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Allahabad High Court · body

2009 DIGILAW 3612 (ALL)

RAJA RAM v. STATE OF U. P.

2009-11-30

ARUN TANDON

body2009
JUDGMENT Honble Arun Tandon, J.—Heard learned counsel for the petitioner Sri Umesh Narain Sharma, Senior Advocate assisted by Sri Chandan Sharma and Jai Prakash, Advocate, learned Chief Standing Counsel on behalf of the State Respondents, Sri R.P. Dubey, Advocate on behalf of the respondent Selection Board and Sri P.S. Baghel, Senior Advocate along with Sri Radhey Shyam Dwivedi, Sri Raj Kumar Tripathi, Sri N.K. Tripathi, Sri Ravidra Kumar, Sri Shyam Lal Yadav, Sri Kamlesh Shukla, Sri Bhupendra Nath, Sri B.P. Yadav, Sri Jitendra Kumar Pandey, Sri Shiv Ram Singh, Advocates as well as other advocates on behalf of the private respondents. 2. Facts giving rise to the present writ petition in short are as follows : In order to fill up 399 vacancies of teachers in trained graduates grade in the subject of Social Science in different recognized and aided High School and Intermediate institutions (hereinafter referred to as ‘Institutions’), the U.P. Secondary Education Services Selection Board (hereinafter referred to ‘Selection Board’) vide advertisement No. 1 of 2005 dated 17.9.2005 invited applications from eligible candidates. In pursuance thereof, the petitioners and large number of other candidates applied. After the result of the written examination were declared and before interview could take place, Dr. Ramesh Chandra Pandey and others preferred Writ Petition No. 43013 of 2006 complaining large scale illegalities and irregularities in written examinations so held. This Court vide its judgment dated 24.7.2007 reported in 2007 (7) ADJ 218 quashed the selections held and issued following directions : “48. In the totality of the circumstances, as have been noticed herein above, this Court records that the entire process of selection initiated in respect of appointment of teachers in the subject of Social Science by the U.P. Secondary Education Services Selection Board in pursuance to the Advertisement No. 1/2005 is replete with illegalities at every stage and has to be quashed as a whole. It is ordered accordingly and following directions are being issued. 1. The U.P. Secondary Education Services Selection Board get correct keys obtained afresh in respect of all the subjects of written examination held. For the purpose of obtaining the correct key answers, the Board shall forward the question papers to a team of experts to be appointed with the approval of the Vice Chancellor of the Allahabad University, which may comprise of Professors and Readers of the University of Allahabad (Central University). For the purpose of obtaining the correct key answers, the Board shall forward the question papers to a team of experts to be appointed with the approval of the Vice Chancellor of the Allahabad University, which may comprise of Professors and Readers of the University of Allahabad (Central University). After the correct key-answers are obtained from the team of experts, the same shall be feeded in the computer and the answer sheets of all the candidates, who have appeared in the written examination, shall be reevaluated. The Board shall thereafter declare the list of the successful candidates on the basis of merit so prepared category-wise for participation in interview. 2. The candidates, who have appeared from changed centres or who have been allotted new roll numbers by the Chairman/Secretary of the Board or were otherwise ineligible for appearance in the written examination, shall be excluded from the zone of consideration and their answer sheets shall not be evaluated as per the statement made by Sri U.N. Sharma, Counsel for the Board, as noticed in the order of the Court dated 10.10.2006 and dated 14.11.2006. 3. The number of candidates to be invited for interview shall be confirmed to the ratio fixed under sub-clause (6) of Rule 12 of the U.P. Secondary Education Services Selection Board Rules, 1998 and no candidate beyond the prescribed ratio shall be invited for interview. 4. Interview Board shall be constituted strictly in accordance with Rule 8 of the U.P. Secondary Education Services Selection Board Rules, 1998. Each member of the Interview Board shall allocate marks to the candidates concerned in respect of each indices separately as provided for under Rule 12(4) of the U.P. Secondary Education Services Selection Board Rules, 1998 i.e. 4% marks for general knowledge, 3% marks for personality test and 3% marks for ability of expression. The average of the marks awarded by the members of the Board shall be worked out and recorded. 5. The merit of the candidate shall be prepared after addition of the marks obtained in the written examination, interview and other special merit marks and final select list declared category-wise.” 3. The order was not subjected to any further challenge, it has become final. 4. 5. The merit of the candidate shall be prepared after addition of the marks obtained in the written examination, interview and other special merit marks and final select list declared category-wise.” 3. The order was not subjected to any further challenge, it has become final. 4. In pursuance of the order the Selection Board got the answer sheets of the candidates re-evaluated and declared fresh results whereunder only 620 candidates in the ratio of 5 candidates for 1 post (as against 128 vacancies only) were held eligible for being called for interview. Apprehending that remaining vacancies had been filled by resorting to the newly added Rule 13(5) to U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as ‘Rules, 1998’) brought on the Statute Book on 23.01.2007, this writ petition has been filed with the prayer to declare the aforesaid Rule 13(5) as ultra vires and a further mandate has been sought requiring the Selection Board to declare the result of the written examination in respect of all the 399 vacancies and to complete the process of selection accordingly. 5. In response to the notice issued, the Board in its counter-affidavit took a plea that out of the 399 posts advertised in 2005, only 128 were available for appointment and the remaining 271 vacancies had already been filled up by various other methods. 6. Since 399 posts were advertised and the same ought to be filled by the same process of selection only and not by other modes, a direction was issued on 11.09.2008 requiring the Board and the State to give the details as to how and when the remaining advertised posts were filled. 7. A meeting is said to be convened by the State Government which was attended by various District Inspector of Schools and other Education Officials, as also by the officers of the Selection Board. 7. A meeting is said to be convened by the State Government which was attended by various District Inspector of Schools and other Education Officials, as also by the officers of the Selection Board. On the basis of the information collected an affidavit has been filed and it has been stated therein as follows : (a) 69 posts which were advertised were still available to be filled by the selection process initiated (b) 88 posts have been filled through transfer (c) 11 posts have been filled by compensate appointment under dying in harness rules, (d) 10 posts have been filed by way of promotion, (e) 19 subject experts have been absorbed (f) 22 posts have been filled through adjustment by the Selection Board in exercise of powers under Rule 13(5) of Rules, 1998, (g) 66 posts have been filled by the Selection Board from candidates selected under earlier advertisements, (h) 5 posts were found to be occupied by persons under interim orders passed by this Court, (i) 9 posts were not available, because either the institutions were fictitious or they were not running, (j) 17 posts had been repeated twice, (k) requisition of 6 posts were actually sent for Science subject but by mistake it was advertised for Social Science and (l) for 28 posts no requisitions were received. 8. Apart from these factual disclosures, the details of the persons appointed and the provisions under which such adjustments had been made were not provided. On a further direction of the Court, it was admitted in the second supplementary counter-affidavit that 88 candidates had been appointed against the advertised vacancies although they had not applied in pursuance to the advertisement No. 1 of 2005. Again the details were lacking and it required yet another direction of this Court to the Board to come out with the details. In the third supplementary counter-affidavit filed it has been disclosed that 22+66 appointees were the candidates who applied and had been selected in pursuance of earlier advertisement. A fourth supplementary affidavit has been filed stating that 604 posts of Social Science have again been advertised through advertisement No. 1 of 2009, and 20.2.2009 is the last date fixed for receiving the applications. A fourth supplementary affidavit has been filed stating that 604 posts of Social Science have again been advertised through advertisement No. 1 of 2009, and 20.2.2009 is the last date fixed for receiving the applications. The Secretary of the Selection Board in this affidavit has also disclosed that 64 more vacancies have been notified to the Commission by different District Inspector of Schools but they do not form part of any advertisement. 9. In order to afford an opportunity to the candidates, who have been directed to be appointed against the vacancies which were subject-matter of advertisement No. 1 of 2005, for the reasons other than the notification of the select panel prepared in pursuance to the Advertisement No. 1 of 2005, the Writ Court vide order dated 2.2.2009 directed that notices be issued by the Secretary, Secondary Education as well as by the Selection Board to all such candidates who have been adjusted against the advertised vacancies (hereinafter referred to as adjusted candidates). They were directed to be supplied copy of the writ petition. An opportunity was afforded to such candidates to put in their appearance and to show cause qua the legality of their appointment in this writ petition. 10. In response to the order of the High Court, large number of impleadment applications along with affidavit have been filed by such adjusted candidates. Counter-affidavit has also been filed on behalf of the Selection Board. 11. From the applications, which have been filed by the adjusted candidates, and the counter filed by State and Board authorities, this Court finds that broadly following facts emerge : (a) Appointments have been made, against the advertised vacancies, by resorting to the provisions of the compassionate appointment. (b) Candidates selected in response to advertisement published earlier, namely advertisement No. 1 of 2004 etc. with reference to Rule 13(5) of the Rules 1998 have been appointed against vacancies of Advertisement No. 1 of 2005. (c) Subject Specialists working in the institutions have been adjusted against the advertised vacancies with reference to the Government Order dated 11th December 2006 read with Section 21-D(2), as added to the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as ‘1982 Act’). (d) Teachers of other institutions have been appointed by way of transfer under Regulation 55 to 62 of Chapter III of the regulations framed under the Intermediate Education Act against advertised vacancies. (d) Teachers of other institutions have been appointed by way of transfer under Regulation 55 to 62 of Chapter III of the regulations framed under the Intermediate Education Act against advertised vacancies. (e) Appointment have been made against advertised vacancies by promotion from primary section in terms of U.P. Secondary Education Services Section Board (Second Amendment) Rules, 2005, whereby Rule 10-C has been added providing for 25% posts to be filled by promotion. The amendment has been notified on 25th November, 2005. (f) In some applications/affidavits it has been stated that the candidates have been appointed against a different subject posts not covered by the advertisement No. 1 of 2005 and therefore there can be no dispute qua their appointments. 12. From the details furnished by the Selection Board qua adjustments made under Rule 13(5) of Rules, 1998 of the candidates selected in pursuance to earlier advertisements, it is clear that they could not be appointed in the allotted institutions for various reasons like (i) there was no vacancy (ii) the vacancy being reserved for a different category (iii) post having being filled by regularization of Ad-hoc appointee etc. 13. This Court may at the outset record that the reduction in the number of vacancies actually available vis-a-vis the total number advertised under Advertisement No. 1 of 2005, for the reasons that such number of posts were fictitious or qua non-running institutions or having been filled under the interim order of the Court or the posts have been repeated twice in the advertisement or the requisition received were not in respect of the subject of Social Science or that no requisition was received, the total whereof works out to 57 posts in all, cannot be faulted with. 14. This Court, therefore, holds that as against total post advertised under the advertisement No. 1 of 2005, the number of post actually available stand reduced by 57 and therefore the vacancies would work out to 342 only. 15. From the report supplied by the committee constituted by the Secretary, Madhyamik Shiksha, 69 posts are still available against the advertised vacancies of advertisement No. 1 of 2005 qua which selection process shall be completed. 16. 15. From the report supplied by the committee constituted by the Secretary, Madhyamik Shiksha, 69 posts are still available against the advertised vacancies of advertisement No. 1 of 2005 qua which selection process shall be completed. 16. The issues which need consideration by this Court are as follows : (a) As to whether under the provisions of Rule 13(5) of the 1998 Rules a candidate selected by the Board with reference to an earlier advertisement e.g. Advertisement No. 1 of 2004 and allocated to a particular institution, not being permitted to join there in for any reason, can be adjusted against a vacancy subject matter of the Advertisement No. 1 of 2005, or it confers a power upon the Board to adjust the selected and empanelled candidates under a particular advertisement against any other vacancy subject matter of same advertisement only. In the alternative as to whether Rule 13(5) of 1998 Rules is ultra vires the provisions of Sections 10 and 11 read with Section 16 of the 1982 Act and Article 14 of the Constitution of India. (b) As to whether appointment by transfer could be resorted to as per Regulations 55 to 62 of Chapter-III of the Regulations framed under the Intermediate Education Act for filling up the posts, which had already been advertised. (c) As to whether compassionate appointment could be made against the vacancies which were subject matter of advertisement No. 1 of 2005, specifically when the application/cause for compassionate appointment is subsequent to the advertisement No. 1 of 2005. (d) Whether subject experts could be absorbed against advertised vacancies under Section 21 E of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as Act, 1982). (e) Whether a vacancy earlier requisitioned for direct recruitment by the Committee of Management could be filed by promotion after its advertisement by Selection Board. 17. So far as the first issue is concerned, it is worthwhile to reproduce Rule 13(5) of the 1998 Rules, which is quoted below : “13(5) Where a candidate selected by the Board cold not join in an allocated institution due to non-availability of vacancy or for any other reason, the District Inspector of Schools shall recommend to the Board for the adjustment of such candidate against any other vacancy notified to the Board in any other institution. On receipt of the recommendation of the District Inspector of Schools the Board shall allocate such candidate to another institution in a vacancy notified to the Board.” 18. With reference to the use of word ‘vacancies notified’ it has been contended before this Court by the respondents, that a vacancy against which a candidate selected by the Board could be adjusted need not be the vacancy subject matter of same advertisement or of any advertisement. It is submitted that once a vacancy is notified, it is of no relevance as to whether it was subject matter of the same advertisement or not. Therefore, according to respondents a candidate selected with reference to earlier advertisements can be directed to be appointed against a vacancy subject matter of another advertisement or of no advertisement and what is to be seen is that vacancy has been notified to Selection Board. 19. For appreciating the contention so raised, it is worthwhile to refer to the procedure prescribed under U.P. Act No. 5 of 1982 (i.e. Act, 1982) before any recommendation can be made by the Selection Board against a vacancy in the institution. Section 10 provides for initiation of the procedure for selection by direct recruitment. The number of vacancies category-wise is to be determined by the management after application of reservation and to be intimated to the Selection Board in the manner prescribed. Section 11 provides a power to the board to notify the vacancies category-wise after applying reservation provided and to prepare a select panel of candidates with reference to particular vacancy so notified in the manner prescribed. The select panel is to be forwarded to the authority concerned in the prescribed manner and the authority in turn is required to forward the same to the management of the institution for appointment of the selected candidate. Section 16 of the Act provides that no appointment except on the recommendation of the Selection Board shall be made and any appointment contrary thereto would be void subject, however, to the provisions of Section 12, 18, 21(b), 21(c), 21(d), 21(e), 21(f), 33, 33(a), 33(b), 33(c), 33(d), 33(e) and 33(f). For retrenched employee provisions of Section 16-EE have been made applicable. Similarly, transfer has also been permitted under Section 16 (second proviso). 20. The procedure for intimation and determination of the vacancies category-wise and notification thereof has been provided by Rule 11 of the Rules, 1998. For retrenched employee provisions of Section 16-EE have been made applicable. Similarly, transfer has also been permitted under Section 16 (second proviso). 20. The procedure for intimation and determination of the vacancies category-wise and notification thereof has been provided by Rule 11 of the Rules, 1998. Procedure for direct recruitment has been provided under Rule 12 of the 1998 Rules as follows. 21. After written examination and adding of quality point marks, list of candidates entitled for being called for interview in the ratio of 1:5 is to be published. The marks received by the candidate in interview are then added to earlier marks and the board has to prepare a list for each category of post in order of merit as disclosed, after adding of the marks under various heads. At the time of interview for the post of teachers, the Board is obliged to show to the candidates the list of institutions where the advertised vacancies are available and the candidates are required to exercise their choice which cannot be more than 5 institutions in order of preference. Thereafter the Board is to prepare the select panel in accordance with the sub-rule (8) allocating the selected candidate to the institution as per the choice exercised, having regard to the merit secured by them. A candidate higher in merit is entitled to the institution of his choice in preference to a candidate lower in merit. This select panel of the teachers vacancy-wise is forwarded under Rule 13 to the District Inspector of Schools, who in turn is required to intimate the panel to the management of the institution for appointment. 22. From the aforesaid, it shall be amply clear that the power of the Board, to prepare a select panel and to recommend a candidate to the institution, is confined under the Act of 1982 read with Rule of 1998 to the vacancies which have been notified by the management and qua which an advertisement was published and selection held. Meaning thereby that the Board has no power to make a recommendation in respect of any vacancy which has not been so notified and advertised. 23. From a reading of the aforesaid provision, this Court has no hesitation to hold that the competence to recommend a candidate, for appointment as teacher in an institution, is confined to only those vacancies which have been advertised and not otherwise. 23. From a reading of the aforesaid provision, this Court has no hesitation to hold that the competence to recommend a candidate, for appointment as teacher in an institution, is confined to only those vacancies which have been advertised and not otherwise. The Board on its own has no power or jurisdiction to recommend a candidate to a recognized Intermediate College qua vacancies which have not been so notified to it and advertised. 24. The Court may clarify that the power of the Board to prepare the select panel and recommend a candidate in respect of a particular vacancy in an institution is in respect of vacancies which was advertised and was subject matter of selection under the provisions of Section 11 and 12 of the Act, 1982 with a further condition that the particular vacancy was intimated to the candidates during interview for exercising their choice. A candidate higher in merit has to be offered the vacancy of a particular institution in preference to a candidate lower in merit. What follows is that the Board has no competence to recommend a candidate to an institution against a vacancy which was not advertised and was not offered to the candidates for exercising their choice at the time of interview. Having reached such a conclusion the Court has to read Rule 13(5), as introduced vide Notification dated on 23rd January, 2007 to the Rules 1998, in harmony with Section 11 and 12 of the Act, 1982 and other provisions of Rules 1998. 25. Since the Board can recommend a candidate against a vacancy advertised and offered at the time of interview, it must necessarily be held that the power to be exercised under Rule 13(5) of 1998 Rules qua a candidate who could not be appointed in the institution for which he was empanelled can be adjusted only against a vacancy which was similarly advertised and offered at the time of interview in the same process of selection. 26. If a selected candidate is not appointed in the institution for a valid reason, it logically follows that the vacancy against which he was selected was in fact not available. Consequently his empanelment by Selection Board is rendered illegal. Such illegality in respect of a selection qua earlier advertisement cannot be cured by adjustment against a vacancy subject matter of another advertisement in respect of which the candidate was not the applicant. Consequently his empanelment by Selection Board is rendered illegal. Such illegality in respect of a selection qua earlier advertisement cannot be cured by adjustment against a vacancy subject matter of another advertisement in respect of which the candidate was not the applicant. 27. The Court may clarify that on the notification of the vacancies the Commission is obliged to apply reservation and to earmark the vacancies and to publish an advertisement accordingly. At the time of interview the Board is obliged to take into consideration the reserved category to which a candidate belongs and to offer him only those institutions qua which the vacancies have been advertised within the reserved category. The Board cannot offer a reserved vacancy to a candidate belonging to a general category at the first instance and any recommendation to the contrary may result in a situation whereby provision of the reservation itself would be defeated and may result in the empanelment itself being rendered illegal. 28. This Court need not repeat that selection and appointment against unadvertised vacancies would be violative of Article 14 of the Constitution of India. The Constitution Bench of the Hon’ble Supreme Court in the case of State of Karnataka v. Umadevi, (2006) 4 SCC 1 specifically paragraph 43 has held that the High Courts acting under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the Court, which the Court described as ‘litigious employment’ in the earlier part of the judgment he would not be entitled to any right to be absorbed or made permanent in the service. In paragraph-51 the Constitution Bench has held that the right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39 (a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. The obligation cast on the State under Article 39 (a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the Courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes of the constitutional scheme and the right of the numerous as against the few who are before the Court. 29. The Hon’ble Supreme Court in its latest judgment in the case of State of Bihar v. Upendra Narayan Singh and others, (2009) 5 SCC 65 has treated the continuance of illegal appointees with the help of the order of the Court as spoils system and has dealt with the same in great detail in paragraph 33 onwards. 30. It would be worthwhile to reproduce paragraph-32 of the said judgment, which reads as follows : 32. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoils system which prevailed in America in the 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the Court and wait for justice for years together.” 31. The Court may also draw support from the judgment of the Hon’ble Supreme Court reported in 1998 (3) SCC 45 , wherein interpreting the provisions of Section 13(4) of the U.P. Higher Education Services Selection Board Act, 1980, which reads as follows : “13(4) Where a vacancy occurs due to death, resignation or otherwise during the period of validity of the list referred to in sub-section (2) and such vacancy has not been notified to the Commission under sub-section (3) of Section 12, the Director may intimate to the management the name of a candidate from such list for appointment in such vacancy.” the Hon’ble Supreme Court has held that such power of intimation of the new candidate by the Director cannot be exercised in respect of a vacancy which has arisen subsequently and has not been advertised. The relevant portion of the judgment is quoted below : “16. Of course, the filling of vacancies under sub-section (4) of Section 13 on the vacancies already advertised arises only in case the person does not join or on account of death or resignation of person after joining, becomes invalid or such unforeseen circumstances. In other words, all the circumstances have to be within the vacancies already advertised and not beyond it. The sphere of sub-section (4) of Section 13 is within the vacancies for which the Commission took interview or the examination, as the case may be, under sub-section (1) of Section 13.” 32. In view of the aforesaid, this Court holds that for saving the Rule 13(5) of the 1998 Rules from being declared ultra vires of Sections 10 and 11 read with Section 16 of the 1982 Act and Article 14 of the Constitution of India it has necessarily to read the provisions of Rule 13(5) in harmony with said provisions and it is held that the Selection Board can recommend a selected candidate to an other institution only against vacancy subject matter of same advertisement against which candidates have been selected. 33. What legally follows is that a candidates selected in pursuance of any earlier advertisement cannot be adjusted against any vacancy subject matter of subsequent advertisement nor the number of vacancies advertised can be said to be filled or occupied on the strength of such illegal adjustment. 33. What legally follows is that a candidates selected in pursuance of any earlier advertisement cannot be adjusted against any vacancy subject matter of subsequent advertisement nor the number of vacancies advertised can be said to be filled or occupied on the strength of such illegal adjustment. It is needless to emphasis that mere selection confers no right, as has been held repeatedly by the Hon’ble Supreme Court. Reference- Judgment of the Hon’ble Supreme Court in the case of State of U.P. and others v. Rajkumar Sharma and others, (2006) 3 SCC 330 , wherein it has been held that mere inclusion of the name in the select list, even if some of the vacancies remain unfilled, confers no right to claim appointment. 34. This Court holds that the Board cannot be permitted to recommend a candidate to an institution the vacancy whereof had been notified but was not advertised/offered to the candidates during interview. 35. So far as the second issue qua appointment by way of transfer of a teacher against advertised vacancy is concerned, a Division Bench of this Court in the case of Smt. Amita Sinha v. State of U.P. and others, 2008(4) ESC 2799 (All)(DB) has held that once the process of selection by direct recruitment has begun by issuance of an advertisement inviting applications, the same cannot be filled by transfer. Hence in view of the said Division Bench Judgment, appointments made by transfer against an advertised vacancy of Advertisement No. 1 of 2005 is rendered illegal and of no consequence. 36. So far as the issue of compassionate appointment on the advertised posts of assistant teacher in the facts of the present case is concerned, this Court finds that the vacancies were advertised as early as in the year 2005. It is not the case of any of the parties that any application for compassionate appointment, on the date the requisition was sent, was pending. There is no right in any compassionate applicant to be appointed against any particular post. With reference to the number of vacancies requisitioned reservation has to be applied and it is on that basis the entire procedure for the selection is initiated by the Selection Board. There is no right in any compassionate applicant to be appointed against any particular post. With reference to the number of vacancies requisitioned reservation has to be applied and it is on that basis the entire procedure for the selection is initiated by the Selection Board. The process so initiated cannot be hampered by permitting the advertised vacancies being reduced by offering compassionate appointment, as the same may result in frustration of the entire reservation calculated as also the selections. This Court holds that once the vacancy has been requisitioned by the institution for direct recruitment and it has been advertised under the provisions of the 1982 Act, compassionate appointment against advertised posts stands excluded on the same principle as that applies to the case of transfer and for the same reasons this Court holds that no compassionate appointment against a post can be resorted once the vacancy has been requisitioned for direct recruitment and advertised by the Selection Board. 37. With regard to the absorption of Subject Experts against advertised vacancies of Advertisement No. 1 of 2005 the Court finds that amendment has been provided vide Section 21 (E), which was added to the Act, 1982 vide U.P. Act No. 37 of 2006. Such amendment in the Act, which is prospective in nature, will not in any way effect the process of selection already initiated under Advertisement No. 1 of 2005. It is more so necessary in the facts of this case as the judgment and order of the Court dated 24.7.2007 passed in Writ Petition No. 43013 of 2006 required the Selection Board to complete the process of selection in respect of all advertised vacancies from the stage it had gone wrong and said judgment, as noted above, has become final. The scope of adjustment of Subject Expert against advertised vacancies of Advertisement No. 1 of 2005 is, therefore, held to be illegal. It may also be clarified that only the vacancies which come into existence subsequent to introduction of Section 21(E) to the Act 1982 can be subject matter of consideration for the Subject Experts to be adjusted. The process of selection started under Advertisement No. 1 of 2005 has to be completed with reference to the provisions as were applicable on the date the process of selection was so initiated with the publication of advertisement. The process of selection started under Advertisement No. 1 of 2005 has to be completed with reference to the provisions as were applicable on the date the process of selection was so initiated with the publication of advertisement. Any subsequent amendments in the statutory provisions will not effect the process so initiated. 38. It is settled law that the process of selection once initiated has to be completed with reference to the statutory provisions, which were applicable on the date of initiation of the process of selection and any subsequent amendment in the statutory provisions will not affect the process so initiated. Reference be had to the judgment of the Hon’ble Supreme Court in the case of Secretary, A.P. Public Service Commission v. B. Swapana and others, 2005(2) ESC 247. 39. So far as the advertised posts being filled by way of promotion under Rule 10-C of the U.P. Secondary Education Services Selection Board (Second Amendment) Rules, 2005 is concerned, this Court may record that the amendment has been notified on 25th November, 2005. The amendment is prospective in nature and will not affect the vacancies which have been advertised, inasmuch as it is settled law that selections are to be completed in accordance with the law as was applicable on the date. 40. This Court is of the opinion that the issue as to whether a vacancy falls within the quota for direct recruitment or promotion has to be determined with reference to the date of occurrence of vacancy. Since the vacancy subject matter of Advertisement No. 1 of 2005 was requisitioned by the Committee of Management for direct recruitment, it is to be presumed that the same was within the quota for direct recruitment, more so when no teacher came forward to claim promotion against the same by challenging the advertisement. The Committee of Management cannot subsequently fill such an advertised vacancy by promotion. 41. Counsel for the respondent has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of I.J. Divakar and others v. Government of Andhra Pradesh and another, AIR 1982 SC 1555 . 42. In the opinion of the Court said judgment is clearly distinguishable in the facts of the present case, inasmuch as the Hon’ble Supreme Court in the aforesaid case has held that the regularization was permissible under the rules applicable. 42. In the opinion of the Court said judgment is clearly distinguishable in the facts of the present case, inasmuch as the Hon’ble Supreme Court in the aforesaid case has held that the regularization was permissible under the rules applicable. In the facts of the present case the Court has come to a conclusion otherwise. Accordingly, writ petitions are allowed. 43. This Court, therefore, holds that filling up of the advertised vacancies subject matter of advertisement No. 1 of 2005 (a) by adjustment, in exercise of powers under Rule 13(5) of 1998 Rules, of candidates selected in pursuance to the earlier advertisement, (b) by transfer of candidates from other institutions against advertised vacancies (c) by compassionate appointment (d) by promotion and (e) by absorption of subject experts under Section 21-E is patently illegal and in teeth of the provisions of the Act, 1982 and the Rules framed thereunder. 44. This Court holds that all such kind of appointments against advertised vacancies are illegal and appropriate action be taken by the authorities accordingly within four weeks from the date a certified copy of this order is filed before the Secretary, Secondary Education U.P. Government, Lucknow. 45. The Selection Board shall complete the process of selection in respect of all the advertised vacancies minus the 57 posts which were wrongly advertised, within four months by inviting necessary number candidates, with reference to their merit in written examination and quality point marks, for interview and by declaring the final results thereafter within a period of two month from the date a certified copy of this order is filed before it. 46. Writ petitions are allowed. Let respondents take appropriate action within the time specified. ————