(Delivered by Hon'ble Krishna Murari, J) Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, appearing for the appellants and Dr. Y. K. Srivastava, learned Standing Counsel for the respondents.
There is an institution known as Kaushambi Uchchatar Madhyamik Vidyalaya, Kaushambi. It initially started as a Junior High School in 1972 and was recognized by Basic Shiksha Adhikari in 1977. It was upgraded as a Higher Secondary School and was duly recognized but continued as unaided institution. In 1980 four substantive vacancies were caused in C. T. grade on account of resignation of two teachers and promotion of two teachers in L. T. grade. The vacancies were duly intimated to the District Inspector of Schools who vide his letter dated 30.01.1981 granted permission for filling-up the vacancy. Accordingly, an advertisement was published by the committee of management in daily newspaper ''Northern India Patrika' and ''Amrit Prabhat' dated 08.02.1981. In accordance with the procedure prescribed by Section 16-E of the U. P. Intermediate Education Act, 1921 (for short the ''1921 Act') and the regulations framed thereunder, as it was then applicable, applications were received by the District Inspector of Schools, who got them scrutinized and awarded quality point marks to the applicants. The entire record pertaining to the application of the candidates and the quality point marks awarded to them was forwarded by the District Inspector of Schools to the committee of management on 30.03.1981 for holding an interview of the candidates as prescribed by Section 16-E (5) (ii). The interview was scheduled for 19.04.1981 and all the candidates were informed through registered letter to present themselves on the said date. In the meantime, the State Government issued a radiogram dated 07.04.1981 directing to stop all fresh selections and appointments of Principals, Head Masters and teachers including any recruitment by promotion in all non-Government aided institutions except the minority institutions pending further orders. Subsequently vide notification dated 16.05.1981, the ban was extended to recognized, non aided institutions as well. In pursuance of the direction of the State Government ongoing selection process in the institution in question was suspended and interview scheduled for 19.04.1981 was not held as the experts nominated by the District Inspector of Schools did not turn up.
All fresh selection and appointment in secondary schools was stopped for the reason that the State Government was contemplating to bring about a radical change in the mode, method and power of appointment of teaching staff in secondary schools. Accordingly, the State Government promulgated the U. P. Secondary Education Services Commission and Selection Board Ordinance 1981 (U. P. Ordinance no. 8 of 1981) which was subsequently replaced by U. P. Secondary Education (Services Selection Boards) Act, 1982 (U. P. Act No. 5 of 1982 which came into force on 14th July, 1981). The Act envisaged setting up of a Commission for selection and recommendation of appointment of teachers including the head of the institution. Experiencing difficulties in the implementation of the procedure prescribed by the Act, various Removal of Difficulties Order by the name of U. P. Secondary Education Services Commission (Removal of Difficulties) Order were issued to over-come the same. First Removal of Difficulties Order 1981 was enforced on 31.07.1981. Clause 5 of the said Order provided the procedure for making adhoc appointment by direct recruitment. The 1982 Act and Regulations framed thereunder were made applicable to all the institutions recognized under the Intermediate Education Act whether aided or unaided.
After the enforcement of the First Removal of Difficulties Order, it appears that the committee of management informed the candidates about the quality point marks awarded to them by the District Inspector of Schools and to appear in the institution along with their original testimonials on 25.09.1981. Thereafter, the committee of management selected four persons, including the appellants no. 2 and 3, and forwarded the record pertaining to the selection to the District Inspector of Schools along with the letter dated 16.10.1981 seeking his approval. The candidates selected by the committee of management were issued appointment letter on 24.10.1981. The appointment was purely temporarily on adhoc basis for a maximum period of six months. The appellants no. 2 and 3 along with two other selected candidates joined the post. The institution was brought on grant-in-aid list with effect from 01.01.1983. The committee of management forwarded the salary bill of the teachers and other employees of the institution to the District Inspector of Schools. However, the Finance Officer refused to pass the said bill and asked the committee of management to submit a fresh bill excluding the name of the appellants no. 2 and 3 and one more teacher appointed along with them in as much as fourth appointee by that time had died. The committee of management approached the District Inspector of Schools by means of letter dated 04.08.1983 requesting him to pass the salary bill as the appointments were made in accordance with the rules and regulations. The District Inspector of Schools vide letter dated 20.08.1983 informed the committee of management that the appointments were already disapproved vide letter dated 29.10.1981 and payment of salary from the State exchequer was not possible as the appointment was made by the committee of management on substantive vacancy for which it had no power. Aggrieved by the said order, the committee of management approached this Court by filing Civil Misc. Writ Petition No. 10289 of 1983. The learned single Judge finding that the radiogram issued by the State Government prohibited all the appointments against the available vacancies and thereafter the same were required to be filled in after following the procedure prescribed in 1981 Ordinance and Removal of Difficulties Order since the vacancies were substantive and the appointments were made without following the procedure hence it was not a valid appointment and accordingly dismissed the writ petition.
Sri Ashok Khare, learned Senior Advocate, appearing for the appellants, vehemently contended that since the vacancies arose prior to the issuance of radiogram and advertisement was also issued prior and the procedure for making selection was under-way, therefore, the procedure laid down under the U. P. Secondary Education Services Selection Board Ordinance 1981 and the Removal of Difficulties Order are not applicable and the selection process would continue to be governed by the procedure which was enforced at the time of occurrence of vacancies and its advertisement. He further contended that the change in procedure brought in by enforcement of the Services Selection Board Act and the First Removal of Difficulties Order will not be applicable to the selection process which started prior to its enforcement as the newly enforced Act did not provide for its retrospective operation either expressly or even by implication. Reliance in support of the contention has been placed upon the judgment of the Hon'ble Apex Court in the case of A. A. Calton Vs. Director of Education and another (1993) 3 SCC 33; P. Mahendran and others Vs. State of Karnataka and others (1990) 1 SCC 411 and N. T. Devin Katti Vs. Karnataka Public Service Commission AIR 1990 SC 1233.
In reply, Dr. Y. K. Srivastava, learned Standing Counsel appearing for the respondents, has vehemently contended that the controversy involved is covered by the judgment of the Hon'ble Apex Court in the case of Dr. Ramji Dwivedi Vs. State of U. P. and others 1983 UPLBEC 426 wherein it was held that the radiogram dated 7.4.1981 was legally issued by the State Government and the same became effective the moment it was issued and the effect was that the committee of management did not have any power to make any appointment and after the enforcement of the U. P. Secondary Education Services Commission Ordinance and Act, the procedure prescribed thereunder was to be followed for making appointment. It has next been contended that any appointment contrary to the procedure prescribed in terms of the Ordinance 1981 or the Act 1982 and Removal of Difficulties Order would be patently illegal and void. In support of this contention, he has placed reliance on a Full Bench judgment of this Court in the case of Radha Raizada Vs. Committee of Management - {(1994) 3 UPLBEC 1551 (FB)} and the judgment of the Hon'ble Apex Court in the case of Prabhat Kumar Sharma and others Vs. State of U. P. and others, AIR 1996 SC 2638.
In rejoinder argument, Sri Ashok Khare, learned Senior Advocate, has tried to distinguish the case of Dr. Ramji Dwivedi Vs. State of U. P. and others (supra) by urging that in the said case, the interview was held and the appointment was made during the period the ban was enforced and before the Ordinance was promulgated on 14.07.1981 as such it was held that on the date appointments were made the power of the committee of management to make appointment was suspended. In the case in hand, the facts are different. He has further submitted that the question of retrospective operation of enactment and its effect on the process of selection which has already commenced under the procedure existing prior to enforcement of the new Act has not been considered in the said judgment as such it cannot be read as an authority on the said point. He has further urged that the law laid down by the Hon'ble Apex Court in the case of A. A. Calton Vs. Director of Education and another (supra) has been noted with approval by a three Judges Bench in the case of P. Mahendran and others Vs. State of Karnataka and others (supra) and shall be applicable in the facts and circumstances of the present case and the selection process of the appellants no. 2 and 3 initiated under the procedure as it then existed prior to enforcement of 1981 Ordinance or Removal of Difficulties Order would remain un-effected by the change in the procedure brought in by the new enactment.
We have considered the rival contentions and also perused the record as well as the various case law relied upon by the learned counsel for the parties.
In the case of Dr. Ramji Dwivedi Vs. State of U. P. and others (supra), the Hon'ble Apex Court while upholding the power of the State to issue radiogram dated 7.4.1981 stopping all fresh selections and appointments held that effect of the same is that selection committee had no right to select nor the committee of management had any power to make the appointment. In the said case, the advertisement for the post of Principal was published on 18.05.1980, interview was held on 12.04.1981 and appointment order was issued on 27.4.1981. From the aforesaid facts, it is clear that the interview and appointment was made during the period the ban imposed by the radiogram dated 7.4.1981 was in force.
In the case of A. A. Calton Vs. Director of Education and another (supra) approved in P. Mahendran and others Vs. State of Karnataka and others (supra) it has been held by the Hon'ble Apex Court that the rules regarding qualification or prescribing procedure or power of appointment, if amended during continuance of the process cannot take away or impair the rights of candidates and the selection process has to be completed in accordance with law as it stood at the commencement of the selection unless the newly enacted provision either expressly or by necessary implication directs that it will have retrospective effect.
Neither 1981 Ordinance nor the Act of 1982 nor Removal of Difficulties Order framed thereunder provide expressly that the procedure prescribed for appointment would apply to pending proceedings nor we find any words in it which by necessary intendment can be said to effect the pending proceedings for selection.
Prima facie, there appears to be some conflict in the views taken by two different Benches of coordinate jurisdiction in the case of Dr. Ramji Dwivedi Vs. State of U. P. and others (supra) and A. A. Calton Vs. Director of Education and another (supra). However, a closer scrutiny reveals that both the cases are based on different set of facts in as much as in the case of Dr. Ramji Dwivedi Vs. State of U. P. and others (supra) the entire exercise of holding of interview till the appointment was made between the period the ban was enforced and the new Ordinance of 1981 and first Removal of Difficulties Order could be promulgated and in these circumstances, the Hon'ble Apex Court held that on the date interview was held and appointment was made there was no power with the management whereas in the case of A. A. Calton Vs. Director of Education and another (supra), amending Act taking away the power of the Director to make appointment under Section 16-F (4) of 1921 Act in the case of minority institutions was enforced with effect from 18.8.1975 during the pendency of the proceedings for appointment initiated under the unamended Act. Similarly, in the case of P. Mahendran and others Vs. State of Karnataka and others (supra) rules regarding qualification for appointment on the post of Motor Vehicle Inspector was amended during continuance of the process of selection. In both the aforesaid cases the amendments did not contain any provision enforcing the same with retrospective effect. The Hon'ble Apex Court in the said facts held that since the process of the selection commenced from the stage of calling for applications for a post up to the date on which the authority empowered makes selection is an integrated one and the amendment being enforced does not contain any provision enforcing the same with retrospective effect either expressly or by necessary implication, the same cannot take away or impair existing right. On a closure scrutiny, there does not seem to be any conflict in the ratio laid down by the Hon'ble Apex Court in the case of Dr. Ramji Dwivedi Vs. State of U. P. and others (supra), A. A. Calton Vs. Director of Education and another (supra) affirmed in P. Mahendran and others Vs. State of Karnataka and others (supra) as the two cases are based on different set of facts.
The facts of the case in hand are somewhat similar to the facts of the case of A. A. Calton Vs. Director of Education and another (supra) and P. Mahendran and others Vs. State of Karnataka and others (supra) in as much 1981 Ordinance and Removal of Difficulties Order was promulgated while the proceedings for selection and appointment of appellants no. 2 and 3 were pending. 1981 Ordinance and 1982 Act do not contain any provision enforcing them with retrospective effect nor we find that the provision thereof could be enforced retrospectively by implication and thus, the same have to be held to be prospective in nature. That being the position in view of the law laid down by the Hon'ble Apex Court in the case of A. A. Calton Vs. Director of Education and another (supra) and P. Mahendran and others Vs. State of Karnataka and others (supra), it has to be held that procedure for selection and appointment of the appellants no. 2 and 3 would be governed by the provisions of Section 16-E of U. P. Intermediate Education Act, 1921. Thus, the view taken by the learned single Judge in this regard is not correct and cannot be upheld.
Having come to the aforesaid conclusion, the next question which arises for our consideration is whether the selection and appointment of the appellants no. 2 and 3 was made in accordance with the procedure prescribed by Section 16-E of 1921 Act. The said Section reads as under :
"16-E. Procedure for selection of teachers and heads of institutions. - Subject to the provisions of this Act, the Head of Institution and teachers of an institution shall be appointed by the Committee of Management in the manner hereinafter provided.
(2) Every post of Head of Institution or teacher of an institution shall except to the extent prescribed for being filled by promotion, be filled by direct recruitment after intimation of the vacancy to the Inspector and advertisement of the vacancy containing such particulars as may be prescribed, in at least two newspapers having adequate circulation in the State.
(3) No person shall be appointed as Head of Institution or teacher in an institution unless he possesses the minimum qualifications prescribed by the Regulations:
Provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments.
(4) Every application for appointment as Head of Institution or teacher of an institution in pursuance of an advertisement published under sub-section (2) shall be made to the Inspector and shall be accompanied by such fee which shall be paid in such manner as may be prescribed.
(5) (i) After the receipt of applications under sub-section (4), the Inspector shall cause to be awarded, in respect of each such applications, quality-point marks in accordance with the procedure and principles prescribed, and shall thereafter, forward the applications to the Committee of Management.
(ii) The applications shall be dealt with, the candidates shall be called for interview, and the meeting of the Selection Committee shall be held, in accordance with the Regulations.
(6) The Selection Committee shall prepare a list containing in order of preference the names as far as possible of three candidates for each post found by it to be suitable for appointment and shall communicate its recommendations together with such list to the Committee of Management.
(7) Subject to the provisions of sub-section (8) the Committee of Management shall, on receipt of the recommendations of the Selection Committee under sub-section (6) first offer appointment to the candidate given the first preference by the Selection Committee, and on his failure to join the post, the candidate next to him in the list prepared by the Selection Committee under this section, and on the failure of such candidate also, to the last candidate specified in such list.
(8) The Committee of Management shall, where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagreement to the Regional Deputy Director of Education in the case of appointment to the post of Head of Institution and to the Inspector in the case of appointment to the post of teacher of an institution, and his decision shall be final.
(9) Where no candidate approved by the Selection Committee for appointment is available, a fresh selection shall be held in the manner laid down in the section.
(10) Where the State Government, in case of the appointment of Head of Institution, and the Director in the case of appointment of teacher of an institution, is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be, the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary.
(11) Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, termination or otherwise of an incumbent occurring during an educational sessions, may be made by direct recruitment or promotion without reference to the Selection committee in such manner and subject to such conditions as may be prescribed.
Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made."
For filling up the vacancy, detailed procedure to be followed while making appointment on the post of Head of Institution and teachers by direct recruitment is prescribed by Regulation 10 of Chapter II, which reads as under :
"10. The procedure for filling up the vacancy of the head of institution and teachers by direct recruitment in any recognized institution shall be as follows :
¿¼d½ izcU/k lfefr }kjk lh/kh HkrhZ ls Hkjh tkus okyh fjfDr;ksa dks la[;k vo/kkfjr dj fy;s tkus ds i'pkr~ laLFkk ds izcU/kd }kjk de ls de nks ,sls lekpkj&i=ksa esa ftuesa ,d O;kid izpyu dk LFkkuh; vFkok laLFkk ds fudVre LFkku ls izdkf'kr gksus okyk dksbZ lekpkj&i= gks vkSj nwljk jkT; esa O;kid ifjpkyu okyk lekpkj&i= gks in foKkfir fd;s tk;saxs] izfrcU/k ;g gS fd lekpkj&i=ksa dh lwph ftyk fo|ky; fujh{kd vius lEHkkx ds lEHkkxh; mi f'k{kk funs'kd dh Lohd`fr ds mijkUr fu/kkZfjr djsaxs vkSj muesa ls gh nks lekpkj&i=ksa esa tuin ds leLr izcU/k lfefr;ksa }kjk foKkiu nsuk vfuok;Z gksxkA foKkiu esa fjfDr;ksa ds izdkj ¼vFkkZr~ LFkk;h gS ;k vLFkk;h½ rFkk fjfDr;ksa dh la[;k] in dk fooj.k ¼vFkkZr~ fizafliy ;k iz/kkuk/;kid] izoDrk ;k ,y0Vh0] lh0Vh0 ;k ts0Vh0lh0] ch0Vh0lh0 Js.kh ds v/;kid rFkk ,slk ;k ,sls fo"k; ftlesa ;k ftuesa izoDrk ;k v/;kid dh vko';drk gks½ orZeku vkSj vU; HkRrs visf{kr vuqHko] in ds fy;s fofgr U;wure vgZrk vkSj U;wure vk; ;fn dksbZ gks] ds laca/k esa fooj.k fn;s x, gksa vkSj vfUre fnukad ¼tks lk/kkj.kr;k foKkiu ds fnukad ls nks lIrkg ls de u gksuk pkfg;s½ fofgr fd;k tk;sxk ftl rd vH;fFkZ;ksa }kjk fofgr izi= esa le;d~ :i ls iw.kZr;k Hkjs x;s vkosnu i= fuEufyf[kr ds dk;kZy; esa izkIr fd;s tk;saxsA
(i) the District Inspector of Schools, or
(ii) the Regional Inspectors of Girls Schools, in case of institutions for girls.
The advertisement shall also state that the prescribed application forms can be had from the office of any Inspector on payment of Rs.9 per form by a crossed postal order or bank draft or through Treasury challan by depositing the amount in the State Bank of India under the head indicated by the Inspector. In no case the payment shall be accepted in cash in the Office of the Inspector. A copy of each advertisement shall be simultaneously sent by the Manager to the District Inspector of Schools or the Regional Inspectress of Girls' Schools concerned and in case the post of the head of institution is advertised a copy of the Advertisement shall also be sent to the Regional Deputy Director of Education.
Notes.-(1) All vacancies in the post of teachers and the head of the institution existing at the time of advertisement shall be advertised.
(2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management.
(b) The form of application shall be such as may be approved by the Director,
(c) An application by a person employed in an institution and applying for a post elsewhere or in the same institution shall not be withheld by his employer but shall be forwarded to the District Inspector of Schools or Regional Inspectress of Girls Schools concerned immediately and in case of a post in an institution referred to in Section 16-FF to the Manager thereof.
(d) Applications received shall be serially numbered and entered in a register in the form approved by the Director in the Office of the Inspector and particulars of the candidates noted under appropriate columns along with quality-point-marks obtained by each candidate. The quality-point-marks will be awarded to each candidate according to the criteria laid down in Appendix ''D' preferably by the local retired Gazetted Officers or retired Principals or teachers of Degree College or University or retired heads of Institutions engaged for the purpose by the Inspector and checked by the Inspector or an officer of the Department authorized by him in this behalf. These application forms will be collected by the Committee of Management through the Manager of the Institution from the Office of the Inspector within three days after the expiry of five days from the last date of receipt of applications notified in the advertisement failing which the Inspector shall cause the applications to be sent to the Manager of the institution concerned. The management shall maintain a register likewise. The candidates to be called for interview shall be selected in the order of quality-point marks obtained by them. The number called for interview shall be seven for each post (the number of applicants permitting) provided that this number may be increased to accommodate candidates who get equal number of quality-point-marks in the first seven places. The Inspector shall send intimation of the date, time and place for holding selection as may be fixed by him to the Committee of Management through its Manager at least two weeks before such date. Immediately on receipt of this information, the Manager shall send intimation to the members of the Selection Committee other than the Experts and issue interview cards to all the candidates selected for interview by registered post specifying therein the date, time and place of holding selection, at least ten days before such selection. The Selection Committee will hold its sitting for making the selection accordingly. The Inspector shall intimate to the Experts nominated under Clause (iii) of sub-section (1) or (2) of Section 16-F, as the case may be, the date, time and place fixed for holding of selection along with the name of the institution, sufficiently in advance of such date. If on account of any unavoidable reasons, any expert is unable to attend the selection on the date fixed, the Inspector shall at once arrange for the expert on the waiting list. In the absence of two experts, the meeting of the Selection Committee shall be postponed and another date shall be fixed for the same.
(dd) Where the post advertised under Clause (a) is that of Principal of an institution the two senior most teachers of such institution in the Lecturer's grade and where the post advertised is that of Headmaster for an institution the two senior most teachers of such institution in the L. T. Grade who possess the prescribed minimum qualification for such post and have to their credit a minimum of ten years continuous service in the respective grade, including the period, if any, during which they have worked temporarily as Principal/Headmaster shall also be entitled to be called for interview for that post even if they do not come within the first seven places under Clause (d).
(e) Every candidate called for interview will have to pay the interview fee at rates given below :
(f) A statement (in six copies) showing the names, qualifications and other particulars in respect of every candidate called for the interview shall be got prepared by the Committee of Management in the form given in Appendix ''C' and the same shall be placed before each member of the Selection Committee at the time of the interview. All the applications including those of candidates not called for the interview, the register maintained by the institution referred to in Clause (d), office copies of all letters sent to the members of the Selection Committee and of all interview cards including the post office receipts of sending the same by registered post and acknowledgements, if any, shall also be placed before the Selection Committee by the Management through the manager of the institution.
(g) Selection shall be made by the Selection Committee on the basis of the total quality-point-marks and the marks awarded in the interview. The total of marks for this purpose shall be arrived at by addition of the quality-point-marks as obtained by a candidate under Clause (d) and the average of the marks awarded by the members of the Selection Committee out of 50, as for example a candidate who obtains 90 quality-point-marks under Clause (d) is award the following marks in the interview Member No. 1 35 Member No. 2 30 Member No. 3 40 Member No. 4 45 Member No. 5 25
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Then the total marks will be 90+175/5=125. In addition, each Expert shall also note down in the statement referred to in Clause (f) whether he agrees to the Selection of the candidate or not. In case of disagreement, he will state reasons in brief thereof. After all the candidates for any post are interviewed the Chairman of the Selection Committee shall either himself or by any other member thereof get a note prepared in duplicate on the proceeding of the selection held indicating therein the name of the selected candidate along with two other candidates on the waiting list drawn up in order of merit determined as per example aforesaid and also the names of at least two Experts who have agreed to the selection of such candidates. The note so prepared shall be signed by the Chairman and other members of the Selection Committee giving their full names, designations and addresses and date. One copy of this note along with one copy of the statement referred to in Clause (f) shall be immediately forwarded by the Chairman to the management through the Manager and the other copy shall be forwarded to the Inspector concerned.
Explanation - Any reference to the Committee of Management or President or member thereof in this regulation shall in cases referred to in sub-section (3) of Section 16-F, be construed as a reference to the Authorised Controller who shall, for purpose of awarding marks in the interview, under Clause (d), be deemed to be a single member of the Selection Committee.
(h) Notwithstanding anything contained in Clause (g), if the total marks awarded to two or more candidates are equal then the senior most in age shall be preferred.
A perusal of the aforesaid provisions goes to show that interview is an integral part of the selection process and the selection committee is to consist of President or any member of the committee of management nominated by the committee by resolution, who shall be the Chairman, Head of the Institution and three Experts nominated by the Inspector from persons not belonging to the district in which the institution is situated, out of the panel of names prepared as prescribed by Section 16-F of the Act. Regulation 10 (g) of Chapter II further provides that selection is to be made by the Selection Committee on the basis of total quality-point-marks and the marks awarded in the interview.
In the present case, according to the own pleadings of the appellant no. 1 in the writ petition, the process of selection was suspended as the Experts nominated by the Inspector did not turn up on the date fixed for interview on account of radiogram issued by the State Government stopping process of appointment. It may be relevant to quote paragraph 12 of the writ petition.
"12.That meanwhile on 8.4.81 the State Government through a Radiogram stopped the process of appointment of all the educational institutions in view of the U. P. Education Service Commission Act. Thus the Experts nominated by the respondent no. 1 did not turn up on 19.4.81 at C. A. V. Inter College, Allahabad, and the process of selection remained suspended."
Paragraph 17 of the writ petition which is being quoted hereunder again goes to show that the appointment has been made only on the basis of quality-point-marks without there being any interview.
"17. That on the advice of the D. i. O. S., the petitioner no. 1 informed all the candidates about the result of the quality point marks and it was mentioned that the best 4 candidates will be appointed. In case candidates with better quality point marks do not come, next one shall be appointed. A true copy of the information sent to the candidates is being filed herewith and marked as Annexure no. 4 to this writ petition."
The fact that no interview for the purpose of holding selection was held has also been stated in the counter affidavit and there is no denial of the said fact by the appellants.
The selection and appointment of the appellants no. 2 and 3 being without interview and only on the basis of quality-point-marks is clearly de-hors the provisions of Section 16-E of 1921 Act and Regulation 10 of Chapter II of the Regulations framed thereunder and cannot be held to be a valid appointment.
The appointment being illegal and void abinitio, the relief prayed for could not have been granted and the petition deserved to be dismissed, though it has been dismissed by the learned single Judge for different reasons.
For the aforesaid reasons and conclusion, this special appeal also deserves to be dismissed being bereft of any merits and accordingly stands dismissed.
However, since the appellants no. 2 and 3 have continued to work and received salary under the interim order passed in the writ petition, there is no reason for recovery of the salary paid to them and neither the State nor the Committee of Management would be entitled for any recovery from them.
Date : July 13 , 2012 (Krishna Murari, J) (S. R. Alam, CJ) Dcs.