JUDGMENT S. R Singh, J. 1. By means of this petition under Article 226 of the constitution the petitioner seeks the quashing of Notification/Order dated 3-6-1991 (Annexure-14 to the writ petition1), whereby 2nd respondent was selected by the U. P. Secondary Education Service Commission (here in after referred to as the Commission) for appointment to the post of Principal of Digambar Jain Girls Inter College, Kairana, district Muzaffarnagar, in short the 'College' and for a direction commanding the respondents to treat the petitioner as substantively appointed principal of the College w.e.f. 6-4-1991. 2. The post of principal in the College fell vacant due to retirement of the incumbent, Km. Prem Sakhi Nigam on 30-6-1986. The out going principal seems to have handed over the charge to the 2nd respondent, but the District Inspector of Schools/Authorised Controller of the College issued an order dated 5-7-1986 (Annexure-7 to the writ petition) to the effect that the petitioner being the senior most Lecturer in the College would work as adhoc principal and that the 2nd respondent would hand over the charge to the petitioner forthwith and the charge in fact was given the same day. The petitioner is working as adhoc principal of the College on the basis of the said order dated 5-7-1986. The vacancy was, however, notified to the commission in accordance with rule 4 of the U. P. Secondary Education Services Commission Rules, 1983 (in short the Rules) and it was advertised on 6-1-1987. The names of the petitioner and the 2nd respondent were forwarded to the commission under Rule 4 (1) (ii) of the Rules along with their service records (including character rolls) and other relevant particulars and they too were called for interview in view of the proviso to rule 6 of the Rules. The Commission by its Notification dated 21-1-1988 had placed the 2nd respondent at serial no. 1 in the panel of the selected candidates, while the petitioner was placed at serial no. 2 in the said panel. The said notification was, however, quashed by the High Court in writ petition no. The Commission by its Notification dated 21-1-1988 had placed the 2nd respondent at serial no. 1 in the panel of the selected candidates, while the petitioner was placed at serial no. 2 in the said panel. The said notification was, however, quashed by the High Court in writ petition no. 2279 of 1988 filed by the petitioner, Smt. Santosh Jain vide judgment and order dated 19-3-1991 and the Commission was directed to do the evaluation of the service records of the petitioner and the 2nd respondent afresh in the light of the observations made in the body of the judgment and it was in pursuance of the said judgment that re-evaluation of service records was done by the commission afresh and the impugned order selecting the 2nd respondent for the post in question was passed by the Commission again. It is not disputed before me that the petitioner had put in 18 years service (from 1969-70 to 1986-87) and the 2nd respondent had 16 years teaching experience to her credit as teacher at the relevant time. The Commission have evaluated the service record of the petitioner taking all the entries of the years as adverse except the entries for the years 1985-86 and 1986-87. According to the non-statutory guidelines prepared by the Commission the service records pertaining to the entire period of their services were to be looked into for evaluating their merits on the basis of the service records in as much as the commission look into the last 20 years service records of teacher candidates, if they have put in that much of service at the relevant time. 3. It is also not disputed that according to the same non-statutory and un-notified guidelines a total of 175 interview-marks are placed at the disposal of the Selection Board constituted by the Commission for the purpose of selecting a suitable candidate for appointment as a teacher including principal or Head Master. The Selection Board awards marks at the interview .out of these 75 marks. The Selection Board awards marks at the interview .out of these 75 marks. But so far as the two senior most teachers called for interview for the post of principal or Head Master of the concerned College under the proviso to rule 6 of the Rules are concerned, the last 20 years of their service records are also looked into and a total of 30 marks are placed at the disposal of the Selection Board for evaluating merits on the basis of their service records (including character rolls) also. Out of 30 marks 10 marks (i.e. 1 mark each year) are allotted for the first 10 years of service and 20 marks (2 marks per year) are allocated for the subsequent 10 years of service records and for the purposes of evaluating service records, the Commission, according to its guidelines, has classified the annual entries in the character roll into three categories ; (a) good or satisfactory, (b) bad or adverse and (c) non-est entry'. A good or satisfactory entry carries full marks to its credit, while a bad or adverse entry carries no marks and 'no entry' carries 50% marks of the marks allocated to its credit. Further an adverse entry, if not communicated, it treated by the Commission as, non-est entry' and is evaluated accordingly. 4. The petitioner was given 27 marks out of 75 marks while the 2nd respondent secured 34 marks at the interview. These marks were subject to modulation, according to which the interview marks of teacher candidates are determined mathematically out of 45 marks on the basis of the marks obtained by them out of the total of 75 marks. This is done because, their service records are also taken into account for which a maximum of 30 marks are earmarked and therefore, it is found out as to how many marks they would have secured out of (75 minus 30 equal to 45). Thereafter, according to the guidelines the modulated interview, marks are added to the marks obtained by each of the teacher candidates on her/his service record and the aggregate represents the marks obtained for the purposes of determining her/his merits vis-a-vis other candidates called for interview. In the instant case the interview marks obtained by direct candidates were less than the aggregated marks so given to the petitioner and 2nd respondent as aforesaid. In the instant case the interview marks obtained by direct candidates were less than the aggregated marks so given to the petitioner and 2nd respondent as aforesaid. The Commission had thereafter to find out the interse merit of the petitioner and 2nd respondent in order to determine the place one had to be assigned in the panel to be drawn according to rule 7 of the Rules. 5. It may be stated that at the first selection held on 16-7-1987 the petitioner was allotted 15 marks on the count of her service record and this added to 16 modulated-interview-marks to her credit came to be 31 as against 40 marks (20 on service record and 20 modulated-interview-marks) of the 2nd respondent. But re-evaluation of the service records of the petitioner and the 2nd respondent pursuant to the judgment of this court given in the earlier writ petition filed by the petitioner brought to their credit 25 and 21 marks respectively on the count of their service records and thus the sum total of modulated-interview-marks and the marks allotted to them on their service records came to be 41 each and according to non-statutory guidelines formulated by the Commission, the merit of the petitioner, who, as alleged by the respondents, had at least one adverse entry pertaining to 1978-79 was judged on the basis of 27 modulated interview-marks obtained by her as against the 2nd respondent, who is said to have no adverse entry to her credit and therefore, her merits according to the same guidelines was judged on the total of 41 marks allotted to her on the basis of interview and service records combined, and therefore, she was placed at serial no. 1 in the panel. 6. Prior to enforcement of the Act the appointment of teachers and Head of recognised institutions was governed by the provisions contained in the U. P Intermediate Education Act, 1921 and Regulations made thereunder. The procedure for filling up the vacancies of Head and teachers by direct recruitment in any recongnised institution may be found in detail under section 16-E of the said Act and Regulation 10 of Chapter-II of the Regulations made thereunder. In the Scheme of the U. P. Intermediate Education Act, the selection of teachers and Heads used to be made on the basis of the merit determined on aggregate of the quality point-marks and the interview marks. In the Scheme of the U. P. Intermediate Education Act, the selection of teachers and Heads used to be made on the basis of the merit determined on aggregate of the quality point-marks and the interview marks. Appendix-D provided the manner in which the quality-point-marks were to be worked out. The appointment of teachers in recognised institutions is now governed by U. P. Secondary Education Service Commission and Selection Boards Act, 1982 which provides for establishment of a Commission known as the U. P. Secondary Education Service Commission in accordance with sections 3 and 4 for selection scheduled teachers, namely, principal, Lecturer and teacher in L. T. Grade. The statement of objects and Reasons appended to the relevant Bill reads as under : "The appointment of teachers in Secondary institutions recognised by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and regulations made there under It was felt that the selection of teachers under the provisions of the said Act and the regulations was sometimes not free and fair. Besides, the field of selection was also very much restricted. This adversely affected the availability of suitable teachers and the standard of education. It was, therefore, considered necessary to constitute Secondary Education Service Commission at the State level to select principals, Lecturers, Head Masters and L. T. Grade teachers, and Secondary Education Selection Boards at the regional level to select and make available suitable candidates for comparatively lower posts in C. T./J. T. C./B. T. C. grades for such institutions." 7. It may be pertinent to mention here that while the Commission was established under the Act for the purpose of selecting scheduled-teachers. Secondary Education Service Selection Boards for selection of C.T./J T.C./ B.T.C. grade teachers could not see the light of the day and the necessity to establish the Regional Selection Boards under section 12 of the Act now stands done away with due to abolition of the C.T./J.T.C./B.T.C grades by the State Government recently. 8. Secondary Education Service Selection Boards for selection of C.T./J T.C./ B.T.C. grade teachers could not see the light of the day and the necessity to establish the Regional Selection Boards under section 12 of the Act now stands done away with due to abolition of the C.T./J.T.C./B.T.C grades by the State Government recently. 8. According to Section 9 of the Act the Commission have, inter alia, the powers and duties, (a) to prepare guidelines for matters related to method of recruitment and promotion of such categories of teachers as are specified in the schedule ; and (b) to conduct examinations which are considered necessary, hold interviews and make selection of candidates for being appointed as such teachers, and as provided in Section 10 (2) of the Act the procedure for selection of candidates for appointment to the posts of such teachers shall be such as may be prescribed ; provided that the Commission shall, with a view to inviting talented persons may give wide publicity in the State to the vacancies notified under sub-section (I). The U. P. Secondary Education Service Commission Rules, 1983 have been made by the State Government in exercise of its power under Section 35 of the Act, where as the Commission has made Regulations known, as the U. P. Secondary Education Service Commission (Fitst) Regulations, 1983 and the U. P. Secondary Education Service Commission (Procedure and Conduct of Business) Regulations, 1983 (in short the Conduct of Business Regulations) with the previous approval of the State Government in exercise of its power under Section 34 of the Act for holding selections and interviews etc ; and laying down the procedure to be followed b y the Commission for discharging its related duties and functions under the Act. 9. According to rule 3 of the Rules the minimum academic qualification for appointment as 'teacher' shall be such as given in regulation 1 of Chapter II of the Regulations framed under the Intermediate Education Act, 1921. The word 'teacher' includes principal or Head Master of an Intermediate College or a High School, as the case may be, as is clear from Section 2 (k) of the Act and rule 2 (h) of Rules. The word 'teacher' includes principal or Head Master of an Intermediate College or a High School, as the case may be, as is clear from Section 2 (k) of the Act and rule 2 (h) of Rules. The Conduct of Business Regulations provides for constitution of the Board or Boards for interview viva-voce test of candidates for various posts for which selection is required to be made under the Act and according to regulation 8 the proforma for submission of application and the procedure and methodolgy for registration of applications received, preliminary scrutiny, if any, considered necessary for short listing the applicant candidates, organising competitive examinations, if any, to be held, organising interviews and evaluation of candidates consequent to the interview and preparation of final list and other allied matters will be as decided by the Commission from time to time. 10. A comparison of the provisions contained in the U. P. Secondary Education Services Commission and Selection Boards Act, 1982 and Rules and Regulations made thereunder with those of the U. P. Intermediate Education Act, 1921 and the Regulations made thereunder would indicate that while under Intermediate Education Act, 1921, the basis of selection was merit as determined on the basis of sum total of quality point marks and the interview marks obtained by the candidates, as is evident from regulation 10 under Chapter II of the Regulations made under the U. P. Intermediate Education Act, 1921, no such basis or criterion is provided in the U. P. Secondary Education Service Commission and Selection Boards Act, 1982 and the Rules and Regulations made thereunder. The proviso to Section 10 (2) and the object of the Act as also the provisions contained in rules 6 and 7 of the U. P. Secondary Education Services Commission Rules, 1983 suggest that the selection of candidates for direct recruitment as teacher' under the Act is to be made on the basis of merit and suitablity and the selection for appointment by promotion, as provided under rule 9 (2) of the Rules has to be made on the basis of seniority subject to rejection of unfit. But neither the Act nor the Rules and Regulations made under the Act lay down any specific norms or guidelines for evaluating the merit and suitability of candidates for direct appointment. However, the Commission have formulated the guidelines for selection as would be discussed laler in this judgment. But neither the Act nor the Rules and Regulations made under the Act lay down any specific norms or guidelines for evaluating the merit and suitability of candidates for direct appointment. However, the Commission have formulated the guidelines for selection as would be discussed laler in this judgment. The petitioner's learned counsel contended before me that the adverse entries against the petitioner stood wiped off after grant of selection grade and ad hoc promotion to the post of principal and also on account of he fact that she was allowed to cross the Efficiency Bar in normal course of time. There is no merit in this submission of the petitioner's counsel. A perusal of the relevant Government Orders pertaining to the grant of selection grade to teachers indicate that it is linkend with a prescribed length of service and not with merits. The Government Order No. 4017/15-8-3062/82, dated 12th November, 1982 which provides for grant of selection grade to teachers, has not been brought on the record, but subsequent Government Orders are printed on page 99-100 in B. D. Tripathi's "U. P. Education Manual" 12th Edition (part containing Government Orders). It is clear that a teacher in a particular grade becomes entitled to selection grade with effect from 1st July following completion of 16 years of service in that grade. Similarly ad hoc promotion to the post of principal under the provisions of section 18 of the U. P. Secondary Education Services Commission and Selection Boards Act, 1982 or under the provisions of the U. P. Secondary Education Services Commission (Removal of Difficulties) Order. 1981, is given on the basis of seniority and not on the basis of the merit. The crossing of Efficiency Bar is also of no help to the petitioner. Selection for appointment as teacher including principal under the provisions of the Act is based on merit which is determined in accordance with the guidelines framed by the Commission. The fact that the petitioner was allowed to cross the Efficiency Bar in normal course, could have been taken into account by the Commission had it been a case of promotion under rule 9 of the Rules as distinguished from a case of selection based on merit to be determined in the manner indicated here in before. It may not be a ground to treat the adverse entry as a good entry to be evaluated accordingly. It may not be a ground to treat the adverse entry as a good entry to be evaluated accordingly. The question pertains to evaluation of merit in accordance with the guidelines framed by the Commission. The fact that the petitioner was allowed to cross the Efficiency Bar, therefore, too is of no avail to .he petitioner. 11. The learned counsel for the petitioner then contended before me that the petitioner had put in 18 years of service (1969-70 to 1986-87) and while evaluating the service record of the petitioner at the first selection held on 16-7-1987, the Commission had treated the entry of 1978-79 as adverse but uncommunicated, while at the 2nd evaluation pursuant to the judgue it of the High Court the entry was evaluated as if it was a communicated adverse entry. This according to the learned counsel for the petitioner, was contrary to the admission made on behalf of the Commission in paragraph 7 of the counter affidavit filed in the earlier writ petition the relevant portion of which runs as below : "So far the entry of 1978-79 is concerned, it is pertinent to point out that on scrutiny of the said character roll of the petitioner it was found that the entry in question could not be considered as a full fledged annual entry because it has been written on 13-1-1979 i.e. much before the end of the year 1978-79. Normally annual entries are given after the assessment of work and conduct pertaining to a whole financial year. As such this was considered as a warning but not annual entry. According to the Character Roll; the final annual entry for 1978-79 was made on 22nd May, 1979 which seems proper time for making entries in the character rolls and from perusal of page 15 of the character roll it is evident that the final adverse entry for the year 1978-79 was not communicated to the petitioner. Under the circumstances the entry in question was also treated as "adverse but not communicated" and as such benefit of 1/2 mark was given as applicable for the entries treated to be non-est." 12. Learned counsel for the respondents on the other hand contended that the petitioner had herself admitted the communication of the said entry and therefore, the Commission could not be said to be unjustified in treating the said entry as communicated one and evaluating it accordingly. Learned counsel for the respondents on the other hand contended that the petitioner had herself admitted the communication of the said entry and therefore, the Commission could not be said to be unjustified in treating the said entry as communicated one and evaluating it accordingly. This contention of the learned counsel for the respondents does not appeal to me. It is too well settled that an admission is the best evidence against a person unless it is explained or proved to be wrong and if one wants an authority on the point, one may look into the decision of the Supreme Court in Narayan Bhagwant Rao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100 . The earlier judgment of the High Court, pursuant to which evaluation of service records was done makes it abundantly clear that although the initial stand of the petitioner with regard to entry of 1978-79 was that it was a communicated adverse entry and that her representation against it was rejected, but subsequently the said stand was given up and reliance was placed upon the stand taken by the Commission in as much as "the Commission itself having seen the record proceeded on the footing that none of these entries was communicated to the petitioner. The High Court gave its judgment dated 19-3-1991 that the entry of 1978-79, though adverse, was not communicated and for this purpose the High Court had believed the version of the Commission. So far as the petitioner is concerned, she has explained the circumstances under which she had initially taken the stand that the entry was communicated in that the entry which the petitioner believed to be an adverse entry of 1978-73, was in fact not a final annual entry for it was written on 13-1-1979, where as the year 1978-79 ended in June, 1979 and further on perusal of the record which was made available to the parties by the order of the High Court in earlier writ petition, the petitioner found that the annual entry was made on 22-5-1979. which was not communicated to the petitioner. The High Court in its judgment dated 19-3-1991 has also noticed this fact and observed." "Having discovered the position that 'final annual entry of 1978-79 was not communicated to the petitioner, as stated in paragraph 7 of the supplementary counter affidavit. which was not communicated to the petitioner. The High Court in its judgment dated 19-3-1991 has also noticed this fact and observed." "Having discovered the position that 'final annual entry of 1978-79 was not communicated to the petitioner, as stated in paragraph 7 of the supplementary counter affidavit. Counsel for the petitioner urged that he would go by the version of the Commission, which recorded correct state of affairs regarding the communication of the entry and that he gave up the plea taken up in the petition that the representation was made against that entry which was rejected." Having re evaluated the service record pursuant to the same very judgment of the High Court, it was not open to the Commission to take a contrary stand and say that the adverse entry of 1978-79 was communicated to the petitioner. On the admitted position, therefore, I am of the view that the Commission ought to have evaluated the entry of 1978-79 as if it was a non-est entry in that year as per its guidelines. Though according to earlier judgment of the High Court dated 19-3-1991 as also according to submission made by the learned counsel for the petitioner, an uncommunicated entry should be treated as good entry and evaluated accordingly, but I am unable to agree with this view. While it is true that an uncommunicated adverse entry cannot be the basis of passing an adverse order such as an order of compulsory retirement or an order denying the benefits of super time scale, it is difficult to hold that an uncommunicated adverse entry be treated as good entry and evaluated accordingly, when according to the guidelines such an entry is treated as non-est. The petitioner however, ought to have been allotted 1/2 marks for this entry. Thus her total would go up 'by 1/2 and come to be 41 1/2 as against the total of 41 marks earned by the 2nd respondent and he would be entitled to be placed at serial no. 1 in the panel. 13. Learned Counsel for the petitioner also contended before me that the guidelines framed by the Commission are arbitrary and contrary to section 34 of the Act in that these guidelines have been formulated otherwise than in accordance with the provisions contained in section 34 of the Act. 1 in the panel. 13. Learned Counsel for the petitioner also contended before me that the guidelines framed by the Commission are arbitrary and contrary to section 34 of the Act in that these guidelines have been formulated otherwise than in accordance with the provisions contained in section 34 of the Act. The argument advanced by the learned counsel is attractive besides being loaded with, substance in as much as the expression 'for holding interviews and laying down the procedure" occurring in section 34 of the Act, in my opinion, includes preparation of guidelines on matter relating to the method of recruitment and promotion within the meaning of section 9 of the Act and therefore, it was incumbent upon the Commission to have incorporated its guidelines in the Conduct of Business Regulations itself. It is true that section 9 of the Act confers power upon the Commission to frame guidelines on matters relating to method of recruitment and promotion but a combined reading of the two Sections suggests that the power has to be exercised in the manner indicated in section 34 of the Act, which empowers the Commission to frame Regulation on the matters, stated there in with the prior approval of the State Government. The Legislature in its wisdom delegated the said power to the Commission with a rider that the Regulations laying down procedure to be followed by the Commission for discharging its duties and performing its function under the Act may be framed by the Commission with previous approval of the State Government. Regulation 8 (1) (e) of the Conduct of Business Regulations empowers the Commission to determine the procedure and methodology for evaluation of the candidates consequent to the interview on the basis of the guidelines formulated without prior approval of the State Government vizualised by section 34 of the Act and therefore, regulation 8 (I) (e) of the Conduct of Business Regulations primafacie to be suffering from vice of excessive delegation. But in absence of proper averment in the writ petition challenging the vires of regulation 8 (1) (e), I refrain from going into the question regarding the validity of the said provision which has been upheld by a Division Bench of this Court in Indraj Singh Yadav v. Uttar Pradesh Madhyamic Shiksha Sewa Ayog, Allahabad, 1948, UP LB EC 510. 14. 14. Now the next question is whether the guidelines are reasonable and fair and do not violate the principles of equality of opportunity in the matter of employmeat enshrined in Articles 14 and 16 of the Constitution. In order to appreciate the question, I may first quote the guidelines as below ;- "ASSESSMENT DURING THE COURSE OF INTERVIEW All the candidates will be assessed in nine categories. The candidates and their prescribed range shall be as under :- Category Range of Marks A 56-60 A 51-55 A - 46-50 B - 41-45 B 36-40 B - 31-35 C 26-30 C (star mark) 21-25 C - 16-20 Only for senior most teachers :- Assessment of the candidates applied as senior most teacher at source shall be made after interview firstly by awarding marks as is done in the case of candidates who have applied directly. After the departure of the experts, the two members included in the Board will jointly make another exercise with regard to the candidates from this source. And the exercise will be in such a manner that the marks secured in interview shall be proportionately reduced to (3/5th) 45 and on the basis of the service record, the balance of 30 marks shall be awarded as under :- (a) one mark each for one year service in the same institution for the period of first ten years-total 10 marks ; (b) For the service for the period between eleven years to twenty years or beyond in the same institution (the assessment for the last ten years) shall be made-Maximum of two marks per year-Total 30 marks. 2. For the entries or in their absence the marks will be awarded as under :- (i) for ordinarily satisfactory and good entries-maximum marks prescribed for the year ; (ii) for the years where entries have not been made or in the absence of record upto the date of finalisation of the result-half of the prescribed maximum marks. (iii) Entries which bears adverse remarks-zero for the relative year. 3. (iii) Entries which bears adverse remarks-zero for the relative year. 3. If the entries for the period for which record is available are good then the marks which have been obtained as a result or the exercise done afterwards or the marks obtained by them as in the case of the marks obtained in the interview by the candidates from open market, whichever is higher in the interest of the candidate, shall be taken into account and the merit of the concerned teacher shall be drawn accordingly. In case of the record being not found to be satisfactory then the marks which are lesser under both the conditions shall be taken into account and the merit of the concerned teacher shall be drawn accordingly. 4. The candidate who has been placed in category C, as a result of the interview shall be assessed as one having qualifications below the basis qualifications prescribed for interview and shall not be able to be selected in any circumstances. POINTS TO BE CONSIDERED AT THE TIME OF INTERVIEW. 1. Personality. 2. Knowledge. 3. Knowledge of the modern educational idelologies and its problems and remedial view point. 4. General knowledge. 5. Administrative Capability with regard to school/institutional management. 6. Display of self confidence and effective voice. 7. Co-circular and specific achievement at regional or State level. Sd/- Seal U. P. Secondary Education Service Commission, Allahabad." So far as interview is concerned, the guidelines, though not very precise and definite, do lay down the norms to find out the merits of the candidates called for interview but it would have been better if the different basis mentioned in the guidelines under the heading. "Point to be considered at the time of interview" were allocated marks out of the total of 75 marks. However, with all its drawbacks the interview test is judicially approved made of selection. 15. "Point to be considered at the time of interview" were allocated marks out of the total of 75 marks. However, with all its drawbacks the interview test is judicially approved made of selection. 15. In Ajai Masia v. Khalid Mujib, AIR 1981, SC 487 at p. 510, the Supreme Court had an occasion to examine that and it has dealt with the question as below : "The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristic and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matters of admission of College or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be restored to only as an additional or supplementary test and moreover, greate care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification." 16. In Liladhar v. State of Rajasthan, AIR 1961 SC 1777, Ajai Hasia's case (supra) was considered and it was observed as below : "On the other hand in the case of service in which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basis and essential academic and professional requirements being satisfied......" "There are of course many services to which recruitment is made from younger candidate whose personalities are on the threshold of development and who show signs of great promises, and the discarding may in an interview test catch a glimpse of the future personality in the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much to? great weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. great weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and host of other factors." In Mahmood Alam Tariq v. State of Rajasthan, AIR 1981 SC 1451, the Supreme Court has quoted the aforesaid decisions and various other authorities on the subject and observed that "the problems of assessment of personality are indeed complicated. 17. For appointment as a teacher intellectual academic merit, to my mind, is primary consideration but other factors connected with the Ethics and morality too may be relevant for judging the suitability of a candidate for appointment as a teacher and in the case of selection for the post of Principal or Head Master besides academic/intellectual merit and human quality of head and heart, administrative capabilities and experience combined also become relevant for, as held by the Supreme Court in Lilly Kurian v. Lewina, AIR 1979 SC 52 , at p. 59. "The post of principal is of pivotal importance in the life of a College, around whom wheels tone and temper of the institution, on whom depends the continuity of its traditions, maintenance of discipline and efficiency of its teaching." But unfortunately the guidelines formulated by the Commission for selection of the candidates for the post of Head of the Institution and other teachers are one and the same and do not contain any distinctive and definite criterion for the members of the Selection Board to be reasonably guided so as to find out the most suitable candidate for appointment to the post of principal who may be able to discharge his/her duties and fulfill aspirations of the students in particular and the society in general. It would be better if some distinctive norms and the guidelines are formulated by the commission for its guidance in the matter of selection of a candidate for appointment to the post of Principal or Head Master and further that such norms and guidelines are incorporated in the Conduct of Business Regulations, for that, would inspire confidence of all concerned in the free and fair functioning of the Commission and would also eliminate the chances of arbitrariness, nepotism and favouritism in the selection of candidates and thereby it would subserve a larger public interest. 18. The present guidelines being followed by the commission for the purpose of selection of Heads of the institution appear to be discriminatory in as much as there does not seem to be any reasonable basis for evaluating the merit of teacher candidates and direct candidates in different manners particularly when a minimum of four years teaching experience is an essential qualification. The classification of candidates as teacher and direct candidates, to my mind, does not bear any nexus with the objects sought to be achieved by the Act. It goes without saying that the object of selection is to find out the most suitable and meritorious amongst the candidates for appointment as head of the institution. The merit and suitability of teacher candidates and direct candidates should be tested on the touch stone of factors which may be relevant for selection in the light of the observations made herein before and A.W.C.] [Suppl.] Smt. Santosh Jain v. U.P. S.E. S.C. (S.R.Singh) 131 for this purpose there appears to be no reasonable basis to classify the candidates into two categories viz. teacher candidates and non-teacher candidates and judge their merits differently. Further the procedure of judging the merit of a teacher candidate having an adverse entry in any of the relevant years on the basis of the lowest marks out of the marks given to such teacher candidate in the direct interview and the aggregate of the modulated-interview marks and marks on service records also appears to be based on no sound principle of justice in as much as the relevant adverse entry once taken into consideration while evaluating the service records cannot be allowed to be considered again for the purpose of reducing the merit of such teacher candidate. In the instant case the petitioner and the 2nd respondent earned equal aggregate marks according to the commission is stated herein before, but the merit of the petitioner was judged on her unmodulated-interview marks which are lesser than her aggregate marks only for the reason that she had an adverse entry to her credit, whereas the merit of the 2nd respondent was judged on the aggregate of modulated-interview-marks earned by her on her service records. The guidelines which enable the Commission to so evaluate the merits of the teacher candidates, to my mind, are arbitrary and discriminatory. 19. The paragraph 3 of the guidelines (Annexure-SA-4) in so far as it provides that, "in case of the record not found to be satisfactory then the marks which are lesser under both the conditions {shall be taken into account and the merit of the concerned teacher shall be drawn accordingly" is unjust and discriminatory due to the reason of the fact that it violates the principle contained in the doctrine of 'double Jeopardy' enshrined in Article 20 (2) of the Constitution which is grounded on the common law maxim "Name Debet Bisverari Prouna Et Eaaam Causa ; a man shall not tevexed three for one and the same cause (a man shall not be brought into danger for one and the same offence more than once)- in that the unsatisfactory record, if any, is already taken into account while evaluating the merit on the basis of service record and zero mark is allotted for the entries which bear adverse remarks for the relative year according to para 2 (hi) of the guidelines. It is true that the doctrine applies to criminal proceedings but the principle can be invoked in matters like the one in hand, for once the evaluation of merits of the teacher candidates is done and their aggregated marks are worked out as indicated in the guidelines, it would be unjust to allow the commission to take the lesser out of the unmodulated-interview-marks and the aggregate marks of the teacher candidates for determining their merits in case of the record being not found to be satisfactory. So long as the guidelines stand in their present form, a teacher candidate having an adverse entry in any of the related years could never be selected even if the aggregate of the marks obtained by him/her is more than that of the other teacher candidate. This is violative of the principle contained in the doctrine of 'double jeopardy'. Service record for the last four years of service should be looked for finding the suitability irrespective of the fact whether the candidate is a teacher candidate or a direct one. 20. As regards the adverse entry of 1981-82, annexure-1 to the petition indicates that it was expunged on the representation of the petitioner and the Commission have wrongly evaluated this entry as adverse though uncommunicated But this would not make any difference, for at the best it can be evaluated as 'non-est entry' and not as a good entry and the Commission have evaluated it accordingly. But in view of the above discussion, I am of the considered view that so long as the practice of making selection of teachers on the basis of interview alone is vogue, the merits of candidates including teacher candidates should be judged on the basis of marks obtained by them at the interview and character roll entries of all of them for at least four years should be considered only for the purpose of judging their suitability/desirability for appointment as head of institution. Learned counsel for the petitioner also contended before me that in view of the provisions contained in Section 33-A as ameded by the U.P. Ordinance No. 28 of 1991 which since has become an Act, namely the U P. Act No. 26 of 1991, the petitioner's services stand regularised and shall be deemed to have been appointed principal in substantive capacity w. e. f. 6-4-1991. Learned counsel for the respondents contended before me that the benfit of Amending Act No. 26 of 1991 cannot be given to the petitioner in as much as the said Act No. 26 of 1991 is not applicable to the post of principal. Learned counsel for the respondents contended before me that the benfit of Amending Act No. 26 of 1991 cannot be given to the petitioner in as much as the said Act No. 26 of 1991 is not applicable to the post of principal. In order to appreciate the above controversy, it is necessary to quote relevant provisions containd in sub-sections (1-A), (1-B) and (1-C) inserted in Section 33-A of the Act after sub-section (1) by Section 2 of the U. P. Secondary Education Service Commission and Selection Boards (Amendment) Act No. 26 of 1991 enforced w. e. f. 6-4-1991 : "(1-A). Every teacher appointed by promotion, on adhoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981, as amended from time, to time, who possessed the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Board (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such adhoc appointment to the date of such commencement. (1-B) Every teacher directly appointed after June 12, 1985 and before May 13. (1-B) Every teacher directly appointed after June 12, 1985 and before May 13. 1989 on adhoc basis against a substantive vacancy in the Certificate of Teaching grade in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulies) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such adhoc appointment to the date of such commencement (1-C) Every teacher appointed by promotion or by direct recruitment before July 31, 1988 on adhoc basis against a substantive vacancy in accordance with Section 18, who possesses the qualifications prescribed under, or exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment to the date of such commencement." 21. It is evident from Section 33-A of the Act as amended by U. P. Act No. 26 of 1991 that the services of every teacher directly appointed before the commencement of the U. P. Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985 on adhoc basis against substantive vacancy in accordance with paragraph 2 of the U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended from time to time, stood regularised in terms of sub-section (1) and the services of every teacher appointed by promotion on adhoc basis against substantive vacancy in accordance with paragraph 2 of the said Removal of Difficulties Order, 1981, stood regularised with effect from the date of commencement of section 2 of the Amending Act No. 26 of 1991 and such teacher would be deemed to have been appointed in substantive capacity provided he/she has been continuously serving the institution from the date of such adhoc appointment to the date of the commencement of the Amending Act i.e. 6-4-1991. Similarly the teachers appointed under Section 18 of the Act on adhoc basis against substantive vacancies were also given the same very benefit and all such teachers, according to sub-section (2) of Section 33-A shall be deemed to be on probation from the date of commencement referred to in sub-section (1) of (1-A) or (1-B) or (1-C), as the case may be. While sub-section (1-B) refers to teachers appointed directly after June 12, 1985 and before May 13, 1989 on adhoc basis in substantive capacity in C. T. grade, sub-section (1), (1-A) and (1-C) do not specify any grade. The question to be considered is as to whether the expression "every teacher' occurring in sub-section (1), (1-A) and (1-C) include Principal 22. The term 'teacher' as defined in Section 2 (k) includes principal of an Intermediate College and Head Master of a High School. The criteria formulated by the Commission for selection of all the scheduled teachers including the head of the institution are substantially the same as the Act too does not make any difference in this regard. Wherever the Legislature intended the word 'teacher' to be meant as teacher excluding the Head of the institution, it has so provided expressly, as is evident from Section 21-A (b) occurring in Chapter IV-A inserted by Section 4 of the U. P. Act No. 19 of 1985. Chapter IV-A deals with "reserve pool teachers" and Section 21-A (b) provides that 'teacher' shall have the meaning assigned to it by the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, but it shall not include the Principal or Head Master. It is pertinent to mention here that Section 33-A as it stood prior to its amendment by the U. P. Act No. 26 of 1991 was also inserted in the Principal Act by U. P. Act No. 19 of 1985, but the definition of the word 'teacher' as given in Section 21-A (b) was confined for its applicability to Chapter IV-A only which deals with the reserve pool teachers. The said definition was not extended to Section 33-A which was inserted in the Principal Act by Section 5 of the same U. P. Act, 1985 by Section 4 where of Chapter IV-A (Sections 21-A, 21-B, 21-C and 21-D) was insterted in the Princpipal Act. The said definition was not extended to Section 33-A which was inserted in the Principal Act by Section 5 of the same U. P. Act, 1985 by Section 4 where of Chapter IV-A (Sections 21-A, 21-B, 21-C and 21-D) was insterted in the Princpipal Act. Sub-section (1) of section 33-A of the Act was certainly not applicable to an adhoc appointment made by way of promotion. The appointment by promotion on adhoc basis against substantive 'vacancy whether made in accordance with paragraph 4 of the U P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the Removal of Difficulties Order, 1981) or made under section 18 of the Act, are covered by sub-sections (1-A), and (1-C), since the petitioner was appointed before intimation of vacancy to the Commission, her case would not be covered by sub-section (1-C) which deals with the appointment by premotion or by direct recruitment before July 31, 1988 on adhoc basis against substantive vacancy in accordance with section 18 of the Act 23. However, it is to be seen whether the petitioner is entitled to get the benefit of sub-section (1-A) as inserted in section 33-A by section 2 of the U. P. Act No. 26 of 1991 enforced with effect from 6-4-1991. Sub-section (1-A) seeks to regularise the services of "every teacher appointed by promotion, on adhoc basis against substantive vacancy in accordance with paragraph 2 of the U. P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981, as amended from time to time" subject to fulfilment of other conditions as to qualifications etc. indicated in the sub-section. Paragraph 2 of the Removal of Difficulties Order, 1981 as amended by Notification dated September 11, 1981 reads as under : "2. Management of an institution may appoint by promotion or by direct recruitment a teacher on purely adhoc basis in accordance with the provisions of this Order in the case of substantive vacancy caused by death, retirement, resignation, or otherwise." The procedure for such adhoc appointment is contained in paragraphs 4 and 5 of the Removal of Difficulties Order, 1981. Paragraph 4 reads as under :- "4. Paragraph 4 reads as under :- "4. Adhoc appointment by promotion ;- (1) Every vacancy in the post of an Head of an institution may be filled by promotion ; (a) in the case of an Intermediate College, by the senior most teacher of the institution in the lecturer's grade ; (b) in the case of a High School raised to the level of an Intermediate College, by the Head Master of such High School ; (c) in the case of a Junior High School raised to the level of a High School, by the Head master of such Junior High School. (2) Every vacancy in the post of a teacher in Lecturer's grade may be filled by promotion by the Senior most teacher of the institution in the trained graduate (L.T.) grade. (3) Every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the senior most teacher of the institution in the trained undergraduate (CT.) grade. (4) Every vacancy in the post of a teacher in trained undergraduate (C.T.) grade shall be filled by promotion by the senior most teacher of the institution in the J.T.C. grade or B.T.C. grade. Explanation ;-For the purposes of clauses (1) to (4) of this paragraph, the expression "senior most teacher" means the teacher having longest continuous service in the institution in lecturer's grade or the trained graduate (L.T) grade, or trained undergraduate (C.T.) grade or J.T.C. or B.T.C. grade, as the case .may be." Paragraph 5 of the Removal of Difficulties Order, 1981 as amended by Removal of Difficulties (fourth) Order, 1982, is also quoted as below for ready reference : "5. Adhoc appointment by direct recruitment :-(1) Where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5). (2) The management shall as soon as may be, inform the District Inspector of School about details of the vacancy any such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. (3) Every application referred to in clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied ; (a) by a crossed postal order worth ten rupees payable to such Inspector. (3) Every application referred to in clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied ; (a) by a crossed postal order worth ten rupees payable to such Inspector. (b) by a self addressed envelop bearing postal stamp for purposes of registration. (4) (a) The District Inspector of Schools shall cause the best candidates selection on the basis of quality points specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazette Government servants under the personal supervision of such Inspector. (b) Where two or more candidates obtain equal quality points, the candidate obtaining higher percentage of marks in all examinations (High School, Intermediate, Graduate Degree and Post Graduate Degree) essential for the particular grade, shall be placed higher and if such percentage of marks in the last essential examination or degree, as the case may be, shall be placed higher. In case percentage of marks in the last essential examination/degree is also equal, the candidate senior in age shall be placed higher." (5) If more than one teacher of the same subject or category is to be recruited for more than one institution the name of the selected teacher and the names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof on the top list of the institution. This processes shall be repeated, till both the lists are examined. Explanation :-In relation to an institution imparting instruction to women the expression "District Inspector" shall mean the "the Regional Inspectress of Girls School." 24. It is evident from the aforesaid provisions enacted in the Removal of Difficulties Order, 1981 that recourse to direct recruitment in accordance with paragraph 5 can be had only where a vacancy cannot be filled by promotion in accordance with paragraph 4. In the instant case, the appointment of the petitioner was made by the order of the District Inspector of Schools/ Authorised Controller dated 5-7-1986 against the substantive vacancy in the post of Principal occurring on 30-6-1986 and since it was made before intimation of vacancy to the Commission, it cannot be said to be an appointment under the provisions of section 18 of the Act. The only other provision to which the appointment of the petitioner is referable is paragraphs 2 and 4 of the Removal of Difficulties Order, 1981. The petitioner being the senior most teacher of the institution in lecturer's grade, was entitled to be appointed on adhoc basis by promotion to fill the vacancy in the post of the Head of the institution in accordance with paragraph 4 of the Removal of Difficulties Order, 1981 and it was on this basis that the order dated 5-7-1986 was passed by the District Inspector of Schools/Authorised Controller of the Institution and admittedly the second respondent, who was earlier given charge of the office by outgoing Principal, handed over the charge to the petitioner. Her appointment was, therefore, an appointment in accordance with paragraph 2 of the Removal of Difficulties, Order, 1981 within the meaning of sub-section (1-B) of section 33-A of the Act as amended by U. P. Act no. 26 of 1991 and there is no dispute that she is possessed of the prescribed qualification fulfills the other pre-requisite conditions for regularisation to the post held by her in terms of sub-section (l-A) of section 33-A of the Act. Sri A. K. Singh, learned counsel for the respondent commission, however, placed reliance upon a Division bench decision of this court in Sri P. L Chaudhary v. State of U. P., 1978 (4) ALR 503 and contended that in view of said authority, the petitioner is not entitled to claim regularisation under section 33-A of the Act as amended by the U. P. Act no. 26 of 1991. In P. L. Chaudhary's case the Division Bench was considering the applicability of section 16-GG of the U. P. Intermediate Education Act, 1921 to the posts of head of the Institutions and it has observed as below : "The section creates a legal fiction that appointment of every such teacher shall be deemed to be in a substantive capacity on probation from 21st April, 1977, sub-section (3) is however, in the nature of exception. It lays down that the provisions contained in section shall not entitle any teacher to substantive appointment on his post if on the date of commencement of this section of such post had already been filed and selection for appointment on the post had already been made thereunder or if the teacher was related to any member of the Committee of Management or Principal or Headmaster of the Institution. 25. The Legislature enacted section 16-GG to grant benefit to those teachers who had been appointed on adhoc basis during the period selection could not be made and for that purpose it validated their appointment even through the adhoc appointees were not selected or appointed in accordance with the procedure laid down in sections 16-E, 16-F and 16-FF. On a plain the simple reading of section it is amply clear that its provisions do not regularise adhoc appointments of head of institution. The provisions of the Act and the Regulations framed thereunder have consistently maintained distinction in the matter of qualifications constitution of Selection Committees, selection and appointment of a head of Institution and a teacher. The legislature was alive to the fact that the head of an institution is invested with the power of administrative control over the affairs of the institution and he is responsible for the discipline and smooth running of the institution. Under the supervision of the head of the institution teachers carry out their duty and the students always look to the head of the institution as guiding force. The legislature therefore while prescribing procedure for selection of teachers and prescribing qualifications laid down separate provisions for selection and appointment of the head of the institution. The legislature in its wisdom did not consider it necessary to regularise the adhoc appointment of head of institutions, particularly for the reason that under the Removal of Difficulties, Order, the seniormost teacher of an appointment was appointed head of the institution on adhoc basis without screening or without judging his suitability for the said post. The legislative intent is quite obvious. Benefit of section 16-GG is not available to those who may have been appointed head of an institution on adhoc basis without any selection. 26. Learned Counsel urged that section 16-GG regularised the appointment of every teacher, it would include the Principal who is head of the institution also. The legislative intent is quite obvious. Benefit of section 16-GG is not available to those who may have been appointed head of an institution on adhoc basis without any selection. 26. Learned Counsel urged that section 16-GG regularised the appointment of every teacher, it would include the Principal who is head of the institution also. He emphasised that the Act does not define the expression "teacher", therefore, teacher would include head of the institution also. It is true that in its generic sense the expression "teacher" would include the Principal or Head Master who is head of the institution, but the legislature has maintained distinction between a teacher and head of the institution in making provision for their selection and appointment under sections 16-E, 16-F "and 16-FF. It is significant to note that two different expressions have been used in sections 16-E, 16-F and 16-FF in making provisions for selection of teachers and Head of institution. If the expression "teacher" included head of the institution also, there was no necessity for using two separate expressions "teachers" and "heads of institution." The expression "teachers" and "head of institution" have been consistently mentioned in sections 16-E, 16-F and 16-FF whereas section 16-GG do not apply to head of institution, and any person appointed as Principal or Head Master of an institution on adhoc basis during the period between August 18, 1975 and September 30, 1976, is not entitled to the benefit of section 16-GG. This conclusion is fur there supported by the definition of "teacher" as contained in clause 2 (c) of the U. P. Secondary Education (Removal of Difficulties; (Fifth) Order, 1976. The expression "teacher as defined in clause 2 (c) means a teacher (not being head of the institution) of a recognised Intermediate College, Higher Secondary School or High School and includes a male teacher appointed in an institution for girls and a lady teacher appointed in an institution for boys The definition of teacher as contained in this provision indicates that the expression "teacher" does not included Principal or Head Master of the institution." The above noted decision of the Division Bench was followed by another Division Bench in Ram Saran Pandey v. State of U P., ly83 UP LB EC 451. This was also a case under section 16-GG of the Intermediate Education Act, 1921. This was also a case under section 16-GG of the Intermediate Education Act, 1921. The reasoning given by the Division Bench in Ram Saran Pandey's case for holding that the term "teacher" do not include heads of Institution for the purpose of section 16-GG are contained in paragraphs 6 and 7 of the report which are quoted as below : "Now when section 16-GG starts by laying down that not withstanding anything contained in section 16-E, 16-F and 16-FF, appointment of every teacher of an Institution appointed during a certain period shall stand regularised, it is not possible to contend that the expression "teacher" should include the head of the institution. In the context in which, in which this Section namely section 16-GG has been placed, in the suquence in which this section has been enacted, namely, with the preceding sections 16-E, 16-F, 16-FF and further, when an explicit reference has been made to the said three Sections and it has been laid down that notwithstanding anything contained in the said three Sections the appointment of a teacher made between a certain specified period shall stand regularised, then according to the well known rules of interpretation, the expression, teacher must be given the same interpretation as it to be given in the preceding three Sections. It is not possible to argue that while in sections 16-E, 16-FF the expression teacher will not include the head of the institution in section 16-GF the expression teacher should include the head of the institution we have already pointed out that the said Act in its aforesaid section has maintained a classification so far as the teachers are concerned as distinguished from the heads of the institution. It is permissible to conclude that the classification is still continuing in the instant section also namely section 16-GG. Its operation is confined only to teachers and not to the head of the institution. We do not find anything illegal or irrational in having such distinction between the teacher and the Principals. The Division Bench referred to above has referred to certain aspects of the matter and we express our agreement with the approach of the said Division Bench on this point. 27. Some support may also be found for the aforesaid view from the provisions contained in clause (b) of sub-section (3) of section 16-GG. The Division Bench referred to above has referred to certain aspects of the matter and we express our agreement with the approach of the said Division Bench on this point. 27. Some support may also be found for the aforesaid view from the provisions contained in clause (b) of sub-section (3) of section 16-GG. It is laid down in the said provision that nothing in this section shall be construed to entitle any teacher to substantive appointment, if such teacher was related to any member of the Committee of Management or the Principal or Head Master of the Institution concerned. It is obvious that the expression 'teacher' cannot be held to include the Principal or Head Master of the institution in view of the said disqualification laid down in clause (b) of subsection (3) of section 16-GG. The learned counsel contended that the said clause should be interpreted in the manner that if the Principal is related to the member of the Committee of Management then this disqualification 18-A.W.C.-Suppl. should be attached to him. In our view, if that were the intention then a different phraseology would have been employed by the legislature and there was noting to prevent the Legislature from specifically including the heads of the institution of the provisions in question. 28. It may be noticed that an argument was advanced in Ram Saran Pandey's case (supra) to the effect that in view of the definition of the expression "teacher" as given in section 2 (k) of the U. P. Act No. 5 of 1982 the benefit of regularisation under section 16-GG of the Intermediate Education Act may be extended even to the heads of the institution working on ad hoc basis within the meaning of said Section. The Division Bench repelled this contention on the ground that the expression "teacher" as defined in section 2 (V) cannot be given retrospective effect. The Division Bench repelled this contention on the ground that the expression "teacher" as defined in section 2 (V) cannot be given retrospective effect. A perusal of the reasonings given by the two Division Benches referred to above, makes it abundantly clear that the benefit of section 16-GG was not extended to Principal of an Intermediate College or Head Master of High School basically for the reason that phraseology of the expression "teacher" and "heads of the Institutions" used separately in the related section 16-E, 16-F and 16-FF of the Intermediate Education Act, 1921 as also the definition of the expression "teacher" as given in clause (2) (c) of the U. P Secondary Education (Removal of Difficulties) (Fifth) Order, 1976 which was expressly excluded head of an Intermediate College or High School. Reliance was also placed on sub-section (3) (b) of section 16-GG of the Intermediate Education Act in respect of conclusion that "teacher" in section 16-GG do not include Principal of an Intermediate College or Headmaster of a High School. It may be pertinent to mention here that the U. P. Secondary Education (Removal of Difficulties) (Fifth) Order, 1976 and section 16-GG of the Intermediate Education Act, 1921 were interlinked and born out of the same situation. 29. It may be recalled that on account of drastic amendments having been made in the Intermediate Education Act by virtue of the U. P. Secondary Education Laws (Amendment) Act, 1974 (U. P. Act no. 6 of 1974) difficulty had arisen in giving effect to the provisions of section 14 of the said Amending Act and to meet such situation the U. P. Secondary Education (Removal of Difficulties) Order. 1975 was issued by means of the Notification dated 18-8-1975 in exercise of power conferred by section 22 of the U. P. Act no. 6 of 1974 enabling the management to make ad hoc appointments for a period "not exceeding six months" in the manner indicated in the said. Removal of Difficulties Order, 1975. The period was extended by U. P. Secondary Education (Removal of Difficulties) (2nd) Order, 1976 on June 30, 1976 by subsequent Notification dated 28-6-1976. The ad hoc appointments made between August, 1975 and September 30, 1976 pursuant to the aforesaid Removal of Difficulties Order were sought to be regularised by enacting Section 16-GG which was inserted in the Principal Act by section 35 of the U. P. Act no. The ad hoc appointments made between August, 1975 and September 30, 1976 pursuant to the aforesaid Removal of Difficulties Order were sought to be regularised by enacting Section 16-GG which was inserted in the Principal Act by section 35 of the U. P. Act no. 5 of 1977 w.e.f. 21-4-1977. The U. P Secondary Education (Removal of Difficulties) (Fifth) Order, 1976 sought to regularise any person appointed by the Committee of Management as 'teacher' on or before June 30, 1975 for any period as temporary measure with approval or permission of the Inspector and such person had worked thereafter upto November 15, 1976. 30. It may be recalled that by the U. P. Secondary Education (Removal of Difficulties) (Fourth) Order, 1976 the expression "any extension beyond September 30, 1976," which was made in the previous Removal of Difficulties orders substituted by the expression "any extension beyond November 15, 1976." This was last extension of the term which was originally fixed for six months by virtue of paragraph 2 of the U. P. Secondary Edu cation (Removal of Difficulties) Order, 1975. The definition given in paragraph 2 (c) of the U. P. Secondary Education (Removal of Difficulties) (Fifth) Order, 1976, was therefore, very much relevant for construing the expression teacher occurring in section 16-GG of Intermediate Education Act. The two Division Benches referred to above are, therefore, not of much help in the construction of provisions contained in section 33-A of the U. P. Secondary Education Services Commission and Selection Boards Act, 1982, section 2 (k) whereof defines 'teacher' as inclusive of Principal of Intermediate College or Head Master of High School in the matter of selection for appointment. There is no substantial difference in the methodology for the purpose of determining the merits. The only difference is that in case of Principal or Head Master, the two senior most teachers of the College are called for interview even if they do not apply for the post and further that they are not subjected to screening for the purposes of short listing of candidates to be called for interview. The Removal of Difficulties Order, 1981 also does not make any qualitative distinction with regard to adhoc appointment on the post of Principal. The Removal of Difficulties Order, 1981 also does not make any qualitative distinction with regard to adhoc appointment on the post of Principal. IT is evident from paragraphs 4 and 5 of the said Removal of Difficulties Order that in case of appointment by promotion seniority is the only criterian for appointment whether it is for the post of Principal of Intermediate College or the post of Head Master of High School or to the post of teacher in Lecturer's grade. For direct appointment as vizualised by paragraph 5 of the said Removal of Difficulties Order also there is no qualitative difference in regard to the determination of merit for adhoc appointment. The guidelines formulated by the commission as disclosed herein before, also do not provide any separate criteria for determining the merits of the candidates for appointment to the post of Principal, Head Master, Lecturers teachers in L. T. grade. It is evident that the provisions enacted in the U. P. Intermediate Education Act, 1921 and those in the U. P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 in regard to selection of the teachers including heads of the institution are not in parimateria. The reasonings given by the aforesaid two Division Benches relied upon by the learned counsel for the respondent commission, are, therefore, not of much avail for the purposes of construing scope and ambit of section 33-A of the Act. 31. The only other aspect that requires to be considered is as to the effect of sub-section (3) of section 33-A of the Act, which reads as under : "33-A. Regularisation of certain appointments ;-? 0) ...... (2) ...... (3) Nothing in this section shall be construed to entitle any teacher to substantive appointment- (a) if on the date of such commencement, such post had already been filled or selection for such post had already been made in accordance with this Act, or (b) if such teacher was related to any member of the Committee of Management or Principal, or Head Master of the institution concerned. Explanation.-For the purposes of this sub-section a person shall be deemed to be related to another if- (i) they are members of a Hindu undivided family ; or (ii) they are husband and wife ; or (iii) the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921." 32. Relying upon clause (b) of sub-section (3) the learned counsel for the respondents contended that this provision being identical to the corresponding provisions contained in Sub-section (3) of section 16-GG of the Intermediate Education Act, 1921, interpretation of the provisions as given by the Division Benches referred to above should be accepted while construing section 33-A of the Act. I am not impressed by this submission of the learned counsel for the respondents, firstly for the reason that the term 'teacher' was not expressly defined in the Intermediate Education Act, whereas it has been defined in the U. P. Act No. 5 of 1982 and according to the definition the term 'teacher' includes Principal or Head Master and secondly for the reason that Sub-section (3) (b) was not the sole basis to hold that 'teacher' did not include head of the institution under section 16-GG of the Intermediate Education Act, 1921. There is no qualitative and substantial difference in the manner of selection for appointment as Principal/Head Master or Lecturer or teacher in L.T. Grade under the provisions of the U. P. Act No. 5 of 1982 whereas there was some difference in the Intermediate Education Act, 1921 and the term 'teacher' and 'Principal' were side by side used and section 16-E, 16-F and 16-FF of the Intermediate Education Act. It is true that Sub-section (3) of section 33-A of the Act is identical to Sub-section (3) of section 16-GG of the Intermediate Education Act, 1921, but in my considered view Sub-section (3) of section 16-GG of the Intermediate Education Act and section 33-A of the U. P. Act No. 5 of 1982 only carve out an exception or may even be taken as a proviso to the main provision dealing with regularisation. While sub-sections (1), (1-A), (1-B), and (1-C) of section 33-A seek to regularise 'every teacher' appointed on adhoc basis in the manner indicated therein, Sub-section (3) provides that if any such teacher was related to any member of the Committee of the Management or Principal or Head Master of the institution concerned, he would not be entitled to claim the benefit of regularisation as vizualised by Sub-sections (1), (1-A), (1-B) and (1-C). The term 'teacher' used in Sub-sections of section 33-A is wide enough to include Principal or Head Master. The only effect of Sub-section (3) (b) is that if 'any teacher' other than the Principal or, Head Master seeking regularisation is related to any member of the Committee of Management or Principal or Head Master of the institution concerned, he/or she would not be given the benefit of regularisation and if the 'teacher' seeking regularisation is the Principal or Head Master, benefit of regularisation would not be available, if he/she is related to any member of the Committee of Management. Sub-section (3) adopts the expression 'any teacher' whereas the Legislature has chosen to adopt the expression 'every teacher' in Sub-sections (1), (1-A), (1-B) and (1-C) of section 33-A and it is in this context that the expression 'any teacher' occuring in Sub-section (3) of section 33-A has to be taken as an exception not entitled to regularisation in the circumstances specified therein. The expression 'any teacher' may as stated above cover the case of Principal or Head Master and in that event such Principal or Head Master would be denied the benefit of regularisation if he/she is related to any member of the Committee of Management, but in respect of lecturers or teachers in L.T. Grade exception will be attracted not only where he/she is related to any member of the Committee of Management but also if he/she is related to Principal or Head Master. The exception clause contained in Sub-section (3) cannot be construed in the manner as to make it repugnent to the provisions of Article 14 of the Constitution, nor can it be permitted by the construction to defeat the basic intent expressed in substantive provisions, it has to be construed harmoniously. The exception clause contained in Sub-section (3) cannot be construed in the manner as to make it repugnent to the provisions of Article 14 of the Constitution, nor can it be permitted by the construction to defeat the basic intent expressed in substantive provisions, it has to be construed harmoniously. The Statement of Objects and Reasons appended to the Amending Bill replaced by the Act No. 26 of 1991 too indicates that the qualified teacher appointed on adhoc basis whether by direct recruitment or by promotion were sought to be regularised. The statement of 'Objects and Reasons' is quoted as below : "Statement of Objects and Reasons-Section 33-A of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 provides for regularisation of the services of such teachers as were appointed directly before June 12, 1985 on adhoc basis against substantive vacancies in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 and possessing the prescribed qualifications or exempted therefrom. It has been decided to amend the said Act to regularise the services of those qualified teachers also who were- (a) appointed by promotion on adhoc basis against substantive vacancies in accordance with the provisions of paragraph 2 of the said Order of 1981 and are continuing as such ; and (b) appointed by promotion or by direct recruitment before July 13, 1988 on adhoc basis against substantive vacancies in accordance with section 18 of the said Act and are continuosly serving as such. 2. Since Certificate of Teacher grade has been declared to be a dying cadre from May 13, 1989 in Non-Government Secondary Schools and the new appointments in such cadre have since been stopped, it has been decided that the services of those teachers who were directly appointed on adhoc basis against substantive vacancies in such grade after June 12, 1985 and before May 13, 1989 in accordance with the provisions of paragraph 2 of the said Order of 1981 and are continuing as such should also be regularised. 3. Since the State Legislature was not in session and immediate legislative action to implement the said decision was necessary, the Uttar Pradesh, Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1991 (U. P. Ordinance No. 28 of 1991) was promulgated by the Governor on April 6, 1991." 33. 3. Since the State Legislature was not in session and immediate legislative action to implement the said decision was necessary, the Uttar Pradesh, Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1991 (U. P. Ordinance No. 28 of 1991) was promulgated by the Governor on April 6, 1991." 33. It may be incidentally mentioned that the Head of the Institutions maintained by Zila Parishads appointed without following prescribed procedure were regularised by and under the provisions of the U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1983. 34. In view of the above discussion, I am of the view that the petitioner is entitled to the benefit of regularisation under section 33-A (1-A) of the Act. Accordingly the petition succeeds and is allowed. The petitioner shall be deemed to have been appointed in substantive capacity as Principal of the Institution concerned on probation with effect from 6th April, 1991 from the date of commencement of the U. P. Act No. 26 of 1991. Parties shall bear their own costs. Petition allowed.