in these appeals is to the interim orders

passed by the High Court in regard to the selection of

Principals of various institutions, pursuant to the

advertisements dated 12th August, 1998, 24th December, 1999

and 3rd March, 2002. In view of our judgment and order in

Civil Appeals (Arising out of SLP (C) Nos.19335-36 of 2003)

and other connected appeals, these appeals are also allowed

and the impugned orders passed by the High Court are set

aside.

42.In view of our order in the main appeals, all pending

Applications and Contempt Petitions stand disposed of.

43.No order as to costs.

SLP (C) Nos.1863-64 of 2004 and SLP (C) No.16502 of 2004

44.These petitions are delinked. Be listed in usual course.

4 8 ..............................................CJI.

(K.G. BALAKRISHNAN)

.................................................J. (R.V. RAVEENDRAN)

.................................................J. (D.K. JAIN) NEW DELHI MAY 16, 2008.

4 9