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2008 DIGILAW 1887 (ALL)

AMITA SINHA v. STATE OF UTTAR PRADESH

2008-09-05

JANARDAN SAHAI, SUDHIR AGARWAL

body2008
JUDGMENT By the Court.—The dispute in this appeal is between the appellant Smt. Amita Sinha who was transferred on a vacant post of Assistant Teacher to Indian Girls Inter College, Allahabad and respondent No. 6 Smt. Asha Singh who is a candidate selected by the U.P. Secondary Education Services Selection Board and was empanelled for appointment as Assistant Teacher in that College against the same vacancy. 2. It appears that the appellant had made an application dated 6.7.2005 to the Additional Director of Education for her transfer from Bapu Balika Inter College, Faizabad, where she had been working, to the Indian Girls Inter College, Allahabad. The committee of management of Bapu Balika Inter College, Faizabad gave no objection to the appellant’s request for transfer on 17.5.2005. The committee of management, Indian Girls Inter College, Allahabad also gave its consent on 27.6.2005. The request was also accepted by the educational authorities and an order of transfer of the appellant was passed on 8.5.2006 by the Additional Director of Education pursuant to which the appellant joined as a Teacher in Indian Girls Inter College, Allahabad on 27.5.2006. Before this process of transfer of the appellant had begun, it appears that the management of Indian Girls Inter College, Allahabad had already notified the vacancy to the Commission on 13.1.2005. The Commission issued an advertisement on 15.9.2005 inviting applications from candidates for direct recruitment in respect of this vacancy also and in pursuance of the selection a panel of selected candidates was notified by the Commission on 26.6.2006. Respondent No. 6 was placed in the panel for being appointed in Indian Girls Inter College, Allahabad. However, the appellant had already been transferred to Indian Girls Inter College, Allahabad and respondent No. 6 could not be given any appointment in the College and, therefore, filed the writ petition giving rise to the present special appeal. She prayed for quashing the order of transfer passed in favour of the appellant. 3. The learned Single Judge has taken the view that once the process of selection by the Commission has begun by issuance of an advertisement inviting applications, the vacancy cannot be filled by transfer. In this case as the advertisement had already been issued by the Commission, the subsequent appointment of the appellant by transfer was invalid. This order of the learned Single Judge dated 25.5.2007 has been challenged in the present special appeal. 4. In this case as the advertisement had already been issued by the Commission, the subsequent appointment of the appellant by transfer was invalid. This order of the learned Single Judge dated 25.5.2007 has been challenged in the present special appeal. 4. We have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare on behalf of the appellant and Sri R.K. Ojha for contesting respondent; Smt. Asha Singh, Sri A.K. Yadav for the Commission and learned Standing Counsel representing respondents No. 1, 3 and 4. 5. Sri Ashok Khare, learned Senior Advocate made two submissions. He placed reliance upon the provisions of Section 16 of the U.P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as “1982 Act”) and submitted that under the said provision apart from the process of appointment by selection through the Services Commission there are other modes of appointment contemplated. He referred to provisions of sub-section (1) of Section 16 under which vacancy can be filled by promotion under Section 12 or from Reserve Pool Teachers under Section 21-B or by regularisation under Section 33-A, 33-B, 33-C, 33-D and 33-F. He also drew our attention to the three provisos in Section 16 under which a vacancy can be filled by appointment of a retrenched employee under Section 16EE of the Intermediate Education Act, 1921 or by compassionate appointment in L.T. Grade of a dependent of a teacher dying in harness. Section 16 thus contemplates apart from transfer and selection by the Commission various other modes of appointment. The view taken by the learned Single Judge that no appointment by transfer to an institution can be made after the vacancy in the post of teacher in that institution is advertised, is to be tested says Mr. Khare in the light whether the same limitation would apply to other modes of appointment as well because there can be no reason to apply a different standard in other modes of appointment. Khare in the light whether the same limitation would apply to other modes of appointment as well because there can be no reason to apply a different standard in other modes of appointment. The other submission made by Sri Khare is that a candidate selected by the Commission does not have an indefeasible right for appointment and a selected candidate can fail to get an appointment in several eventualities and in various situations where for instance, the vacancy may cease to exist on account of abolition of the post or increase in the age of superannuation or for other reasons and failure of the selected candidate to obtain an appointment where the post has already been filled up by another mode of appointment is one of such eventualities. 6. In order to appreciate the contention of learned Counsel for the appellant it is necessary to examine the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (for short described as 1982 Act) as well as of the Rules framed thereunder. Sub-section (1) of Section 16 provides that appointments to the post of teachers shall be made by the Committee of Management only on the recommendation of the Board. Sub-section (1) of Section 16 begins with a non-obstante clause and has overriding effect upon the provisions of the Intermediate Education Act, 1921. Sub­section (1) of Section 16 is, however, subject to certain provisions of the 1982 Act relating to appointments by promotion or ad hoc appointments, appointments from the reserve pool or by regularisation of teachers as contemplated under Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33F. Therefore, the contention of Sri Khare that the same limitation should be imposed in respect of all other modes of appointment will not hold good in the category of the above appointments to which Section 16(1) is subject. However, we have to consider the matter in the context of the two other modes of appointment mentioned in the provisos namely, the compassionate appointment under the dying in harness rules as well as in the case of retrenched employees. Before examining the said provision we may also refer to some other provisions of the 1982 Act and the U.P. Secondary Education Services Selection Board Rules,1998 (for short “1998 Rules”) which have been framed under the 1982 Act, reads as under : “32. Before examining the said provision we may also refer to some other provisions of the 1982 Act and the U.P. Secondary Education Services Selection Board Rules,1998 (for short “1998 Rules”) which have been framed under the 1982 Act, reads as under : “32. Applicability of U.P. Act No. II of 1921.—The provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act or the rules or regulations made thereunder shall continue to be in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher.” 7. It appears from the provision contained in Section 32 aforesaid that the intention of the Act was that although the provisions of Intermediate Education Act, 1921 as well as Regulations framed thereunder still continue to be in operation but the same would have to give way in case there is any inconsistency between the provisions of Intermediate Education Act, 1921 and 1982 Act. However, the problem is not solved by making a reference to Section 32 alone. It appears that Section 16 as it originally stood did not contain any provision for appointment by transfer. A Full Bench of this Court in Raghunandan Prasad Bhatnagar v. Administrator, Committee of Management, Gandhi Vidyalaya Inter College and others, 1985 Lab. I.C. 1648 was of the view that after commencement of the 1982 Act transfer could be made only as a mutual transfer between two employees. No transfer could be made to fill up a vacancy as the same is to be filled up only in accordance with the provisions of the 1982 Act. The judgment of this Court was set aside by the Apex Court in Om Prakash Rana v. Swarup Singh Tomar and others, AIR 1986 SC 1672 : 1986 Lab. I.C. 1183 and it was held that even mutual transfer is a mode of appointment and was therefore, invalid because all appointments other than those made in accordance with Section 16 of the 1982 Act were void. It appears that it was in this situation that the legislature introduced another proviso in Section 16 of the Act recognising appointment by transfer under the Regulations of the Intermediate Education Act. It appears that it was in this situation that the legislature introduced another proviso in Section 16 of the Act recognising appointment by transfer under the Regulations of the Intermediate Education Act. Section 16 however does not demarcate the field as to when an appointment can be made by transfer and when on the recommendation of the Board. Unless, therefore, the field of transfer and appointment on the recommendation of the Board is defined, the possibility of simultaneous processes of appointment going on resulting in two or more candidates claiming appointment on the same post would arise. The legislative intent that in the case of a clash in the operation of the two provisions, primacy has to be given to the appointment recommended by the Board is clear from the non-obstante clause in Section 16(1) and the provisions of Section 32. The spirit of these provisions is to give primacy to the provisions of the Commission Act. No doubt appointment by a transfer is recognised by Section 16 of the Act of 1982 itself and therefore would be valid but a field has to be carved out in which appointment by transfer can be made. Where the clash is irreconcilable, the Commission Act would prevail. 8. To find out areas in which there is no clash, we would have to refer to the 1998 Rules. Rule 10 of the 1998 Rules provides two sources of recruitment to various categories of teachers, i.e., 50% by direct recruitment and 50% by promotion. Rule 11 provides for determination and notification of vacancies. The scheme of sub-rule (1) of Rule 11 suggests that management has to determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the same through the Inspector, to the Board in the manner provided. Sub-rule (2) (a) provides that vacancies have to be computed and notified to the Inspector by July 15 of the year of recruitment. Under sub-rule (4) if any vacancy has not been notified, it is open to the Inspector to call for the record to notify the vacancy to the Commission. This is the first part of the recruitment process which relates to computation of vacancy. The second part of the recruitment process is the selection process covered under Rule 12. It begins from the date when the Commission advertises the vacancy. This is the first part of the recruitment process which relates to computation of vacancy. The second part of the recruitment process is the selection process covered under Rule 12. It begins from the date when the Commission advertises the vacancy. The said process of selection includes the interview of the candidates also. At the stage of interview the candidate is required to state the choice of institution where he would like to be appointed. The selection process, it appears, becomes complete when the Commission sends the panel of selected candidates with the names of the institution allocated to them to the District Inspector of Schools. The third stage of the process of recruitment covered under Rule 13 then begins. After the panel has been notified, the D.I.O.S. sends a letter to the committee of management where the candidate has to be adjusted and the committee of management is required to give appointment to the selected candidate. The third stage of the recruitment process appears to have the character of imperativeness. This is evident from the fact that a time limit has been set out in each of the subsequent processes after the date of notification of the panel up to the date the candidate joins. The Inspector is required to send the names of the selected candidate to the Management within a time bound period. The committee of management is also duty-bound to offer appointment to the selected candidate. In case the appointment is not given by the Committee of Management within the time specified in the Rule, the Director of Education can make inquiry under Section 17 of the Act and compel the management to give appointment. 9. Section 16 of the 1982 Act, as we have seen contains several modes of appointment and unless the situation in which the power to make appointment by a particular mode is defined, there would be a clash in simultaneous appointments being made under different modes against the same vacancy. This would be the last thing which the legislature could have intended to create. The provisions have, therefore, to be harmonised. 10. We may, therefore, examine to what extent such harmonization is possible in the case of the three modes of appointment contemplated in the provisos to Section 16. This would be the last thing which the legislature could have intended to create. The provisions have, therefore, to be harmonised. 10. We may, therefore, examine to what extent such harmonization is possible in the case of the three modes of appointment contemplated in the provisos to Section 16. For that purpose it will be necessary for us to refer to the Regulations relating to transfer framed under the U.P. Intermediate Education Act, 1921. Chapter III of the Regulations relates to conditions of service of the employees of an Intermediate institution. Regulations 55 to 61 govern the field of transfer. There are two striking features in the Regulations relating to transfer. The first is that the Regulations do not refer to the existence of a vacancy as a precondition for exercising power of transfer and secondly, that the choice for initiating the appointment process by transfer has not been given to the committee of management. The process begins with the candidate seeking transfer to make an application to the committee of management of the institution where he is working suggesting the name of the institution where he would like to be transferred. The committee of management, no doubt is required to give consent to the candidate’s request and the educational authorities their approval but the Management has no choice in initiating the process of transfer itself. Nor can the educational authorities initiate the process. Therefore, the process of transfer contemplated in the Regulation does not appear to have been designed as a mode of filling up a vacancy. It is another matter that in the absence of a vacancy it may not be possible to make an appointment by transfer as that could result in overstaffing. But transfer may be made where mutual transfer is sought for. In that case it appears no problem of overstaffing would arise. In order to avoid clash between the two modes of appointment, one by the Commission and the other by transfer, some limitation has to be placed. We have seen that the prime object of the Commission Act is to fill up the vacancies by holding selection through the Commission. Appointment by transfer to fill up a vacancy though permissible is not designed to fill up a vacancy. We have seen that the first part of the process of selection consists of computation of vacancy. We have seen that the prime object of the Commission Act is to fill up the vacancies by holding selection through the Commission. Appointment by transfer to fill up a vacancy though permissible is not designed to fill up a vacancy. We have seen that the first part of the process of selection consists of computation of vacancy. If any vacancy is instantly filled up by transfer before the stage of computation of vacancy is over, there would be no clash in the operation of the provisions of transfer and those of selection by the Commission. The clash arises only when the process of selection by the Commission starts after vacancies are advertised by the Commission. We are of the view that the only way to harmonize the two modes is to interpret the statute in a manner that the mode of appointment by transfer is confined to apply only in case where process to fill up the vacancy has not been initiated by the Commission. That process begins with the advertisement of vacancies. To take a different view would be to create a clash in the operation of the two sets of provisions. It is to be noted that the choice of the institution where the candidate wants to be appointed is to be given in the case of a headmaster at the time of application in response to the advertisement and in the case of other teachers at the stage of the interview. If the mode of appointment by a transfer is resorted to even after the stage of interview, the selected candidate would not be given appointment in the institution of his choice and he would have to be shifted to the institution of second choice but in case some other teacher has been appointed there, he may have to be adjusted in another institution and this process would go on and it is possible that he may not get any appointment at all. In any case one candidate selected by the Commission would have to lose appointment. 11. Transfer can also be made at any time of the year in a situation when there would be no conflict with the selection process. Such would usually be a situation when no vacancy is to be filled up as for instance in the case of mutual transfer. Let us now examine the correctness of Mr. 11. Transfer can also be made at any time of the year in a situation when there would be no conflict with the selection process. Such would usually be a situation when no vacancy is to be filled up as for instance in the case of mutual transfer. Let us now examine the correctness of Mr. Khare’s contention that the limitation regarding the stage in which the vacancy can be filled up by transfer can be no different from the other two alternative modes of appointment, namely, under Section 16EE of the Intermediate Education Act and compassionate appointment under the Regulations. The purpose of harmonious construction is to reconcile the operation of two apparently inconsistent provisions and by limiting the play of one or the other or both to make them operate within their own fields. In the case of conflict between the provisions relating to appointment on the recommendation of the Commission and appointment by transfer this was done by limiting the application of the provisions of transfer to a stage before issuance of advertisement by the Commission in view of our finding that the provisions of transfer were not designed to be a mode of recruitment although a transfer order would not be invalid on account of the mere fact that the post on which the transfer was made was vacant so long as the process of filling up the vacancy had not reached a particular stage. As distinguished from a transfer, appointment of retrenched employees can be made only against a vacancy. In the case of a compassionate appointment too the appointment has to be made against an existing vacancy or if it is to be made when there is no vacancy by creating a supernumerary post it would have to be adjusted as soon as a vacancy is created. The two other modes of appointment are, therefore, meant to operate only on the existence of a vacancy just as in the case of appointment by the Commission. 12. It is to be noted that the element of the Management’s discretion in refusing consent to a proposal of transfer of a teacher of another institution is unfettered. Under the scheme of the Regulations relating to transfer no appointment of a teacher can be made in the institution without consent of the Management while in the other two modes of appointment the Management has little discretion. Under the scheme of the Regulations relating to transfer no appointment of a teacher can be made in the institution without consent of the Management while in the other two modes of appointment the Management has little discretion. A teacher does not have a right of being transferred. The nature of the right of a retrenched employee and that of a dependent of an employee dying in harness to claim appointment is of a superior nature to the claim of a teacher seeking transfer. The analogy of the other two modes of appointment is, therefore, not apt. The object of appointment by transfer and that of appointment under the other modes is also different. The contention of Mr. Khare that operation of the provisions of each of the three modes of appointment namely, by transfer, by absorption of a retrenched employee and by compassionate appointment is to be harmonised with the provision of appointment of a candidate selected by the Commission in the same manner does not appear to have merit. From the interpretation we have made that an order of appointment by transfer cannot be made after the Commission has issued an advertisement, it does not follow that a similar restriction to the exercise of the process of appointment in respect of the other two modes would also have to be carved out, because the nature and object of the other appointments and the rights of the persons to be given the other appointments is different. We see no merit in the contention of Mr. Khare that a similar limitation as in the case of transfer, regarding the stage of the selection process for determining the availability of the other modes of recruitment would have to be adopted in the other cases too. However, the question as to whether in the case of appointment of retrenched employees and compassionate appointments, an appointment can be made after the stage of issuance of advertisement by the Commission, is not directly involved in this case. 13. However, the question as to whether in the case of appointment of retrenched employees and compassionate appointments, an appointment can be made after the stage of issuance of advertisement by the Commission, is not directly involved in this case. 13. As regards other submission made by learned Counsel for the appellant that the candidate selected by the Commission does not have an indefeasible right for appointment, the provisions of the Act and rules have already been referred to above from which it is clear that scheme of the 1998 Rules and the 1982 Act contains character of imperativeness and the management is obliged to offer appointment to a selected candidate. Therefore, in the Scheme of 1982 Act and 1998 Rules the cases under other enactments cited by Sri Khare on the point that a selected candidate does not have an indefeasible right to be given appointment, do not apply. In support of his contention that a selected candidate has no indefeasible right for appointment, reliance has been placed by the Counsel for the appellant upon : Shankarsan Dash v. Union of India, (1991) 3 SCC 47 ; Dr. K. Ramulu v. Dr. S. Surya Prakash Rao, 1997 SCC (L&S) 625; State of Uttaranchal v. Siddharth Srivastava, (2003) 9 SCC 336 and State of U.P. v. Raj Kumar Sharma, 2006 SCC (L&S) 565. In paragraph 7 of the reports in Shankarsan Dash it was held : “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquired an indefeasible right to be appointed, which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation of qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.” 14. In the passage above quoted the ordinary rule and its exception has been laid down. The ordinary rule is that the State is under no legal duty to fill up all or any of the vacancies and the exception is unless the relevant recruitment rules indicate otherwise. The provisions of the 1982 Act and 1998 Rules, we have already considered, make it amply clear that a selected candidate has a right to be given an appointment against a vacancy which was advertised. It has already been noticed that there is imperativeness in the scheme of the 1998 Rules and a time bound period has been provided within which various steps from the notification of the panel upto the appointment has been provided. The other three cases cited by the Counsel for the appellant also do not relate to the 1982 Act or the 1998 Rules. The Rules applicable in those cases do not confer any right upon the selected candidates to claim an appointment unlike the 1982 Act and the 1998 Rules. In fact, the cases cited have no application for another reason. What has been held in those cases is that the Government has a discretion to fill up or not to fill up a vacancy and a selected candidate cannot as a matter of right claim an appointment if the Government chooses not to fill up the vacancy. In the present case that is not the question involved because the vacancy has been filled up. The question is as to which of the two rules of appointment would apply. 15. In the present case that is not the question involved because the vacancy has been filled up. The question is as to which of the two rules of appointment would apply. 15. It was submitted by the appellant’s Counsel that under the 1998 Rules a right has been conferred upon two senior-most teachers of the college for being considered for appointment on the post of Principal and filling up the vacancy of the head of the institution by transfer necessarily defeats such right to consideration. In support of his contention the learned Counsel for the appellant relied upon Prem Singh Manav v. District Inspector of Schools, Meerut and others, 1991(18) A.L.R. 279; Dinesh Bahadur Singh v. State of U.P. and others, 2004 (4) AWC 2945; and Darshan Singh v. State of U.P. and others, 1996(28) ALR 495. In Manav’s case the question of filling up a vacancy from two competing modes of appointment, namely by transfer or by selection was not involved. The transferred candidate had joined the college several years before the dispute relating to appointment as Acting Principal arose and the question involved was about the seniority of the petitioner and the teacher transferred to the institution several years back. In Dinesh Bahadur Singh’s case the petitioner who was the senior-most lecturer in the College was aggrieved by the notification of the vacancy on the post of Principal and contended that the claim of the senior-most Lecturer to be appointed as Principal was akin to the right of promotion. The Court negative the contention that the right of the senior-most teacher to be considered for selection could be treated as a right to promotion. It was held that the post of Principal could be filled up by promotion. In para 3 of the Reports it has been observed that the post had not been advertised by the Board. In Darshan Singh’s case the facts have not been set out in the judgment. The Court held that if the post has been advertised but could not be filled up for a long time, appointment by transfer could not be excluded on the ground of the senior-most teacher losing his right of consideration for selection. The question of harmonization of the provisions to avoid conflict in the operation of Rules relating to appointment by transfer or by selection through Board was not considered in that case. The question of harmonization of the provisions to avoid conflict in the operation of Rules relating to appointment by transfer or by selection through Board was not considered in that case. The decisions cited do not hold anything, which may detract us from the view taken by us. We have already held that upto the stage of the computation of vacancies appointment by transfer can be made. In none of the cases cited was the transferred teacher posted to the institution after the advertisement of the vacancy by the Commission and his right of being appointed in preference to a selected candidate may have been upheld. 16. In the result, we find no merit in this appeal. It is accordingly, dismissed. ————