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1995 DIGILAW 635 (ALL)

RADHEY SHYEM v. STATE OF U P

1995-05-26

A.L.RAO, G.P.MATHUR

body1995
G. P. Mathnr, J. This Special Appeal has been filed challenging the judgment and order dated April 7, 1995 of the learned Judge dismissing Writ Petition No. 6645 of 1995 filed by the appellants. 2. In order to appreciate the controversy involved in the appeal, it is necessary to mention the relevant facts. A large number of posts of Assistant Teachers in Government Colleges in the State were lying vacant as regular selection could not be made by the Commission. Since teaching in the College was being severally affected, a Government Order was issued on July 15, 1989 directing that ad hoc appointment be made in order to fill in the vacancies. It was mentioned that the aforesaid ad hoc appointments will only be for a period of one year or till a regularly selected candidate joined the post whichever contingency took place earlier. In pursuance of the Government Order, the Director of Education issued an advertisement in August, 1986 for making a selection on the post of Assistant Teacher and it was mentioned therein that the appointment will come to an end on May 20, 1990 or when a regularly selected candidate joins the post, whichever contingency occurred earlier. It appears that appellants Radhey Shyam and Pradeep Kumar were selected and an appointment order appointing them as Assistant Teacher was issued in January, 1991. In the appoint ment order, it was clearly mentioned that the same was purely temporary and would come to an automatic end on May 14, 1991, or could be terminated even before that date by one months notice or payment of one months salary in lieu thereof. One Manjuvati, who had also been appointed in accordance with the same Government Order dated July 15, 1989 filed Writ Petition No. 14794 of 1991- Manjuvati, v. State of U. P. , challenging the action of the respondent in not permitting her to work as Assistant Teacher after May 20, 1991. It is noteworthy that a similar condition had been mentioned in her appointment order namely, that her appointment would come to an automatic end on May 20, 1991. The writ petition was allowed on July 13, 1991 and the operative portion of the order reads as follows :- "for the reasons stated above this writ petition is allowed. It is noteworthy that a similar condition had been mentioned in her appointment order namely, that her appointment would come to an automatic end on May 20, 1991. The writ petition was allowed on July 13, 1991 and the operative portion of the order reads as follows :- "for the reasons stated above this writ petition is allowed. The petitioners shall be allowed to continue on the post as teacher until a candidate duly selected and recommended joins the post and shall be entitled to get all benefits like regular teacher including back wages, if any". While allowing the writ petition, the court issued a general direction that all such teachers who had been appointed on ad hoc basis in pursuance of the Government Order dated July 15, 1989 shall be allowed to continue on their posts on which they were appointed and shall be entitled to the same benefits as that of Manjuvati, who had filed the writ petition. The judgment of this court is reported in 1991 (2) UPLBEC 980. It is admitted position that the judgment and order, dated July 13, 1991 of this Court became final and binding between the parties as the same was not challenged by filing any appeal. The appellants who had also been appointed as ad hoc teacher in pursuance of the same Government Order also got the benefit of the judgment rendered in the case of Manjuvati (supra), and continued to work as Assistant Teacher on ad hoc basis in a Government College, 3. The Government of Uttar Pradesh exercising powers conferred by the provisio to Article 309 of the Constitution, made the U. P. Subordinate Educational (Graduates Grade) Service Rules, 1983 which were published on July 6, 1983. Rule 2 of this Rules provides that the U. P. Subordinate Educational (Trained Graduates Grade) Service comprises Group c posts and sub-rule (h) of Rule 3 defines service as the U. P. Subordinate Educa tional (Trained Graduates Grade) Service. Sub-rule (1) of Rule 3 lays down that "substantive appointment" means an appointment not being an ad hoc appointment on a post in the cadre of the service, made after selection in accordance with the Rules and if there are no rules, in accordinance with the procedure prescribed for the time being by Executive instructions issued by the Government. Sub-rule (1) of Rule 3 lays down that "substantive appointment" means an appointment not being an ad hoc appointment on a post in the cadre of the service, made after selection in accordance with the Rules and if there are no rules, in accordinance with the procedure prescribed for the time being by Executive instructions issued by the Government. In order to establish a Subordinate Services Board for certain categories of Subordinate Services and for matters connected there with and incidental thereto, the State Legislature enacted the U. P. Subordi nate Service Selection Board Act, 1988 which received the assent of the Governor on March 31, 1988 and was published 00 the same date. Section 2 of this Act lays down that the provisions of the Act shall apply in relation to direct recruitment to all such Group c posts as may be specified by the State Government by Notification in this behalf. A Notification was thereafter issued on November 25, 1989 in exercise of powers under sub section (1) of Section 2 of U. P. Subordinate Services Selection Board Act, 1988 (hereinafter referred to as the Act) specifying the posts mentioned in the Schedule attached to the Notification as Group c post to which the aforesaid Act applied in relation to direct recruitment. In the Schedule, the U. P. Education Service (Senior and Junior) Pay Scales was mentioned at SI. No. 17 and post of Assistant Teacher L. T. Grade was shown as belonging to the said Service. The result of the aforesaid Notification was that the selection on the post of Assistant Teacher L. T. Grade was to be made by U. P. Subordinate Services Selection Board (hereinafter referred to as the Selection Board ). The Selection Board issued an advertisement on May 23, 1992 inviting applications for appointments on the post of Assistant Teacher in L. T. Grade including the appointment in the Hill Cadre and the last date for submitting the application was June 15, 1992. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 were amended on November 6, 1992 and U. P. Subordinate Education (Trained Graduates Grade) Service (First Amendment) Rules, 1992 were promulgated. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 were amended on November 6, 1992 and U. P. Subordinate Education (Trained Graduates Grade) Service (First Amendment) Rules, 1992 were promulgated. Under the Amended Rules, the procedure of recruitment on the post of Assistant Teacher for L. T. Grade was entirely changed and it was provided that such appointments shall be made on the basis of a selection conducted by a Regional Selection Committee chaired by the Regional Deputy Director of Education. This was followed by a Notification dated February 15, 1993 issued under Proviso to Section 2 (1) of U. P. Subordinate Services Selection Board Act, 1983 whereby the post of Assistant Teacher in L. T. Grade was withdrawn from the purview of U. P. Subordinate Services Selection Board. 4. In pursuance of the advertisement issued by Selection Board on May 23, 1992 for holding selection on the post of Assistant Teacher in L. T. Grade, a large number of candidates made applications. The Board commenced interview from April 19, 1994 and the result was published on January 22, 1995. The State Government, thereafter, took steps for making appointments of those persons who had been selected by the Selection Board as Assistant Teacher in Government Colleges and as a result of the appointments o made the services of such teachers who had been appointed on ad hoc basis in pursuance of the Government Order, dated July 15, 1989 were terminated. The appellants, who had also been appointed on ad hoc basis, challenged the termination of their services by filing the writ petition. Having failed to get any relief from the learned Single Judge they have preferred the present Special Appeal. 5. The principal submission of Sri Ashok Khare, learned counsel for the appellants is that in terms of the order passed by this Court on July 13, 1991 in the case of Manjuvati (supra), which is binding upon the parties, the appellants are entitled to continue on the posts as teacher until a candidate duly selected and recommended joins the post and as in the pre sent case no proper selection has been made, they are entitled to continue as Assistant Teachers and the order passed by the Authorities terminating their services is illegal. It is submitted that the Selection Board had merely invited the application for the post of Assistant Teacher by issuing an advertisement on May 23, 1992 but on account of amendment to U. P. Sub-ordinase Educational (Trained Graduates Grade) Service Rules, 1933 by the First Amendment on November 6, 1992 the procedure for recruitment on the post of Assistant Teacher was drastically changed and it was provided that such appointments shall be made on the basis of a selection conducted by the Regional Selection Committee. It has been further submitted that the State Government having issued a Notification on February IS, 1993 withdrawing the post of Assistant Teacher from the purview of the Selection Board, the Selection made by the Board and the result declared by it on January 22, 1995 was without any authority of law and thus the candidate selected by the Board cannot be held to be duly selected and recommended* and consequently the appellants are entitled to continue. The question to be considered is whether it is open to the appellants to challenge the selection made by the Selection Board and if so whether on account of the Notifica tion issued by the State Government on February 15, 1993 withdrawing the post of Assistant Teacher from the purview of the Selection Board, the Selection made by the Board, result whereof was declared on January 22, 1995, has become illegal. 6. The facts, mentioned above, would show that U. P. Subordinate Educational Trained Graduates Grade) Service comprises Group posts and the Selection Boards Act, 1988 applies in relation to direct recruitment to all such Group posts which may be specified by the State Government by Notification in this behalf. The State Government issued a Notification on November 25,1989 specifying the post of Assistant Teacher L. T. Grade as a Group c post to which Selection Boards Act 1988 applied in relation to direct recruitment. Therefore, after the aforesaid Notification had been issued, it was the Selection Board which had the Authority to make selection on the post of Assistant Teacher. The Selection Board issued advertise ment on May 22, 1992 inviting applications for the post of Assistant Teacher and the last date for submitting the application was June 15, 1992. Therefore, after the aforesaid Notification had been issued, it was the Selection Board which had the Authority to make selection on the post of Assistant Teacher. The Selection Board issued advertise ment on May 22, 1992 inviting applications for the post of Assistant Teacher and the last date for submitting the application was June 15, 1992. It was after quite sometime that on November 6, 1992, the U. P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983, where amended and it was provided that the Selection would be made on the basis of a Regional Selection Committee. The post of Assistant Teacher was actually withdrawn from the purview of the Selection Board on February 15,1993. The State Government also sent a communication clarifying that the selection on the vacancies which had already been intimated to the Selection Board prior to the amendment in the Rules on November 6, 1992 shall be done by the Board itself and the amended Rules will not apply to such vacancies. This was reiterated in a communication sent by the Government on August 8, 1993 to the Secretary of the Selection Board that the vacancies which had been notified prior to February 15, 1993 shall be made by the Board itself. Copies of these communications have been attached as Annexures 10 and 11 to the affidavit. Once the process of selection has commenced, a candidate, who is eligible and otherwise qualified in accordance with the relevant rules and the terms of advertisement, acquires a vested right for being considered for selection in accordance with the rules as they existed on the date of advertisement He cannot be deprived of that right on the amendment of the rules during the pendency of selection unless the amended rules are retrospective in nature. In N. T. Baven Katti v. Karnataka Public Service Commission, AIR 1990 SC 1233 , it was held as follows :- "where advertisement is issued inviting applications for direct recruit ment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate had right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement. ". The amendment in the rule was not retrospective. There is nothing to indicate either in the rules or in the Notification issued by the State Govern ment on February IS, 1993 which may show that any retrospective effect was being given to the Rules or that Selection on all pending vacancies was to be made by the Regional Selection Committee. Therefore, once the process of selection had commenced on May 23, 1992 by the Selection Board by issuing an advertisement inviting applications, the candidates who made applications in response thereto acquired a vested right to be considered by the Selection Board and their right could not be effected by subsequent amendment in the Rules or Notification dated February 15, 1993. For such candidate, the selection process had to be completed by the Selection Board and therefore, it was fully entitled to hold interview and the result of such interview published in January 22, 1995 is perfectly legal and valid. The candidates who have been so selected by the Board are in law regularly selected candidates and the State Government is fully entitled to appoint such candidates as Assistant Teachers in Government Colleges. 7. Sri Khare has, however, submitted that the right to selection crystalises only after the candidate is called for interview pursuant to the advertisement and in view of the fact that the process of interview was com menced by the Selection Board subsequent to February 15, 1993 when the post had already been withdrawn from the purview of the Board, the result declared by the Board is without any authority of law. In support of his submission, he has placed reliance on the observations made by the Apex Court in P. K. Jaiswal v. Devi Mukherjee, AIR 1992 SC 749 in para 5 of the report and also upon I. J. Diwakar v. Government of Andhra Pradesh, AIR 1982 SC 1556, Siya Ram Shakya v. State ofu. In support of his submission, he has placed reliance on the observations made by the Apex Court in P. K. Jaiswal v. Devi Mukherjee, AIR 1992 SC 749 in para 5 of the report and also upon I. J. Diwakar v. Government of Andhra Pradesh, AIR 1982 SC 1556, Siya Ram Shakya v. State ofu. P. , 1982 UPLBEC 324 and Praveen Zindal v. State ofharyana, 1993 Supp. (4) SCC 70. In our opinion the precise question which is up for consideration was not involved in the authorities cited by the learned counsel. In the case of P. K. Jaiswal (supra) the question for con sideration before the court was once the process for selection had started, whether it was open to the Government to freeze the process or the Com mission was entitled to complete the same. In fact the following observations made in para 5 negative the contention raised by Sri Khare. "if the Government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to the post in question, the Government can before an advertisement is issued by the Commission and the process of selection is under way request the Commission to withdraw the same till it decides on the question of amending the rules. The decision of the Government to withdraw the requisition sent to the Commission in November 1989 before the issuance of the adver tisement does not interfere with any vested right of selection because that stage had yet not reached. " Therefore, we are unable to accept the contention that the result of the selec tion published by the Selection Board on January 22, 1995 is without any Authority of law and the candidates selected therein cannot be held to be "regularly selected candidates. " 8. There is another aspect of the matter which has a bearing on the controversy raised. It is admitted position that the appellants had not applied in pursuance of the advertisement issued by the Selection Board on May 22, 1992. They are strangers to the process of selection conducted by the Selec tion Board. A challenge to the selection conducted by a statutory body, created under the authority of a valid legislation, cannot be entertained at the instance of a rank outsider who was not even an applicant for the post. They are strangers to the process of selection conducted by the Selec tion Board. A challenge to the selection conducted by a statutory body, created under the authority of a valid legislation, cannot be entertained at the instance of a rank outsider who was not even an applicant for the post. There fore, the appellants cannot be permitted to urge that the selection made by the Selection Board is illegal, or that the appointment orders issued by the State Government to those who have been selected by the Selection Board are illegal or invalid. 9. Since we are of the opinion that the selection made by the Selection Board is perfectly valid, the State Government was fully competent to issue appointment order in their favour and as a consequence thereof the services of appellants would stand terminated. 10. Sri Ashok Khare has also submitted that the appellants and all such ad hoc teacher? having continuously worked from 1990/91, they are entitled to be regularised and the termination of their services is illegal. It is submitted that the State Government has adopted a criteria of three years of continuous service with regard to teachers of privately aided Higher Secondary Schools, Degree Colleges and Universities and therefore, similar criteria should be adopted. He has referred to the amendment made in U. P. Secondary Education (Service Commission) Act, 1982 by U. P. Act No. 26 of 1991, U. P. Higher Education Service Commission Act and U. P. State Universities Act in this regard. None of these Acts relate to Government servants. The appellants claim regularisation on the post of Assistant teacher in Govern ment Colleges and the service condition of such teachers is entirely different from the service condition of teachers of privately aided institutions. The teacher of a Government College gets many benefits and privileges by virtue of his being a Government servant, which the teachers of privately aided institution do not get. Therefore, the contention raised by the learned counsel cannot be accepted. That apart in the illustrations cited by the learned counsel, the Legislature, by making appropriate amendment in the relevant statute, had made provisions for regularisation. The analogy of an Act of Legislature can have no application here. Therefore, the contention raised by the learned counsel cannot be accepted. That apart in the illustrations cited by the learned counsel, the Legislature, by making appropriate amendment in the relevant statute, had made provisions for regularisation. The analogy of an Act of Legislature can have no application here. So far as the power of Court in directing regularisation is concerned, the same is very limited, as has been emphasised in State of Haryana v. Piara Singh, AIR 1992 SC 2130 where it was observed as follows in para 12 of the report : "as would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act with the care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a parti cular service class, or category. Now take the directions given in the judgment under appeal. Apart from the fact the High Court was not right as we shall presently demonstrate in holding that the several condition imposed by the two Governments in their respective orders relating to regularisation are arbitrary not valid and justified, the High Court acted rather hastily in directing whole some regularisation of all such persons who have put in one years service, and that too unconditionally. " It may be mentioned here that the appellants had got a fixed term appoint ment which would have come to an automatic end on May 14, 1991. As observed in Director Institute of Management v. Smt. Puspa Srivastava, AIR 1992 SC 2070 where the appointment is purely on ad hoc basis and is contractual and by efflux of time the appointment comes to an end, the person holding such post can have no right to continue in the post. The appellants continued on the post only on the basis of the order passed by this Court in the case of Manjuvati (supra) otherwise their services would have been terminated long back. The appellants continued on the post only on the basis of the order passed by this Court in the case of Manjuvati (supra) otherwise their services would have been terminated long back. A person continuing in service on the strength of an order passed by a Court cannot claim that he should be regularised on the ground that he has been working for a long period. Since the appellants took advantage of the order passed in the case of Manjuvati (supra), they are bound by the said order and in terms thereof, their services have to be terminated after a regularly selected candidate has become available. 11. For the reasons mentioned above, the Special Appeal fails and is hereby dismissed. No cost. Appeal dismissed. .