JUDGMENT S. Rafat Alam and V.C. Misra, JJ.
1. This infra court appeal, under the Rules of the Court, is preferred against the judgment of !he Hon'ble Single Judge dated 9.5.2007 allowing Civil Misc. Writ Petition No. 41961 of 2006, Rakesh Bhardwaj v. State of U.P. and Ors. with certain observations and directions.
2. We have heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Arun Kumar Tiwari, learned Counsel appearing for the appellant; Shri P.K. Jain, learned Counsel appearing for the petitioner-respondent No. 6 and the learned Standing Counsel appearing for the State-respondents.
3. The short facts, as appear from the pleadings of the parties briefly stated are that Shri Gangadeen Gauri Shanker College, Kanpur Cantt, Kanpur (hereinafter referred to as 'the institution') is the recognized institution and is also getting grant in aid from the State Government hence governed by the provisions of the U.P. Intermediate Education Act, 1921 (in short 'Act of 1921'), the Regulations framed thereunder and the provisions of the U.P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 (hereinafter referred to as 'the Salaries Act of 1971'). The writ petitioner, who is respondent No. 5 in this appeal, was Assistant Teacher of L.T. Grade in the institution. However, he was given ad hoc promotion as Lecturer in Chemistry against the vacancy caused on account of promotion of the incumbent Shri Hari Narayan Vajpayee as officiating principal. As per the provisions contained under Chapter III Regulation 21 of the Act of 1921, he was to continue in service till he attain the age of 60 years i.e. 8.12.2003 and further he was entitled to get extension of service up to the end of sessions i.e. 30.6.2004. However, before he could retire the State Government took a policy decision to enhance the age of superannuation from 60 to 62 years. Consequently, the provisions contained under Chapter III Regulation 21 of the Act of 1921 was accordingly amended as a result of which the age of superannuation of Shri Hari Narayan Vajpayee was extended up to 8.12.2005 and by virtue of sessions benefit up to 30.6.2006. It further appears that the management of the institution treating the age of superannuation of Shri Hari Narayan Vajpayee as 8.12.2003 and session's benefit up to 30.6.2004 notified the vacancy of the lecturer of the institution to the U.P. Secondary Education Services Selection Board, Allahabad (hereinafter referred to as 'the Selection Board') and the District Inspector of Schools, Kanpur. The vacancy was accordingly advertised on 8.12.2004 in Daily Dainik Jagran. However, the District Inspector of Schools, Kanpur vide its letter dated 21.4.2005 informed the Secretary of the Selection Board with reference to the letter dated 25.2.2003 of the Committee of Management that the post of lecturer in Chemistry of the institution was notified due to inadvertence, as it was not substantively vacant. It further appears that the Committee of Management of the institution sent fresh requisition by notifying the vacancy of lecturer in Chemistry on 25.11.2005 to the Selection Board, which was to be effected on 30.6.2006, on the retirement of Shri Hari Narayan Vajpayee. It further appears that despite above communication made by the District Inspector of Schools the Selection Board proceeded with the selection process on the basis of the advertisement dated 8.12.2004 and prepared the panel on 8.12.2005 wherein the name of the appellant was recommended for the post of lecturer in Chemistry in the institution, as Scheduled Caste category candidate. It further appears that the Selection Board (respondent No. 2) through letter dated 30.6.2006 (annexure 4 to the writ petition) informed the District Inspector of Schools, Kanpur to keep the matter of joining of the appellant in the institution in question in abeyance until further order and communicate the present vacancy of the institution. Copy of this letter was also sent to the management. In compliance to the above intimation of the Selection Board the District inspector of Schools, Kanpur also vide letter dated 30.7.2006 (annexure 5 to the writ petition) directed the Management and the Principal of the institution not to accept the joining of the appellant until further order. It further appears that the District Inspector of Schools informed the Secretary of the Selection Board that the post of lecturer in Chemistry of the institution actually became vacant after the retirement of Shri Hari Narayan Vajpayee on 30.6.2006. However, it further appears that, in the meanwhile, the Management issued the letter of appointment to the appellant on 28.6.2006. Being aggrieved, respondent No. 6 filed the writ petition for quashing the same on the ground inter alia that the vacancy in question was liable to be filled in by way of promotion only and not through direct recruitment and further that in respect of the advertisement of the vacancy in question made on 8.12.2004 no recommendation could have been made by the Selection Board, as the alleged vacancy, in fact, was not available hence, the entire selection process for the selection and appointment of the appellant was void and without jurisdiction. The Hon'ble Single Judge having heard the learned Counsel for the parties dismissed the writ petition by a detailed and reasoned order. Hence, this appeal.
4. Learned Counsel appearing for the appellant vehemently contended that the appellant having been selected and appointed against the vacancy which was duly notified to the Commission and admittedly on the date when she was appointed the vacancy existed in the institution and, therefore, there was no illegality or irregularity in her appointment on the post in question and the Hon'ble Single Judge has erred in law in quashing the same, without considering this aspect of the matter. The argument proceeds that under the U.P. Secondary Education Services Selection Board Act and Rules framed thereunder, requisition can be sent before occurrence of the vacancy, which was sought to be filled up by direct recruitment quota. The Committee of Management accordingly sent requisition for filling up the vacancy, which was duly advertised and the petitioner-respondent had not applied against it for being selected, therefore, none of his legal rights has been infringed and he is not an aggrieved person pursuant to the advertisement No. 2 of 2004 by which the vacancy was declared initially and, therefore, had no locus to file the writ petition. Besides that at the relevant time he was not eligible for consideration, as he did not fall within the zone of eligibility. Thus, petitioner-respondent No. 6 had no valid claim against the said post. Secondly, he failed to demonstrate that the post in question was to be filled in by way of promotion and, therefore, the Hon'ble Single Judge erred in allowing the writ petition. Similar stand has been taken by the learned Standing Counsel, who appeared for the State-respondents as well as the learned Counsel, who appeared for the Committee of Management.
5. On the other hand, learned Counsel appearing for respondent No. 6 vehemently opposed the appeal and contended that the very requisition sent by the management to the Selection Board to recommend the name of the appellant to the post in question was without jurisdiction since at the relevant time the vacancy not being available the entire selection process undertaken by the Board was illegal and the appointment made pursuant thereto is void. It is further contended that if in a particular year of recruitment promotion quota is not full, steps first have to be taken to fill up the vacancy by giving promotion and only when no eligible candidates are available, steps for appointment by direct recruitment is to be taken. It is submitted that in the case in hand, no objective consideration was made as to why the vacancy in question is not first filled up as per quota by promotion and has wrongly been reserved for scheduled caste category ignoring the roaster point. It is, therefore, submitted that in the absence of any factual or legal error in the judgment no interference in the appeal is warranted.
6. Having heard learned Counsel for the parties and looking to the facts of the case and the contentions made on both sides, we are of the view that though the controversy involved in this appeal and the writ petition is very simple, yet to appreciate and adjudicate the same, it would be necessary to ponder over and adjudicate the following aspects of the matter, which necessarily and incidentally arise in this matter, (1) Whether the requisition sent by the management and the District Inspector of Schools to the Commission was valid conferring jurisdiction on the Commission to make selection on the post in question?
(2) Whether selection made by the Commission against the vacancy which occurred much after in point of time 10 the actual occurrence of vacancy could validly confer a right upon the selected candidate to claim appointment and whether such selection and appointment can be said to be only irregular or it would be void ab initio?
7. In order to consider the above questions, it would be appropriate to refer certain provisions of The U.P. Secondary Education (Services Selection Boards) Act, 1982 (in short '1982 Act') and The Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 (in short ' 1998 Rules').
8. Section 16 of 1982 Act prohibits any appointment on the post of a teacher in the institution except of a person recommended by the Board subject to certain provisions of 1982 Act, which reads as under:
16. Appointment to be made only on the recommendation of the Board. -(1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but [subject to the provisions of [Section 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998 be made by the Management only on the recommendation of the board:] Provided that in respect of retrenched employees, the provisions of Section of Section 16 FT of the Intermediate Education Act, 1921, shall mutatis mutandis apply.
Provided further that the appointment of a teacher by transfer from one institution to another, may be made in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
(2) Any appointment made in contravention of the provisions of Sub-section (1) shall be void.
[Provided also that the dependant, of a toucher or other employee of an Institution dying in harness, who possesses the qualifications prescribed under the Intermediate Education Act, 1921 may be appointed as teacher in Trained Graduate's Grade in accordance with the regulations made under Sub-section (4) of Section 9 of the said Act.] The term 'Board , 'Institution' and 'Teacher' are defined under Section 2(a), (e) &(k) respectively, which reads as under:
(a) 'Board' means the Uttar Pradesh Secondary Education Services Selection Board established under Section 3;
(e) 'institution' means an Intermediate College or a Higher Secondary School or a High School recognized under the Intermediate Education Act, 1921, and includes institution maintained by a local authority, but does not include an institution maintained by the State Government.
(k) 'teacher' means a person employed for imparting instruction in an institution and includes a principal or a Headmaster.
The procedure of selection by direct recruitment or promotion is provided under Sections 10 & 12 of 1982 Act, which are quoted as under:
10 - Procedure of selection by direct recruitment.- (1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacancy during the years of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed: Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under Sub-section (I).
9. The power to frame rules for carrying out the purposes of 1982 Act has been conferred upon the State Government under Section 35 of the Act and in furtherance thereof Rules have been framed and notified on 13.7.1998 and published in the Gazette dated 8.8.1998. The procedure for recruitment is provided under Chapter 3 of the Rules containing Rules 10 to 19. For the purposes of the present case Rules 10 and 11 are relevant, which are quoted as under:
10. Source of recruitment - Recruitment to various categories of teachers shall be made from the following sources:
Provided further that if in calculating respective percentages of posts under this rule, there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.
11. Determination and notification of vacancies - (1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided.
(2)(a) The statement of vacancies for each category of post to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix 'A' by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade, and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management be sent by the Inspector to the Board by July 31, with a copy thereof to the Joint Director:
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector with this sub-rule to the Board by July 25, 1998.
Explanation - For the purposes of this sub-rule, the word group-wise in respect of the trained graduate's grade means in accordance with the following groups, namely:
(a) Language This group consists of the subjects of Hindi, Sanskrit, Urdu, Persian and Arabic; (b) Science This group consists of the subjects of Science and Mathematics; (c) Art and Craft (d) Music (e) Agriculture (f) Home Science (g) Physical Education (h) General This group consists of the subjects not covered in any of the foregoing groups. (b) With regard to the post of Principal or Head Master, the Management shall also forward the names of two seniormost teachers along with copies of their service records (including character rolls) and such other records or particulars as the Board may require from time to time. Explanation - For the purpose of this sub-rule 'seniormost teachers' mean the seniormost teachers in the post of highest grade in the institution, irrespective of total service put in the institution.
(3) If, after the vacancies have been notified under Sub-rule (2), any vacancy in the post of a teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send it to the Board.
(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in Sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with Sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.
A perusal of Section 10 read with Rules 10 &11 makes it clear that recruitment of suitable candidates has to be made with reference to the 'year of recruitment' in which the vacancy is likely to arise. The term 'Year of Recruitment' is also defined in Section (2)(1) of 1982 Act, which reads as under:
2(1) - 'Year of recruitment' means a period of twelve months commencing from first day of July of a calendar year.
Thus the 'year of recruitment' is the governing factor conferring authority upon the management to send intimation or requisition of vacancy to the Board through proper channel, i.e., the District Inspector of Schools and the selection has also to be made considering the eligibility of the candidate with reference to the 'Year of recruitment' in which the vacancy occurred.
10. In the instant case, Sri Har Narayan Vajpayee, officiating Principal, who was substantively appointed as Lecturer in Chemistry attained the age of 60 years on 8.12.2003 and in view of Regulation 21 Chapter-Ill of the Regulations framed under the U.P. Intermediate Education Act was entitled to continue till 30.6.2004. The substantive vacancy, therefore, would have arisen on the post of Lecturer on 1.7.2004 and the management could have sent requisition to the Board for filling the post in accordance with 1982 Act read with Rules only and after 1.7.2004. Admittedly, on 4.2.2004 Regulation 21 Chapter III was amended extending age of superannuation from 60 to 62 years resulting in that no vacancy occurred on 1.7.2004 warranting any recruitment under 1982 Act read with Rules. This intimation was given to the Board by the District Inspector of Schools also vide its letter dated 21.4.2005 though the vacancy was already notified to the Board by the Management, pursuant whereto the Board advertised the vacancy on 8.12.2004. Since the statute provides that the process of recruitment would be initiated in the year of recruitment in which the vacancy is likely to arise or is existing, therefore, there was no occasion for initiating the process of recruitment in 2003-2004, inasmuch as, the vacancy did not arise either in that year but as a matter of fact the earlier vacancy which was likely to occur on 1.7.2004 actually occurred on 1.7.2006. Therefore, there was no occasion either for the management or the District Inspector of Schools or the Board to initiate process of recruitment before occurrence of the vacancy. Section 10 in this regard is very clear which provides that for making appointment of a teacher by direct recruitment the management would determine the number of vacancy existing or likely to fall vacant during the 'year of recruitment' and having determined the vacancy the same has to be notified to the Board in such manner through such officer as may be prescribed. For promotion also, Section 12 read with Rule 14 clearly shows that the qualification and the eligibility of a candidate for promotion has to be considered with reference to the first day of the year of recruitment. Thus, unless the vacancy is likely to arise, there was no question to initiate any process of recruitment either by promotion or by direct recruitment under 1982 Act read with 1998 Rules.
11. Admittedly, neither the vacancy occurred in the year 2003-2004 nor 2004-2005 and, therefore, the process of recruitment initiated by the Board by advertising the vacancy on 8.12.2004 and making recruitment on the basis thereof, with reference to the post in question would be wholly without jurisdiction and beyond the scope of 1982 Act.
12. Considering Rules 10 and 14, this Court has repeatedly held that for the purpose of eligibility and qualification it is the year of recruitment in which the vacancy occurred which would be relevant and not the date on which the management sought to fill in the vacancy as the eligibility and qualification etc. would not depend on the sweet will of the management but on a fixed criteria determined by law, i.e., the 'year of recruitment' in which the vacancy occurred. Reference may be made to the judgment of this Court in the cases of Ram Saran Singh v. Committee of Management 2002 (3) UPLBEC 2121, Subhash Prasad v. Regional Selection Committee 2004 ALJ 3711; S.K. Mishra v. Regional Selection Committee 2004 (2) UPLBEC 1520; Brahmdutt Tiwari v. State of U.P. and Ors. 2005 (3) UPLBEC 1713 and Gupteshwar Tiwari v. Joint Director of Education 2005 (4) AWC 3893.
13. The controversy that the eligibility of candidates for promotion is to be seen on the date when the recruitment process was initiated or from the date of occurrence of vacancy, was considered by a Division Bench of this Court in the case of Subhash Prasad v. The Regional Selection Committee 2004 (3) Education & Service Cases, 1385, wherein their Lordships, after examining the Rule, held as under:
We are clearly of the opinion that taking into consideration the scheme underlying the U.P. Secondary Education Services Selection Boards Act, 1982 and the Rules of 1995 framed thereunder, it was obligatory to compute the five years continuous service on the first day of the year of recruitment which had to be taken to be that year of recruitment in which the vacancy was ascertained for being forwarded to the Commission through the Inspector ensuring that it reached the Inspector by 15th of July. The zone of consideration or field of eligibility of eligible and suitable candidates cannot be permitted to be enlarged at the whim of the Committee of Management or get enlarged on account of its failure to either ascertain the vacancy or sent it to the Inspector in the manner prescribed or delay the action contemplated under Rule 14 (3) of the Rules of 1995.
14. Another Division Bench of this Court of which one of us (Hon'ble S. Rafat Alam, J) was a member in Civil Misc. Writ Petition No. 290 of 2005 (Shyam Narain Mishra v. District Inspector of Schools, Allahabad and Ors.), following the above judgment, also took similar view and observed as under:
In case the year of recruitment is allowed to reckon with reference to the date on which the management decide to proceed with the recruitment, that would make the year of recruitment to be uncertain and may confer arbitrary power upon the management to delay its decision in order to defeat the lawful claim of a teacher of the institution. In the absence of any provision suggesting to confer such authority on the management, it is always prudent to interpret a provision, which will prevent arbitrariness and undaunted discretion on the part of the authorities. Since the date of occurrence of vacancy is certain, the first day of July of such year would be the year of recruitment as it would prevent management from enlarging or deferring the year of recruitment in the manner it likes.
15. Considering Rule 11(2) even if we take the view that the vacancy likely to arise due to retirement on the last day of the year of recruitment, such vacancy may be notified to the inspector, we find that in the present case, since the vacancy arose on 30.6.2006 on retirement of Sri Hari Narayan Vajpayee, there was no occasion for the management to notify such vacancy prior to 1st July, 2005 in any case and therefore, the eligibility and qualification for recruitment to the said post would have been considered on the basis of year of recruitment 2005-2006. However, in the present case, the vacancy was advertised by the Board on 8.12.2004 and considering eligibility and qualification treating 'year of recruitment' on the basis of such advertisement, the impugned selection has been made, which is ex facie illegal and contrary to the Act and Rules, as discussed above. Thus, it is difficult to hold that the selection in question for the post of Lecturer in the institution has been made by the Board in accordance with law and that being so, no right can be claimed by the appellant for appointment on the post in question on the basis of such selection which is not in accordance with law.
16. It is well settled that when law requires something to be done in a particular manner, anything done otherwise is illegal. In Nazir Ahamd v. King Emperor the Court said "when a statue requires anything to be done in a particular manner it must be done in that manner or not at all." In Competent Authority v. Bangaloe Jute Factory and Ors. the Hon'ble Apex Court held "it is well settled law that where the statute requires a particular act to be done in a particular manner, the act is to be done in that manner alone. Every word of the statute has to be given its due meaning. The said view has been followed and reiterated by the Hon'ble Apex Court consistently in catena of cases and some of them are: Commissioner of Income-tax, Chandigarh v. Pearl Mech. Engg. and Foundry Works (P) Ltd. ; The State of Maharashtra and Anr. v. The Jalgaon Municipal Council and Ors. (Larson and Tubro Limited v. State of Bihar); Chandra Kishore Jha v. Mahaveer Prasad and Ors. ; Rao Shiv Bahadur Singh and Anr. v. States of Vindh-P. ; State of U.P. v. Singhara Singh and Ors. and 1977 (7) SCC 614 (UPSC v. S. Papeiaph and Ors.).
17. Therefore, in the instant case, from the facts and evidence on record, as noticed above, which has fully been dealt with and addressed by the Hon'ble Single Judge in the judgment under appeal, it is substantiated that no vacancy of Lecturer in Chemistry in the institution in question was available on 8.12.2004 when the advertisement was made by the Service Selection Board, and in fact, it actually fell vacant on 30.6.2004. Thus, the very requisition made by the management and the advertisement of vacancy made by the Service Selection Board along with its recommendation as well as appointment of the appellant cannot be held to be valid, though her selection for other vacancies which were also advertised by the Commission on 8th December, 2004 may be valid and she may be considered against any other vacancy but not against the vacancy in question which did not occur in the year in which it was sought to be advertised by the Board.
18. The contention that her appointment against the aforesaid vacancy is only irregular and would stand validated subsequently, when the vacancy occurred, is misconceived and untenable for the reason that after occurrence of the vacancy on retirement of Sri Hari Narayan Vajpayee on 30.6.2006, the vacancy was required to be notified to the Board in accordance with the provisions of 1982 Act and Rules as discussed above and only such a person who is selected and recommended by the Board after such valid requisition could have been appointed on the said post. Section 16 of 1982 Act declares that any appointment made in contravention of the Act is void and therefore, the appointment, which is not in accordance with the Act, cannot be said to be mere irregular.
19. The manner and the procedure laid down for recruitment under the 1982 Act is mandatory and any appointment made in transgression thereof would be illegal and void. The Hon'ble Apex Court considering Section 16 of the Act of 1982, held that such appointment would not confer any right on the appointee since Section 16 is mandatory. In Prabhat Kumar Sharma and Ors. v. State of U.P. and Ors., Judgment Today 1996 (9) SC 576, the Apex Court held as under:
Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.... Section 16 is mandatory, any appointment in violation thereof is void.
20. Thus, both the aforesaid issues formulated above are answered accordingly and it is held that the requisition sent by the Management for the vacancy in question and the appointment of the appellant made thereon, being contrary to law, is illegal. We, therefore, do not find any legal and factual error in the judgment of the Hon'ble Single Judge and thus, there is no reason to interfere with the same. However, looking to the equitable aspect of the matter, as there is no fault on the part of the appellant in joining the institution in question and she had no option in view of the recommendation of the Board and was required to submit joining within the specified period, as per Rule 13 of the Rules, it is provided that it would be open to the appellant to approach the Selection Board within one month to consider her claim and adjust her against the existing vacancy validly notified and advertised along with the vacancy in question. The Selection Board, we have no doubt, shall consider the matter sympathetically and take decision expeditiously, preferably within four weeks from the date of filing of such representation by the appellant.
21. With the above observation, this special appeal is dismissed. There shall be no order as to costs.