1. These writ petitions (detailed in Appendix 9 of this judgment) challenge selection of Heads of private High Schools (10th Class) and Intermediate Colleges (12th Class) (referred to as Institutions in this judgment). These selections are being made by U.P Secondary Education Services Selection Board (the Board) under U.P Secondary Education Services Selection Board Act 1982 and the rules framed therein. These petitions raise common grounds about validity of the cut off date, validity of the Rules, advertisements inviting application, process of selection, award of marks, and the reservation policy. This Judgment decides all writ petitions mentioned in Appendix 9 of this judgment1.

2. In some cases selected candidates have already joined. In other cases selections could not be held as the selection process was stayed. In most cases selections have been held, but selected candidates could not join due to interm orders. Adhocism is still continuing; damaging educational institutions, the building blocks of our future. To a great extent this has been contributed by the UP Secondary Education Service Selection Board Rules, 1998 (the Rules). They are examples of how rules may not be made. What should be done that this may not happen again? Perhaps we may give more importance to ‘Symbolic Logic’ and ‘Plain Language’ than we have done so far. I have explained this in greater details at the end of my judgment under heading ‘FEW OBSERVATIONS AND RECOMMENDATIONS’ and sub-heading ‘Symbolic logic and Plain Language’ and ‘Restatements of law’ (Paragraphs Nos. 124 to 128). And made recommendations for Including these two topics as part of training.

WORDS AND DEFINITIONS

3. In this judgment, I will be using the words:

(i) ‘the Principal Act’ to mean the U.P Secondary Education Services Commission and Selection Board Act, 1982 as it was originally enacted.

(ii) ‘the Act’ to mean the Principal Act as amended from time to time as it stood at that point of time, (Relevant sections of the Act are reproduced in Appendix-1 of this judgment).

(iii) ‘the Rules’ to mean the UP Secondary Education Service Selection Board Rules, 1998 under which avertisements and selections have been held. (Relevant rules are reproduced in the Appendix-2 of this Judgment).

(iv) ‘the Reservation Act’ to mean UP Public Services (Reservations for Scheduled Castes, Scheduled Tribes and other Backward classes) Act, 1994 (Relevant parts of Sections 2 and 3 of the Reservation Act are appended as Appendix-6 to this judgment).

(v) ‘the Salaries Act’ to mean UP High School and Intermediate Colleges (Payment of Salary of Teachers and Other Employees) Act, 1971.

(vi) ‘the Intermediate Act’ to mean UP Intermediate Education Act, 1921.

(vii) ‘Appendix A of intermediate Regulations’ to mean Appendix A appended to regulation 1 of Chapter II of the regulations framed under the Intermediate Act prescribing essential (minimum) qualifications for heads and teachers in educational institutions (Relevant part of Appendix-A is reproduced in Appendlx-4 of this Judgment).

(viii) ‘institution of mean private educational institution imparting education up to High School (10th Class) or Intermediate College (12th class).

(ix) ‘head’ to mean headmaster of a High School (10th class) or Principal of an Intermediate College (12 class)

(x) ‘teacher’ to mean teacher only. It excludes ‘head’ in this Judgment. Teacher has been defined under the Act as including head. This has caused confusion in interpreting the Act. I have purposely avoided this definition.

(xi) ‘the advertisements’ to mean advertisements published on 12th August, 1998 and 24th December, 1999 challenged in these writ petition.

(xii) ‘assistant teacher’ to mean teacher in ‘trained graduate grade’ teaching class IX and X.

(xiii) ‘the direct applicants’ to mean those candidates who apply in pursuance of advertisements for post of heads.

(xiv) ‘two senior most teachers’ to mean those teachers whose names are to be considered for head of that institution without applying.

DETAILS OF THE WRIT PETITIONS AND APPENDIXES

4. The details of the appendixes to this judgment and the writ petitions are as follows:

* Appendix-1 : The relevant sections of UP Secondary Education Services Commission and Selection Board Act, 1982 (the Act), as amended time to time unless specifically indicated.

* Appendix-2 : The relevant rules of UP Secondary Services Selection Board Rules, 1998 (the Rules)

* Appendix-3 : Appendix B, C and D of the Rules in Hindi.

* Appendix-4 : Appendix B, C and D of the Rules of English (before 17th January 2001).

* Appendix-5 : The relevant part of regulations 1 Chapter II and Appendix A of the Intermediate Regulations.

* Appendix-6 : Relevant paragraphs of the guidelines issued by the Board.

* Appendix-7 : Relevant parts of Sections 2 and 3 of the Reservation Act.

* Appendix-8 : Article 348 of the Constitution of India.

* Appendix-9 : The details of the writ petitions that are being decided by this judgment.

* Appendix-10 : The details of the writ petitions where petitioners were appointed not later than 6-8-1993 (i.e who may claim regularisation under the Act if they satisfy other conditions).

* Appendix-11 : The details of the writ petitions where petitioners were appointed after 6-8-1993 but before 20th of April 1998 (i.e those writ petitions in which cut-off date can be challenged).

* Appendix-12 : The details of the writ petitions where vacancies arose prior to the enforcement of the Rules (i.e where it is claimed that selection be held under the earlier rules).

FACTS AND LEGISLATIVE HISTORY

5. Selections of the Heads of educational institutions and teachers were earlier held under U.P Intermediate Education Act, 1921 (the Intermediate Act). This Act was amended from time to time but in substance selections were made by a selection committee constituted by the committee of management managing that institution. For some time appointments could be made only after prior approval of the concerned District Inspector of Schools (the DIOS) and thereafter on the basis of recommendations made by a selection committee consisting of experts nominated by the Educational Authorities. Regulations are also framed under the intermedicate Act. Essential (Minimum) qualifications for heads and teachers in an institution are prescribed under Appendix A of the regulation 1 of Chapter II framed under the Intermediate Act (Appendix A of the Intermediate Regulations) (Appendix-3). The aforesaid process of selection continued till provisions of the Intermediate Act regarding selection were replaced by an Ordinance, then by UP Secondary Education Services Commission and Selection Board Act 1982 (the Principal Act). Selections were entrusted to a commission un der the Principal Act. This was done so that good candidates may be appointed. The State Government also framed some rules in 1983, which are not relevant as present impugned selections have been held under the UP Secondary Education Service Selection Board Rules, 1998 (the Rules).

6. The Principal Act has been amended on few occasions but five amendments are relevant here. They were, first introduced by Ordinances and then replaced by the Acts. For convenience I am indicating last five amending Acts only.

(i) The UP Secondary Education Services Commission and Selection Boards (Amendment) Act, 1985 (UP Act No. 19 of 1985) the 1985 amendment Act).

(ii) The Secondary Education Service Commission and Selection Boards Amendment Act 1991 (UP Act No. 26 of 1991) (the 1991 amendment Act).

(iii) The UP Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992 (UP Act 1 of 1993) (the 1993 amendment Act).

(iv) The UP Secondary Education Services Selection Boards (Amendment) Act, 1995 (UP Act 5 of 1995) (the 1995-Amendment Act)

(v) UP Secondary Education Services Commission (Amendment) Act 1998 (UP Act No. 25 of 1998 (the 1998-amendment Act).

7. The Principal Act envisaged a commission for making appointments of teachers and heads of institutions. The 1985-amendment Act, amongst the others, added Section 31-A regularising certain appointments. The 1991-amendment Act merely amended Section 33-A regularising some more appointments. It was enforced from 7th August, 1993. The 1993-amendment Act envisaged four regional selection Boards for making selections. It also introduced Section 33-B regularising some more appointments. However, before any selections could be held the Act was again amended by the 1995-amendment Act. It was enforced from 28-12-1994. By the 1995-amendment Act, four regional selection boards established by the 1993-amendment Act were abolished and one commission for the entire state was established.

8. The Act was again amended by the 1998-amendment Act. It was enforced from 20th April, 1998. By this amendment, selection process has been entrusted to Uttar Pradesh Secondary Education Services Board (the Board) in place of the commission. The 1998-amendment Act has introduced Section 33-C. It regularises teachers and heads, who were appointed on certain conditions, not later than 6-8-1993 i.e before 7-8-1993 the date of enforcement of the 1993-amendment Act. Most of the petitioners are ad-hoc heads appointed between 6-8-1993 to 20-4-1998. They have challenged the cut off-date. They claim that all teachers and heads appointed prior to enforcement of the 1998-amendment Act may be regularised. During pendency of these writ petitions an Ordinance number 19 of 2000 was promulgated amending Section 16 and 18. This ordinance has added Section 33-F, regularising some more appointments, but cut-off date has remained the same.

9. The State Government also framed rules known as UP Secondary Education Services Selection Board Rules (the Rules). The Rules were framed and published in official gazette on 8th August, 1998 and came into force on that date. The Board, in pursuance of the Act as amended by the 1998-amendment Act and the Rules, published advertisements on 12th August, 1998 and 24th December, 1999 (the advertisements) inviting applications for direct recruitment to the posts of teachers and Heads of institutions. The advertisements relating to the heads have been challenged on the ground that these advertisements exclude candidates entitled to be considered for selection and permit candidates not so entitled. This was on the ground that advertisements were not in conformity with the Appendix A of the Intermediate Regulations.2

10. The advertisement for heads of the institutions, unlike teachers. Is region-wise. The candidates are considered region-wise and results are also declared region-wse. This region-wise advertisement, consideration, and selection is challenged as discriminatory and violative of Articles 14 and 16 of the Constitution.

11. Different sub-rules of the Rule 12 state how marks are to be allocated. The validity of sub-rule (5) of the Rule 12 (Rule 12(5)) has been challenged on the ground that it is unreasonable and discriminatroy as it gives undue importance to educational qualifications and no importance to the service records. Petitioners also challenge the process of allocation of marks and selection process.

12. There is reservation for backward classes on the posts of teachers but no reservation for backward classes on the posts of heads. This is also challenged in these writ petitions. According to the petitioners there should be reservation for backward classes on the post of heads also.

13. Vacancies for the head of institutions are filled by direct recruitment. Applications are invited for the posts by means of wide publicity. Any candidate having minimum qualifications can apply. He has to indicate choice of the institution. Apart from these candidates applying directly (the direct applicants), the Board is also required to consider the names of two senior most teachers of the institution. These two senior-most teachers need not apply but they are considered for the institution where they are the two senior-most teachers. In case they wish to be considered for another institution then they have to apply like any other direct applicant Most of the writ petitions are on behalf of one of the two senior most teachers who by virtue of their seniority are officiating as ad-hoc head of the institution.

POINTS FOR DETERMINATION

14. I have heard counsel for the parties, Dr. R.G Padia and Sri Ashok Khare led submissions on behalf of the petitioners. The other counsel for the petitioners adopted their submissions. Sri RP Goel Advocate General appeared for the State of U.P, educational authorities as well as on behalf of the Board. Sri YS Bohra, standing counsel, and Sri Anil Kumar and Sri. RP Dube counsel for the Board assisted him.3

15. Following points arise for determination in these cases.

(i) Reservation for backward classes is provided for the post of teachers but not for the post of heads of the institutions. Should there be reservation for the post of heads of the Institutions? Do heads of institutions form one cadre?

(ii) The 1998-amendment Act has substituted new Section 33-C. It regularises services of ad-hoc teachers and heads appointed not later than 6th August, 1993 (or prior to 7-8-1993, the date of the 1993 amendment Act) on certain conditions, is this cut-off date arbitrary or discriminatory? is it liable to be struck down? Should this cut-off date be shifted to 20th April, 1998 the date of enforcement of the 1998-amendment Act?

(iii) What is minimum qualification for appointment as a head of an institution? is it the one defined in Append be A of the Intermediate Regulations or has it been modified by the note to the Rule 12(5). Minimum qualification of experience prescribed in the two advertisements inviting applications are in conformity with note to the Rule 12(5) but not with Appendix A of the Intermediate regulations. Are these advertisements legal?

(iv) Should the vacancies be marked separately for every recruitment year and be filed separately?

(v) Which law should apply for Filling up the vacancies; the one applicable at the time of occurrence of vacancies; or the one applicable at the time of advertisement; or the one at the time of Selection.

(vi) The Board has taken the total marks to be allotted under different heads as 500 and has allocated 10% of the same namely 50 marks for interview. Was it permissible for the Board to begin with total of 500 marks? Should the Board allot marks from 100 so that interview can only be of 10 marks?

(vii) rule 12(5)(ii) of the Rules states that 20% of marks are to be given for having experience more than the required experience. Does it give any Importance to service record? Is it illegal, as no importance has been given to service records?

(viii) The Board has adopted different procedure for allotting 20% under rule 12(5)(ii) between the direct applicants and the two senior-most teachers. It has seen the service records of the two senior-most teachers, but not of the direct applicants. This has been done under the guidelines issued by the Board. Are these guidelines valid? Was this procedure permissible? ‘

(ix) Rule 12(5) of the Rules explains how marks are to be allotted. 74% marks can be given on academic qualifications. Are they unreasonable on the ground that they give undue emphasis on academic qualifications?

(x) Rule 12(4) explains how marks are to be allotted while selecting teachers. It allocates only 4% marks for doctorate degree in contrast to 10% marks for doctorate degree and further 4% marks for published research (total 14%) for the heads. Is Rule 12(5) illegal on this account?

(xi) Many candidates have two post graduate degrees. Has the Board given benefit of two postgraduate degrees to such candidates?

(xii) Selection for head of institution has been made region-wise. The result is also so declared. Is it permissible to make selection region-wise?

(xiii) Rule 12(5)(1) states that 60% marks are reserved on quality points to be calculated on the basis of Appendix D of the Rules. The total marks were 500 and as such 300 marks could be allotted on quality points. The maximum marks that can be allotted under Appendix D of the Rule are less than 300. Has the Board rightly up-scaled the quality points marks to 300?

(xiv) The Rules have been framed in Hindi. Their authoritative translation has also been published. At the time of selection, there was inconsistency between Appendices of the two versions for calculating quality point marks have been allotted according to Hindi version. Was it correct? Which version should have prevailed, the Hindi one or the English one?

(xv) During arguments of these writ petitions, the State Government notified a ‘SHUDHI PATRA’ corrigendum’ dated 17-1-2001 correcting the English version of Appendices of the Rules. Now the English version is same as the Hindi one. Has the State Government power to do so? Now, can the results be set aside?

POINT NO. 1 : HEAD OF THE INSTITUTION NO RESERVATION

16. Up Public Service (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward classes) Act, 1994 (the Reservation Act) provides reservation in favour of scheduled cates (SC),. scheduled tribes (ST) and other backward classes (OBC), Section 2(C) (Appendix-6) of the Reservation Act defines ‘public services and posts’. It includes services and posts in educational institutions that receive grant in aid from the State Government. In the present case appointments are being made in institutions which receive grant-in-aid from the State Government. Reservation is provided under Section 3 of the Reservation Act and it applies to the posts in these institutions. In fact reservation is provided on the posts of teachers but not on the posts of heads of these institutions. Is it illegal? Should selection or the advertisement be quashed on this ground?

17. Counsel for the petitioners submit that the post of heads of all institutions form one cadre and reservation should be applied on the basis of a decision reported in State of U.P v. Dr. Dinanath Shukla, (1997) 9 SCC 662 : (AIR 1997 SC 1095).

18. The Advocate General submits that:

* Posts of heads of different institutions are single posts;

* They do not form one cadre; and

* No reservation can be provided in view of PG Chandigarh case, Post Graduate Institute of Medical Education and Research Chandigarh v. Faculty Association, (1998) 3 JT 223 : ((1998) 4 SCC 1 : AIR 1998 SC 1767).

19. According to him it is for this reason reservation has been provided for teachers institution-wise for lecturers and group-wise for assistant teachers but not for the heads of the institutions.

Dina Nath Case

20. The Apex Court in Dina Nath case was concerned with reservation on the posts of lecturers. Readers, and Professors of a university. The employer in Dina Nath case for these posts was one namely Allahabad University. The Apex Court held (paragraph 30) that if there is one post of professor in a subject in the University then all single posts of professors in different subjects may be clubbed. This was to be done as the Apex court in Dina Nath case further held that all posts in the category of professors (even if in different subjects) are in one cadre as they carry same pay scale. It was similarly so held for post of Readers and lecturers. According to the petitioners this law should apply here and reservation should be provided as all posts of heads even in different institutions are in one cadre. Is Dina Nath case still a good law? Do heads of different institutions fall in one cadre? What does the word ‘cadre’ mean?

Chakradhar case

21. The Apex Court in Chakradhar Paswan v. State of Bihar, (1988) 2 SCC 214 : AIR 1988 SC 959 had occasion to consider the meaning of the word ‘cadre’ it was held.

‘In service jurisprudence, the term “cadre” has a definite legal connotation. In the legal sense, the word “cadre” as not synonymous with “service”. Fundamental Rule 9(4) defines the word “cadre” is to mean the strength of a service or part of a service sanctioned as a separate unit. The post of the Director which is the highest post in the Directorate, is carried on a higher grade or scale while the posts of Deputy Directors are borne in a lower grade or scale and therefore, constitute two distinct cadres or grades.

In the para-medical system the three posts of Deputy Directors pertain to three distinct systems and therefore, each of them is an isolated post by itself. The same principle should, we think, as in the case of the Director, apply.

To Illustrate, Professors in medical colleges are carried on the same grade or scale of pay but the posts of Professor of Cardiology. Professor of Surgery. Professor of Gynaecology pertain to disciplines and therefore each is an isolated post.’

(italics mine).

22. P.G Chandigarh case, ((1998) 4 SCC 1 : AIR 1998 SC 1767) approves Chakradhar case, ((1988) 2 SCC 214 : AIR 1988 SC 959), Dina Nath case, ((1997) 9 SCC 662 : AIR 1997 SC 1095) Not Good Law.

23. The Apex Court in PG Chandigarh had occasion to review the entire law in this respect. The Apex Court explained that reservation cannot be more than 50% as Article 15(4) and 36(4) are enabling provisions and making reservation for more than 50% would infringe right of equality of other citizens4. The Apex Court further explained that if reservation was made on a single post then it would amount to 100% reservation and will infringe equality clause.5 The Apex Cort further held that Chakradhar case was rightly decided. In the words of Apex Court (at p. 1781 of AIR).

‘We therefore, approve the view taken in Chakradhar's case, ((1988) 2 SCC 214 : AIR 1988 SC 959) that there cannot be any reservation in a single post cadre and we do not approve the reasoning in Madhav's case, ((1997) 2 SCC 332 : AIR 1997 SC 3074). Brij Lal Thakur's case, ((1997) 4 SCC 278 : AIR 1997 SC 2101) and Bageswari Prasad's case, (1995 Supp (1) SCC 432) upholding reservation in a single post cadre either directly or by device of rotation of roster point.’

24. Dina Nath case stands overruled by the PG Chandigarh case and is not a good law. No reliance can be placed upon the same. But do the teachers and heads of different institutions together are in one cadre or different cadres? How is reservation applied under the Act for the post of teachers?

25. Reservation Under the Act And the Rules.

26. Section 10 of the Act is headed as (procedure of Selection by direct recruitment). Under Section 10(1) of the Act the committee of management managing an institution is required to determine number of vacancies existing or are likely to fall vacant in their institution during the year of recruitment. They are also required to determine number of vacancies — among the teachers only — that are reserved for the candidates belonging to scheduled caste, scheduled tribes and other backward classes of the citizens in accordance with Reservation Act and notify them to the Board through the DIOS.

27. Section 10 of the Act provides reservation amongst the teachers of an institution. It does not provide any reservation for heads of institutions. Among the teachers also, there is no reservation on total number of vacancies of all institutions. This is further clarified in Rule 11 of the Rules, which is headed as ‘Determination and notification of vacancies’, Under rule 11(2)(a) of the Rules, management of an institution is to send the number of vacancies. The DIOS is to verify from the record and prepare the statement of vacancies subject-wise in the grade of lecturer and group-wise in respect of trained graduate grade teachers (assistant teachers). Explanation to rule 11(2)(a) also explains meaning of the word ‘group’. The posts of lecturers in an institution are sanctioned subject-wise and the reservation in the lecturer grade is made subject-wise in that institution. In fact this is the only way it could be done in view of PG Chandigarh case. The posts of assistant teachers are not sanctioned subject-wise. Reservation on these posts is being done group-wise for an institution. No reservation is provided for the posts of heads under the Act and the Rules. Posts of teachers and heads of different institutions are not being clubbed together.

28. The counsels for the petitioners submitted that the State Government is employer of teachers and heads of institutions and they fall in one cadre. According to them this is for following reasons.

(i) The government grants aids to the institutions,

(ii) It makes selections of teachers and heads through one agency namely the Board,

(iii) A teacher can be transferred from one institution to another, And

(iv) The court should lift the veil see factual position.

Employers Are Different Societies

29. Institutions are established and managed by the societies registered under the Societies Registration Act. They are recognised under Intermediate Education Act on fulfilment of certain conditions laid down under the Education Manual U.P One of the conditions is that it should have sufficient endowment for running an Institution. This endowment is managed by a committee of management elected amongst the members of the society under a scheme of administration. The committee of management also has to ensure proper utilisation of grants and, income (Chapter I, Regulation 13 (iv) to (vi) of the Intermediate Regulations). An Institution receives money from students towards boys’ fund. This is under control of the head of that Institution (Chapter 1, Regulation 10 (iii) of Intermediate Regulations).

30. The State Government has undertaken to pay the salaries of the teachers under U.P High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971 (the salaries Act) but the State Government does not make the entire payment. Under the Salaries Act, Institutions are required to open account in a bank. They are required to deposit 80% or higher percentage of the fees (in case it is so directed by the State Government) in that account under Section 5(2) of the of Salaries Act. The State Government contributes remaining amount by grant-in-aid in that account. Salaries are paid from this account. The entire salary is not paid by the State Government but is paid from the fees also.

31. It is correct that now the State Government through the Board (earlier Commission) is making appointments of heads and teachers, but this was done in order that better candidates may be appointed on these posts and not because the State Government is their employer6.

32. It is also correct that transfer can be made from one institution to another institution. But under regulations 55 to 61 of Chapter III of the Intermediate Regulations it can only be done with the consent of committees of management managing both institutions. If there is no consent then transfer cannot be made. The transferred teacher also becomes junior most teacher in the institution where he is transferred (Regulation 61(2)) of the Intermediate Regulations.

33. Different Committees of management manage day to day affairs of their institutions. They utilise and spend the grant. They start disciplinary proceedings against erring employees, teachers and heads. It is they who take decisions on punishment though it is required to be approved, so that they may not act arbitrarily. It is different societies and not the State Government who are employers of the teachers and the heads.7 Heads of Different Institution-Not one Cadre.

34. As explained, the State has itself treated each institution as different providing reservation for teachers only. Posts of lecturers in an institution are sanctioned subject-wise. Post of assistant teachers are generally sanctioned without specification of any subject. It was this reason that the State Government has provided, reservation in an institution subject-wise for lecturers, group-wise for assistant teachers, and no reservation among the heads of institutions. A group consists of similar subjects as explained in explanation to rule 11(2).

35. Lecturers in one subject in an institution are in one cadre. Assistant teachers in one group in an institution have been treated by the State in one cadre. And the heads of all institutions are neither in one cadre nor have been so treated by the State Government. All heads of different institutions have have different employers and are in different cadres. The state government has rightly not provided any reservation among the heads. Neither posts of all heads nor all posts of teachers in different institutions can be clubbed together. If they were one then it would have been violative of equality clause as explained in PG Chandigarh case, ((1998) 4 SCC 1 : AIR 1998 SC 1767) There is no illegality in not providing reservation on the posts of Heads of institutions.8

POINT No. 2 : CUT OFF DATE IS VALID

36. Sec. 33-C of the Act (Appendix-1) regularises appointments of teachers and heads appointed not later than 6-8-1993 in case they fulfil conditions mentioned in that section. I omit the conditions, as we are concerned here with the date only. A person in order to qualify has to be appointed between two dates. The earlier date of teachers is 14-5-1991 and for heads is 31-7-1988. This is not important as appointments prior to these dates have been regularised by Section 33-B (1)(a) of the 1992-amendment Act for the teachers.9 The important date is later one the candidate should be appointed ‘not later than 6 August 1993.’ This in fact means that a candidate should be appointed prior to 7-8-1993, the date of enforcement of 1993-amendment Act. Some of the petitioners were appointed teachers and heads before 7-8-1993. But most of the petitioners were appointed between 7-8-1993 (the date of enforcement of the 1993-amendment Act) and 20-4-1998 (the date of enforcement of 1998-amendment Act). Is this cut-off date of 6-8-1993 arbitrary, or discriminatory?

37. Counsel for the petitioners point out that there is no consistent policy for fixing cut off date for regularisations. They have brought to my notice following three occasions when teachers and heads were regularised.

(i) All teachers and heads appointed prior to date of enforcement of the 1985-amendment Act were regularised on fulfilling some conditions under Section 33-A as substituted by this amending Act (Appendix-1). It was enforced from 12th January 1985.

(ii) All teachers and heads appointed prior date of enforcement of the 1991-amendment Act were regularised on fulfilling some conditions under sub-section 1(A), 1(B) and 1(C) of Section 33-A as substituted by this amending Act (Appendix-1), It was enforced from 6-4-1991.

(iii) The 1993-amendment Act was enforced from 7-8-1993, It did not regularise all teachers appointed before enforcement of this Act but the LT grade teachers and Lecturer appointed on or before 14-5-1991 and the CT grade teachers appointed till 13-5-1989 were regularised under Section 31-B (Appendix-1).

38. The counsel for the petitioners submit that:

(i) There is no Justification for giving a gap of five years between the cut-off date namely 7th August 1993 and the date of enforcement of the 1998-amending Act namely 20th April 1998.

(ii) The gap is unreasonable as on the earlier two occasions services of teachers and heads were regularised before the enforcement of the amending Acts and on the third occasion the gap was a very short namely about 2 years. The present gap of about 5 years is unreasonable time.

(iii) There was no machinery to hold selections from 30th July, 1991 till 9th May, 1995 then again from 7th April, 1997 to 30th July, 1998 and in case any one has been appointed as ad-hoc teacher or head during that period, then they should be regularised.

39. Cut-off Date-When Can Be Challenged?

40. The Apex court has explained, when can a cut-off date can be challenged. A cut off date may be set aside if it is arbitrary and can be said to have been picked out from a hat. But a chosen cut-off date is as good as any and it can not be interfered with unless it is very wide of any reasonable mark. A date can not always be dubbed as Arbitrary even if no particular reason is forthcoming in the choice, unless it is ca pricious or whimsical.10 Let us see if it is so.

Cut-Off Date— Justifcation

41. According to the State, the cut-off date i.e 6-8-1993 has been fixed for the reason that section 16 of the Act as substituted by the 1993-amendment Act was enforced from 7-8-1993. It prohibited appointments of all teachers and heads except on recommendations of the Commission. This section as introduced by the 1993- amendment Act was subject to many sections (including Section 33) but not Section 18 that permitted ad-hoc appointments by the Management. Is this date arbitrary or whimsical? Is it wide off any reasonable mark?

42. Section 16 of the Act prohibits appointment by management except on recommendation of the commission/Board Prior to enforcement of 1993-amendment Act Section 16 was subject to, apart from other section. Section 16. It was no longer subject to Section 18. The 1993-amendment Act also deleted Section 18 that permitted ad-hoc appointments. All sections of the 1993 amendment Act were enforced from 7-8-1993 except Section 13 that deleted Section 18. It countined in the statute book though Section 16, which prohibited appointment, was no longer subject to section 18. The 1995-amendment Act has amended Section 16 and reintroduced substituted Section 18. Section 16 now is subject to Section 18. But during enforcement of 1993 amendment Act there was confusion whether ad-hoc appointments on substantive posts or short-term appointments could be made or not. And if they could be made, then what would be their procedure.

43. There was conflict of decisions of this court regarding ad-hoc and short term appointments. The matter was referred to a full bench. This court in full bench decision of Radha Raizada v. Committee of Management, (1994) 3 UPLBEC 1551 explained how appointments at three different stages namely — first stage from 31-7-1981 to 13-7-1992; second stage from 14-7-1992 to 6-8-1993; and third stage from 7-8-1993 till date of decision in Radha Raizada case— could be made. There was difference of opinion among the Judges of the full Bench.

44. The State legislature has taken 7-8-1993 as the cut-off date as section 16 as substituted by the 1993 amendment Act (by which reference to 18 was dropped) was enforced. After the date, appointments could be made on the post of teachers and heads on the recommendation of the Commission only subject to some sections but not of Section 18 that permitted ad-hoc appointments. It is correct that the Section 13 of the 1993-amending Act that deleted Section 18 was not enforced yet appointments under Section 18 could not be made, as section 16 did not refer to it. Majority in the full Bench of Radha Raizada case imported few conditions of Section 18, as it was not deleted but permitted the appointments to be made under different Removal of difficulties orders only.

45. It is also true that Section 18 was again substituted and Section 16 was amended to includs Section 18 by the 1995- amendment Act, Yet if legislature has chosen not to regularise appointments prior to enforcement of the 1993-amendment Act then it can not be said that it chose a date that is picked out from a hat or is whimsical. The reason for fixing a cut-off date in matter of regularisation is to adjust competing claims of persons claiming direct appointments and person appointed on ad-hoc basis; it is not between ad-hoc appointee prior to cut-off date and the one appointed after the cut off date. The legislature has chose 7-8-1993 the date the 1993-amendment Act was enforced, substituting Section 16 and deleting reference to Section 18, This date can not be said to be arbitrary or wide of a reasonable mark. It can not be struck down.

Cases Cited By the Petitioners

46. The conunsel for the petitioners have cited a few decisions in this regard. A blref discussion is as follows:

* Lala Ram Katiyar v. State of U.P, 1985 UPLBEC 433; and Prabodh Verma v. State of U.P, (1984) 4 SCC 251 : AIR 1985 SC 167. These cases explain the purpose of regularisation.

* Jacob M. Puthuparambil v. Kerala Water Authority, (1991) 1 SCC 28 : AIR 1990 SC 2228. The Court in this case ordered for regularisation on the basis of rule 9, which provided for their regularisation. This is not a case here.

* D.S Nakara v. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 130 and B. Prabhakar Rao v. State of Andhra Pradesh, 1985 Supp SCC 432 : AIR 1986 SC 210, In these two cases cut-off date was declared illegal. It was done on the footing that retired persons fall in one class and there was no justification to classify them in two classes. These cases are not of regularisation but of granting benefits after retirement. In these cases competing claims are of one retired before cut off date and one after cut-off date, unlike regularisation where competing claim is between persons seeking direct appointments and the ones appointed as ad-hoc.

* Jai Kishum v. U.P Co-operative Bank Ltd. Lucknow, (1989) 2 UPLBEC 144. In this case the cut off date was struck down as nothing was shown on behalf of the State Government to establish any rationale or object for classifying the ad-hoc appointees by fixing particular date (paragraph 42 of the judgement). This is not the case here.

47. These cases are decided on their own facts and are not applicable.

POINT No. 3 : ADVERTISEMENT IS VALID

48. Essential (minimum) qualifications for teachers (including heads) under “Intermediate Act are prescribed in Appendix-A of the Intermediate Regulations (Appendix-5). Its serial no. 1 provides essential qualifications for appointments of heads in an institution. This serial number is further subdivided into three sub-serials. We are concerned with sub-serial (1) of serial number 1. This sub-serial in column 2 prescribes the educational qualification teaching experience. Column 3 prescribes minimum age namely 30 years. There is no dispute regarding age or educational qualifications or period of experience. The dispute is regarding nature of experience; should it be of the posts mentioned in Appendix-A of the Intermediate Regulations or not.

49. Under Appendix-A of the Intermediate Regulations a candidate should have four year's experience of teaching Class IX to XII. Counsel for the parties state that under Government orders heads are required to take some classes in the institution and the fact that they are head-masters of a High School or Principal of an intermediate College will mean that they have necessary experience of teaching class IX to XII. But a junior High School is only up to VIII. A head-master of Junior High School can not have experience of teaching Classes IX to XII as a head-master of Junfor High School though his salary is same as an assistant teacher teaching Classes IX to X. He can not be qualified under Appendix A of the Intermediate Regulations. It is also pointed out that Appendix A of the Intermediate Regulations does not distinguish between assistant teachers and lecturers. Assistant teachers can be appointed as the Principal of an Intermediate College.

50. The advertisemets indicate minimum qualification for the post of head of institutions. They are in tune with the note to the Rule 12(5) of the Rules. They say the same thing. The experience of the posts mentioned under both of them is of posts different than the one mentioned in Appendix A of the Intermediate Regulations. The advertisements require four-year's experience.

* For the head-master of a high school, it should be as a,

(i) Head-master in a Junior High School; or

(ii) Assistant teacher in High School/Intermediate College

* For principal of an Intermediate College, it should be as a

(i) Head-master of a High School; or

(ii) Lecturer.

51. I have already explained that under Appendix-A of the Intermediate Regulations experience as a head-master of a Junior-High School can not qualify him although the note and the advertisements permit him for the post of head-master of a High School., The note and the advertisements exclude the teaching experience of an assistant teacher for being considered as qualifying him for the post of Principal of an Intermediate College, though Appendix-A of the Intermediate Regulation permits it. Is it illegal? Has the note to rule 12(5) varied the essential qualifications for the post of head of institution?

52. rule 5 of the Rules (Appendix-2) is headed as ‘Academic qualifications’. It states that candidate for appointment for the post of teacher (including heads) must possess qualification specified in Appendix-A of the Intermediate Regulations. Rule 12 is headed as ‘Procedure for direct recruitment’. Its sub rule 5(ii) talks about 20% marks are to be given for experience. Note to rule 12(5) is as follows:

‘Note: for the purpose of calculating experience, the service rendered as headmaster of Junior High School or as Assistant Teacher in High School/Intermediate College shall be counted in the case of selection of Headmaster; and for selection of Principal, the service rendered as Headmaster of a High School or as a Lecturer shall only be counted. The provision of sub-rule (4) of Rule 12 regarding the certificate of experience shall mutatis mutandis apply.

53. The note states that, for calculating experience, services rendered as headmaster of Junior High School or assistant teacher only shall be counted for head master of a high school. And for calculating experience for principal of Intermediate College service rendered as head master of a high school or as a lecturer shall only be counted. Is this note only for awarding marks for experience more than the required experience under rule 12(5)(ii), or does it lay down necessary qualification for experience?

54. The note by itself does not say so. It is appended as a note to Rule 12(5) of the Rules. This gives an impression that it is merely for awarding marks for experience more than the required experience. But I do not think that it is so.

55. Appendix A of Intermediate Regulation— Modified

56. It is correct that the rule 5 of the Rules adopts the qualification specified in Appendix-A of the Intermediate Regulations but this rule is headed as Academic qualification’. It is further correct to say that the note appears in rule 12(5) but it does not specifically say that it is only meant for awarding marks for experience more than the required experience.

57. Marks can only be awarded for experience more than the required experience. I have already explained that and it was agreed by the counsels of the parties that the required experience under the Appendix-A of the Intermediate Regulation can never be as head-master of a Junior High School, It the note does not lay down the conditions relating to experience, then how can experience as head of a Junior high school be counted as experience more than the required one? Apart from it the note clearly provides that experience for head master of a High School, experience as a head master of a Junior High School or assistant teacher only shall be counted. Similarly for the post of principal of an Intermediate College it provides that experience as a head-master of a High School or lecturer only shall be counted. This means that for the posts of heads, the note to rule 12(5) has modified the conditions of qualifying experience mentioned in Appendix A of the Intermediate Regulations.

58. Section 32 (Appendix 1) of the Act provides that the provisions of Intermediate Education Act and regulations made thereunder will continue in case they are not inconsistent with the Act and the Rules. Note to rule 12(5) prescribes experience of the posts that is different from Appendix A of the Intermediate Regulations. The nature of experience mentioned in Appendix-A of the Intermediate Regulations is inconsistent with note to the rule 12(5); it no longer continues; it stands modified by the note to this extent.

59. The advertisements issued are in conformity with the note. It is wrong to say that any person who has essential qualification has been excluded from consideration or any person who ought not to be considered has been considered for the selection. The selection procedure can not be vitiated on this ground11.

60. Petitioners in Writ Petition Nos. 46398 of 1999, and 40602 of 1999 are for being considered for the post of head, of an Intermediate College. One of them is assistant teacher. The other one does not have four year's experience as lecturer but in case his experience as assistant teacher is in cluded then he will have necessary experience. Their candidature was rejected on the ground that they were not qualified in terms of the advertisement. One of them was direct applicant and other one was considered being one of the two senior most teachers in the institution. I have already held that note to rule 12(5) amends the minimum qualification. In view of this, there was no illegality in rejecting their candidature.

61. I would like to point out that no submissions were raised before me that this note is discriminatory or ultravires of Articles 14 or 16 of the Constitution. The veracity of the advertisements was challenged or interpretation to the note was being put as mentioned in preceding paragraphs and has been dealt with by me but constitutionality of the note in case, it is held that the note modifies the minimum qualification was not raised before me.

62. However. I wish to add that the assistant teachers teach in classes IX and X only. They do not teach classes XI or XII. The state could legitimately exclude the assistant teachers from being considered as head of an intermediate institution (upto 12th class). There is neither any-illegality, not any discrimination. And this note could not have been struck down.

63. But the note is silent whether a lecturer can apply as a candidate for the post of head-master of a high school or not, A lecturer teachers classes XI and XII. Does the note exclude him? Should he be excluded from being considered as head master of a high school or not? These questions were neither argued before me, nor I wish to decide them. Suffice it to say that no lecturer has filed any writ petition claiming that:

* He had applied for being considered as a head master of a high school.

* He has been excluded for consideration on the basis of the note.

* The note is unreasonable and arbitrary.

64. May be post of lecturer is more lucrative, fulfilling and offers better promotional avenues. In any case there is no pleading, no reply. I can not decide this question in air, I have it here.

POINT No. 4: NOT NECESSARY TO ALLOCATE VACANCY YEAR WISE

65. Counsel for the petitioners submit that:

* Vacancies have to be filled every year.

* In case vacancies could not be filled every year, then not only they have to be calculated year-wise but are also required to be filled up separately yearwise.

* They can not be clubbed as has been done in the present cases.

66. According to them this is necessary conclusion from Section 2(1). Section 10 of the Act (Appendix-1), and Rules 4, 11 and 12 of the Rules (Appendix-2). They have also cited Shakuntla case, State of UP v. Shakuntala Shukla, (1999) 3 UPLBEC 1702 and NR Banerjee case, Union of India v. NR Banerjee, (1997) 9 SCC 287 : (AIR 1997 SC 3761) in support of their submissions. Could vacancies be clubbed? Is this procedure correct?

Cases cited by the petitioners

67. Shakuntla case and NR Banerji cases were of prmotion. They are not applicable to the facts of these cases.

* In Shakuntala case the Court was interpreting regulation 438 of the Police Manual and held (parargraph no. 27) that the list of persons approved for permanent promotion is to be made annually i.e to say this promotion was required to be done annually.

* NR Banerji's case is similar. In this case it was held (paragraphs 5 and 6) that, under the guidelines, meeting of Departmental Promotion Committee (DPC) was required to be convened at regular annual intervals to draw a panel. On basis of these guidelines, it was further held that the DPC is required to sit every year.

68. The Courts in view of statutory provisions in the above mentioned cases held that the vacancies for promotion have to be filled annually and in case it could not be done annually, then the vacancies should be determined annually and may be filled year wise Let. consider if there is any statutory requirement to make appointments annually in the present case as was in the two cases cited by the petitioners.

69. Section 2(1) of the Act defines year of recruitment to mean period of 12 months commencing from 1st day of July of a calendar year. Section 10 is headed as procedure of selection by direct recruitment. The management is to determine the number of vacancies existing or likely to fall vacant during the year of recruitment and notify the same to the Board. This is to be done so that while making appointments account may be taken of all existing vacancies in that recruitment year. A teacher retiring during any academic year continues till 30th of June i.e end of the recruitment year.

70. Rule 4 prescribes that a teacher should be of 21 years of age on 1st July of the year in which the vacancies are advertised. Rule 11 of the Rules is headed as determination and notification of vacancies to be notified by the management through DIOS. They have to be sent by 15th of July of the year of recruitment. Rule 12 of the Rules is headed as ‘Procedure for direct recruitment’ and prescribe for advertisement and procedure for allotting marks to the candidates.

71. There is nothing in above-mentioned provision to show that:

* Selection has to be held annually; or

* Appointments are to be made year-wise; and

* In case appointments could not be made year-wise, then all these vacancies have to be allotted to that particular year.

72. The facts here are different than the two cases previously mentioned in paragraph 58. These cases are of direct appointment unlike cases cited by the petitioners (paragraph 58) on this point. Those case related to promotion. The vacancies in case of direct appointments are notified by an advertisement and all the vacancies as mentioned in the advertisement have to be filled up. They are not requried to be filled up year-wise, at least there is nothing in the Act or in the Rules to warrant this.

POINT NO. 5 : DIRECT APPOINTMENT– LAW AT OCCURENCE OF VACANCY– NOT APPLICABLE

73. The vacancies that are being filled up now are prior and subsequent to the 1996 Amendment Act and the Rules. They are not being filled up according to the law when they came into existence but according to the law as it stands on the date of the advertisement. Should they be filled up according to the law as applicable on the date when they came into existence, or the date of advertisment, or the date of selection. Among these three options there is no difference between the law on the date of advertisements and on date of selection and as such there are only two options (i) date of occurrence of vacancy (ii) date of advertisement.

Cases Cited Bv the Petitioner

74. Councel for the petitioners have cited YV Rangaih v. Sreenivas Rao, (1983) 3 SCC 284 : (AIR 1983 SC 852) B.L Gupta v. MCD, (1998) 7 JT (SC) 225, (1998 AIR SCW 3960), and Sharad Kumar case11A Judgment in W.P No. 12079 of 1999 Sharad Kumar v. Gomti Gramin Bank decided by a Division Bench of Allahabad High Court on 21-4-1999 (reported in (2000) 2 ESC 1094) to show that vacancies have to be filled according to the law as applicable on the date of occurrence of vacancies, These cases have no application here.

75. The cases mentioned in the previcus paragraph are not of direct appointment but of promotion.

* In Rangaih case promotion was to be made every year and it is for this reason it was held (paragraph 9) that the vacancy occurring prior to amendment in the rules will be governed by the old rules.

* In L.L Gupta case it was held (paragraph 9) that new rules were prospective and did not apply to the previous vacancies that were to be governed under the old rules. It is for this reason that the Court held that unamended rules would apply.

* In Sharad Kumar case it was conceded that new rules are prospective and did not apply to the post that came into existence prior to the enforcement of the rules.

76. The present case is a case of direct appointment. Vacancies, as held in point no. 4, are not to be filled year-wise. These vacancies have been advertised and have to be filled up according to law applicable on the date of advertisement that is same as the date of selection here.

POINT NO. 6 : ALLOTTING MARKS OUT OF 500– NOT ILLEGAL

77. Rule 12 of the Rules prescribes the procedure for direct recruitment. Different clauses of Rule 12(5) of the Rules indicate that how 90% of marks in selection of heads are to be allotted. Out of this 60% marks are on the basis of quality points (rule 12(5)(i). 20% marks are for experience (rule 12(5)(ii), and 10 marks are for doctorate degree (rule 12(5)(iii), 20% marks under 12(5)(ii) of the Rules are further divided into some marks for published research papers and some for experience, Similarly different clauses of rule 12(4) of the Rules allot different percentage of marks in selection of teachers adding upto 9% of the marks. The remaining 10% marks are awarded on the basis of interview under rule 12(7) of the Rules. Out of this 4% marks are given on the basis of subject/general knowlege, 3% on the basis of personality, and 3% on the basis of ability and experience. This is how 100% marks are divided. Rule 12, or for that matter any other rule, does not state that total marks for the selection will be 100. Marks to be allotted under sub rule (4), (5) and (7) of rule 12 are shown in percentage, this means that marks to begin with could be any convenient number other than 100.

78. The counsel for the petitioners have brought to my notice the note to Rule 12(5) of the Rules. This note is for clause (ii) of rule 12(5). This clause rule 12(5)(ii) allots 20% marks for experience. The note says that how 20% marks under rule 12(5)(ii) of the Rules can be awarded. It states that -1 mark for each published research papers with maximum of 4 marks, and 2 marks for each year for experience more than the required experience with maximum of 16 marks - can be allotted, According to the counsel for the petitioners use of the word ‘marks’ in the note to rule 12(5) indicates that the Board can allot marks from a total of 100 only otherwise the words ‘marks’ in the note to rule 12(5) will become meaningless.

79. Purposive Interpretation or Construction.

80. It is correct that in the note to rule 12(5) word ‘mark’ has been used. But one has to see the purpose behind sub rule (4), (5), and (7) of rule 12. Different clauses of rule 12(4), 12(5) and 12(7) use the word ‘percentage’. One has to see purpose of sub-rule (4), (5) and (7) of Rule 12 of the Rules and interpret the note in its light. I had occasion to consider purposive interpretation in Km. Suman Upadhyay v. Vice Chancellor, (2000) 2 All WC 1216 : (2000 All LJ 1213) in some detail. I have held that one may; applying purposive construction or interpretation, depart from literal interpretation or adopt strained meaning to achieve leqislative purpose. Let's consider purpose of these rules.

81. Different clauses of sub rules (4), (5) and (7) of Rule 12 of the Rules indicate percentage under different category. This shows that their purpose is not to fix absolute limits for different categories, but to indicate their relative importance (weightage). In the light of this Intention or purpose, the maximum of marks given in the note means what maximum relative importance (weightage) can be attached to these categories. To my mind it means maximum of 4% of marks can be awarded for published research paper and maximum of 16% of marks can be awarded for experience more than the required experience. It would have been better if the Rules had used the word ‘percentage’ instead of ‘marks’ 73., but from this it can be held that marks to begin with have to be 100.

82. The Board has stated that it was for convenience that they had started with 500 marks so that on different heads for interview proper marks could be given and decimal may be avoided. In any case marks can always be mathematically scaled down to 100: It does not make any difference. There is no illegality in this.

POINT NO. 7 : THE RULES GIVE IMPORTANCE TO SERVICE

83. Counsel for the petitioners submit that procedure of allocating marks under sub rule (5) and (7) of rule 12 does not give any importance to service records that is essential for considering a candidate as Head of the institution and as such rules allocating marks are unreasonable and arbitrary.

84. The Borad has adopted different procedure for awarding marks on experience for direct applicants and for two senior most teachers. Let's understand different procedure adopted by the Board for awarding marks on experience. Whether such different procedure is valid or not, will be seen under next heading (Point No. 8)

For Direct Applicants

85. rule 12(5)(ii) of the Rules contemplates awarding marks on experience for more than the required one. Two percent of marks are to be allotted for each years's experience, which more than the required experience it can go upto maximum of 16%. One percent of marks is to be awarded for every published research paper with maximum of 4%. This is how 20% of marks under rule 12(5)(ii) have been divided.

86. The Board has applied aforesaid procedure for direct applicants. 16% marks have been allotted on the basis of experience. Note to Rule 12(5) of the Rules indicates that provisions of rule 12(4) regarding certificate of experience will apply to rule 12(5) also. Note to rule 12(4) states that certificate of experience should state that date of appointment, date of joining, and scale of pay. It should be duly signed by the Principal/Head, master and counter-singned by the District Inspector of Schools or District Basic Shiksha Adhikari as the case may be. This is the only way the service reports of direct applicants are scrutinized. This is indirect and gives little (or in fact no) importance to service records; it gives importance to length of service.

Two Senior Most Teachers

87. The Board has framed guidelines. Paragraphs 15 to 19 of the guidelines (Appendix-6) indicate how 20% of marks under rule 12(5)(ii) are to be allocated to two senior most teachers. In substance it first gives 1% of marks on each published research paper to the maximum of 4%. Thereafter remaining of 2% or in case there are no published reserarch papers, then 20% entirely, are given on the basis of character roll entry of the two senior most teachers., They are given 2% of marks for each year; for the years in which character roll entries are excellent or very good, or good, or satisfactory after the first four years (the minimum requirement). So far as two senior most teachers are concerned, their service records are seen directly.

CASES Cited Bv the Petitioners

88. Counsel of the petitioners have cited Indraraj Singh Yadav v. U.P Madhyamic Shiksha Seva Ayog, Allahabad, 1984 UPLBEC 510 : (1984 Lab. IC 1466) and a few other decisions12 to show that records are required to be seen. They submit that all recommendations are liable to be set aside as the records have not been seen — at least for the direct applicants.

Indraraj Case

89. The cases mentioned in the previous paragraph related to the Interpretation of earlier guidelines issued by the Commission under the Principal Act. Under these guidelines candidates were to be judged, apart from other things, on ‘Administrative ability regarding school managment.’ In Indraraj cases a division Bench of this Court held that:

* The guidelines are valid;

* They (the guidelines) are binding; and

* Service records have to be seen under the head ‘Administrative ablity regarding the school management’ indicated in the guidelines.

90. Subsequent cases mentioned in the previous paragraph were also of senior most teachers of an Institution under the earlier guidelines that were held to be binding in Indraraj case. In these cases either records were not before selection committee or if they were there, they were not considered. It was for this reason that appointments were set aside. These cases can not apply for direct applicants under the law applicable here. So far as the service records of the two senior most teachers are concerned, they are seen under the present guidelines also.

91. Under the Act or the Rules or the guidelines applicable, there is no head as ‘Adminnistrative ability regarding school management’. There is no provision for considering the records of direct applicant are seen only for calculating marks on experience as indicated by me under sub heading ‘For Direct Applicants’ (paragraphs 76 and 77) The guidelines here mention service records of two senior most teachers should be considered. They have been considered in these cases. There is nothing on the record to show that records of two senior most teachers as indicated in the guidelines have not been considered.

92. The counsels for the petitioners have cited two other cases namely Janki Prasad v. State of J and K, (1973) 1 SCC 420 : AIR 1973 SC 930 (937) and Dr. Krushna Chandra Sahu v. State of Orissa, (1995) 6 SCC 1 : AIR 1996 SC 352, to support their plea that service record of direct applicants should be seenl These cases are also not applicable.

Janki Case

93. In Janaki case appointments to the post of principals (in State Service) were to be considered amongst teachers who were also in service of the state. These appointments were made on the basis of reservation on religion. They were set aside and thereafter the State Government was directed to make fresh appointments. Fresh appointments,.were made and were again challenged on the ground that same persons on the basis of religion have been again selected.

94. All applicants in Janki case were government servants and selection was based on interview alone. It is in this light that the Apex Court made observation that the service records may also be seen as they were employees of the State Government and after appointment would continue to be employees of that state and appointment ought not to be made only on interview. This is not the case here.

95. Here employers for the direct applicant — unlike in Janki case—are different. Selection is not based on interview alone. The records of two senior most teachers, who are under one employer and if selected will continue to be under the same employer, have been seen. Experience for direct applicants, under different employers, has not been totally ignored. 16% marks are allocated for having experience, more then the required one. Here length of service is seen.

Sahu Case

96. In Sahu's case, ((1995) 6 SCC 1 : AIR 1996 SC 352) entire selection was based on service record. The appointments were to be made on a teaching post. The Court made some observations, while setting aside those appointments. These observations were more to emphasise the point that when appointment to an educational post is being made then the person should have knowledge of the subject concerned and character roll has limited role. The Apex court was limiting role of the sevice records and emphasising knowlege of the subject concerned. The Apex Court never meant that an appointment-without looking into service records of the direct applicants serving under different employers—would be illegal.

97. Here the Rules and the guidelines are a mixture of experience and academic qualifications. It gives importance to both of them. It can not be said that it is unreasonable. Neither can it be set aside on the ground that it does not give any importance to service records (in fact it does), nor any recommendation can be quashed on this ground.

POINT NO. 8 : DIFFERENT PROCEDURE-LEGAL

98. The Board has not seen service records of the direct applicants (except indirectly while calculating marks for experience) but has admittedly looked into service records of two senior most teachers and has awarded marks upto 20% in accordance with the guidelines. Is this departure for senior most teachers valid? Is it permissible under rule 12(5)(ii) of the Rules?

99. Under the note to rule 12(5)(ii) a maximum of 16% marks could be awarded on the basis of experience more than the required experience and 4% on the published research paper. Under these rules record is not seen directly; only length of service is seen. Then how could service records be seen under the guidelines? How could Board provide different allocation of marks for the two senior most teachers?

100. Many petitioners had taken a plea that selection is wrong because service records of the two senior most teachers were not taken into account. When the Borad placed the entire procedure along with the guidelines, they turned around, Now they submit that once it is held that the service records are not to be looked into under sub-rule (5) or (7) of Rule 12 of the Rules, then the Board ought not have seen the service records of the two senior most teachers.

101. Almost all writ petitions (except one) are by the one of the senior most teachers officiating as ad-hoc head. Most of them do not have any published research paper. If this submission is accepted then 4% of their marks, unless it is on published research work, has to be deducted. These marks have been awarded to them in case they, have good service record that they generally have. The guidelines have some advantage to the two senior most teachers. This submission is to their disadvantage. But as atleast one writ petition is by a direct applicant, I decide this question.

102. Under Rule 11 of the Rules vacancies are determined and notified. Rule 11(2)(b) of the Rules state that service record including character of two senior most teachers should also be sent to the Board. In case the sevice record including character roll of the two senior most teachers is not to be considered, then there was no necessity of providing that it should be so sent. Rule 11(2)(b) is slightly in conflict with rule 12(5)(ii) They have to be harmoniously interpreted and reconciled so far as their applicability to the two senior most teachers is concerned. If this is not done then Rule 11(2)(b) will become redundant.

103. The Board has framed guidelines (appendix-6) under Section 9 of the Act to reconcile Rule 11(2)(b) and rule 12(5)(ii). The Board has indicated how 20% of the marks that are meant for experience under rule 12(5)(ii) are to be awarded. This is done on the basis of service records of the two sen ior most teachers (explained in paragraph no. 78). This procedure has been adopted in order to reconcile the two rules 11(2)(b) and 12(5)(ii) for the senior most teachers. I see no justification to set aside these guidelines or to reduce the marks allotted to the two senior most teachers on the basis of the guidelines.

POINT NO. 9 AND 10 : RULE 12(5) NOT ILLEGAL DUE TO IMPORTANCE TO ACADEMIC QUALIFICATION.

104. Marks are allocated under different categories under sub paragraphs to Rule 12(5). According to Rule I2(5)(i) 60% marks are on the basis of quality points mentioned in Appendix-D. This is on the basis of educational qualifications in different public examinations. Under rule 12(5)(ii) maximum of 4% marks be given on the basis of published research papers and 10% marks are to be given on the basis of doctorate degree under Rule 12(5)(iii) of the Rules i.e 74% can be awarded on the basis of academic qualification. Whereas maximum of 16% marks could be awarded on experience under rule 12(5)(ii) for direct applicants and 20% marks can be awarded to the two senior most teachers on service records under the Rules and the guidelines. According to counsel for the petitioners this is undue emphasis on academic qualifications: it is unreasonable and arbitrary. According to them administrative capability is more important for appointment as head of an institution than the academic excellence.

105. It is true that Rule 12(5) gives importance to the academic qulaifications. But this is not an irrelevant consideration. What importance is to be given is best left to the experts unless it orders in the realm of arbitrariness. This is not a case here. In case emphasis is laid down on the academic qualifications then it cannot be said that the Rules are arbitrary.

106. Counsel for the petitioners have brought to my notice Rule 12(4) where 90% of marks are to be allotted in selection of teachers. Rule 12(4) allots only 4% marks for doctorate degree in contrast of 10% in selection of Head of an institution and Rule 12(4) does not award any other marks for published research paper. According to counsel for petitioner this is discriminatory as head's job is mostly administrative and teacher's job is to teach. According to them the Rules ought to have given less importance on academic records for a head than for a teacher.

107. It is true that a head of an institution should be better administrator than a teacher. His Job is essentially to manage the institution but he has to inspire. If the inspiration is to come through academic excellence then let it be. It is not irrelevant. The rule cannot be termed as discriminatory or arbitrary for this reason alone.

POINT NO. 11 : MARKS OF POSTGRADUATE DEGREE-ALLOTTED ONCE

108. Sixty per cent of marks under Rule 12(5)(i) are to given on quality points specified in Appendix-D of the Rules. This in turn depends on percentage at different public examinations. According to the petitioners the Board has given marks for post graduation twice in respect to those candidates who have got two postgraduate degrees and this is illegal.

109. Many candidates have got two post graduate degrees. The Board has mentioned percentage of both degrees but has taken the percentage of that post-graduate degree where marks obtained were higher. Rule or guidelines are silent in this regard. The Board in its wisdom took percentage of that post-graduate degree where higher marks were obtained. It has not given benefit of both degrees. The procedure, to take into account that postgraduate degree where percentage of marks obtained is higher, is reasonable. There is no illegality as benefit of only one degree is given.

POINT 12 : REGION-WISE RESULTS-NO ILLEGALITY

110. State has been divided into 13 regions for educational purposes. One Joint Director of Education (Rule 2(b)) has been made in-charge of a region. This has been done for better administration. The Board has advertised vacancies, considered the candidates, and declared results’ region-wise for the heads and state-wise for the teachers. Is this region-wise declaration of result for heads illegal? Does it amount to region wise reservation?

111. The Principal Act was enacted in 1982. This region-wise procedure for heads has been followed since its inception. According to the respondents, it is for two reasons (i) two senior most teachers have to be considered and (ii) a Joint Director is in-charge of a region, he can well administer it.

112. Vacancies for heads are advertised region-wise mentioning names of institutions in that region. A direct applicant has to indicate his choice of institution and name of region where he is applying. There is no prohibition for applying for any institutions situate in any region or for institutions of different regions. The only condition is that he has to submit different forms for different regions. A candidate has to indicate the region in the form and he can indicate only one region in that form. All candidates are also required to give their choice of their institutions and mention the region. It is clear that only choice of one region can be given in one form i.e all institutions in the form have to be from one region.13

113. There is no bar in the Act, or the Rules, or the guidelines, or the advertisement that candidates of one region cannot apply for another region or they cannot submit more than one form for different regions. The Board has also framed guidelines under Section 9(a) of the Act. These guidelines contemplate declaration of result for a division (or a Region). The Board is considering candidates region-wise only for convenience, as the two senior most teachers of an Insltution are to be considered for that institution. The Board has neither barred, nor prohibited any one for applying for institution in any region of the State, or for more than” one region.

114. The Board has filed affidavit to show that some candidates who were senior most teachers in an institution in one region applied as direct applicants for institution in another region and they were also considered.14 There is neither any allegation nor anything on the record to show that anyone who had applied for any region or more than one region has not been considered for that region. It is only for administrative convenience that the vacancies are advertised, considered, and results are declared region-wise. The Board has not restrained anyone from applying for any Institution in any region. There is no region-wise reservation.

Cases Cited by the Petitioners

115. The counsel for the petitioners have submitted that region-wise selection is illegal and violates Article 14 and 16 of the Constitution. They have cited Nidamarti Mahesh Kumar v. State of Maharashtra, (1986) 2 SCC 534 : (AIR 1986 SC 1362) and Union Carbide India Limited v. Union of India, (1986) 2 SCC 547 : (AIR 1986 SC 1097) in support of their submissions. These cases are not applicable.

Nidamarti case

116. In Nidamarti case of reservation for seats in medical colleges were made on the basis of region. The students passing 12th class from jurisdiction of one Univer sity were not eligible for admission in colleges situate within the jurisdiction of an other University. This was held to be violative of Article 14. There was region-wise reservation.

Union Carbide case

117. In Union Carbide case selection was made on the zonal basis so that candidates could be absorbed in the vacancies in their own region. They could not be considered for another region. It is for this reason that selection was held to be illegal.

118. The above mentioned two cases are not applicable. Here no region-wise reservation has been made. Anyone can apply in any region. It is only for administrative convenience that vacancies are-advertised, considered, and filled up-region-wlse. There is neither region-wise reservation nor any illegality in declaring region-wise results.

POINT NOS. 13 AND 14 : ENGLISH VERSION WILL PREVAIL BUT CORRIGENDUM VALID-RESULT LEGAL

119. The State Government is empowered under Section 35 of the Act to make rules for carrying out purposes of the Act. The Rules have been framed in the year 1998 in Hindi and have been published. Hindi is official language of the State. The Governor has also published English trans lation of the aforesaid rules. Rule 12(5) prescribes the manner in which marks are to be allotted. Rule 12(5)(i) states that 60% of the marks will be allotted on the basis of quality points specified in Appendix-D. This appendix also indicates relative importance (weightage) to be given to the percentage of marks at different public examinations. There was some difference between the Hindi (Appendlx-3) and the English version (Appendix-4) of Appendix-D. In the Hindi version weightage to the percentage of marks in high school, intermediate, graduate, and postgraduate degree was in proportion of 1, 2, 4 and 8. In the English version it was only 1, 2, 3 and 4. The result is that if quality point markswere to be prepared on the basis of the Hindi version then person scoring higher percentage in graduate and post graduate degree would get more quality points marks. In case English version was to be followed then he would score less as lesser weightage has been given to them. The question, is which one was to be followed: the Hindi one or the English one. Could both versions be reconciled?

120. The respondents have taken total marks to be 500 and 60% of the same (300 marks) under Rule 12(5)(i) are to be awarded for quality points. In case Hindi version is followed then maximum marks that can be awarded obtained under Appendix-D is 174 and in case English version was to be followed then only 124. The respondents after calculating the quality points have scaled it up to 300 by multiplying the quality point marks of a candidate with 300/174 as they had followed the Hindi version. In case English version was to be followed then—

* qulity point marks had to be calculated after giving different weightage for graduate and post graduate degree: and

* had to be scaled up to 300 by multiplying the quality points marks of a candidate by 300/124 and not by 300/174.

121. There would be some difference in the results. What that would be, is difficult to speculate. But surely there would be some difference.

122. Article 348 of the Constitution of India (Appendix-8) prescribes the language to be used in Supreme Court and in the High Court and for the Acts. Bills rules etc. Sub-Article (1) of Article 348 (Article 348(1)) states that authoritative text of the Acts, rules, and byelaws issued under any law made by legislature of a State shall be in English language. Sub clause (2) of Article 348 (Article 348-(2)) permits a Governor of a State to use Hindi or any other language for official purpose of the State. This can be done only with prior approval of the president.

123. The state of U.P has adopted Hindi as official language. It is to be used for official purposes. Sub clause (3) of Article 348 (Article 348(3)) states that in case official language is other than English then Governor of the State will also publish a translation of the order, rule in English language under his authority in the official gazette. And that would be deemed to be authoritative text of the same in English. In this case there was no ambiguity in Hindi or English version. Both versions were clear. There was conflict between the two. It is in this light that this question is to be answered.

124. This Court by different full bench decisions15 has held that in case of ambiguity or doubt in the English version, Hindi version can be looked into for correct interpretation. But here there is neither, any ambiguity in the English version nor in the Hindi one. Both versions are clear. They are in conflict with each other. The question is which version will prevail. This has also been answered by full benches of our Court in favour of the English version.

125. The Advocate, General submits that the Hindi version will prevail over English version for the following reasons:

○ The official language of the State is Hindi.

○ The Rules have been framed in Hindi.

○ The English version is merely a translation and can not replace the original.

○ It is an anomaly that the translation and not original is to be followed.

126. The difference between English and Hindi is not of translation but of numbers. It may be printing mistake; or perhaps an obvious error. But the English version under authority of Governor is deemed to be authoritative text. I am bound by the legal fiction under Article 348(3) of the Constitution even though as Justice Holmes would say, ‘fiction always is a poor ground for changing substantial rignts16 And then there are full bench decisions of our Court. ‘Five Judges’ full bench of our Court in Smt. Ram Rati v. Gram Samaj, AIR 1974 All 106 quoting three Judges’ full bench of Jaswant Sugar Mills Case17 has held:

‘Both the Hindi version as also the English translation of Bill or Act etc. published in the Official Gazette are valid and authorised and both of them can be looked into and put to official use. There is no competition between the two. It is only in case of conflict or divergence between the two versions that the English version may reign supreme and supersede the Hindi one.

This being the position we are clearly of the opinion that in the present case it is the English text which shall prevail over the Hindi version’.

127. This observation of the five Judges was approved by majority decision of seven Judges in Mata Badal Pandey case.18

128. It is admitted case that the quality point marks were calculated acording to Hindi version and thereafter the results were declared. This was not permissible, as it should be done according to English version. The result and selection list was illegal as the English version stood on the date of declaration of result.

POINT 15 : THE RESULTS CAN NOT BE SET ASIDE

129. The hearing of this writ petition continued for some-time. At the end of submission, the State Government filed a supplementary affidavit annexing copy of official gazette dated 17-1-2001. It is a ‘Shudhi patra’/corrigendum. The English version of Appendixes ‘B’ and, ‘C and ‘D’ of the Rules has been corrected. Its authorised English translation has also been published on 31-1-2001. The English version now after correction is same as the Hindi version. Could this be done? Is it permissible? Can now the results be set aside?

130. The counsel for the petitioners submits that:

○ Appendix D is part of the Rules.

○ Rules have been framed under Section 35 of the Act and cannot be made with retrospective effect.

○ Appendixes cannot be retrospectively amended so as to validate the results.

131. Rules framed under Article 309 of the Constitution can be retrospective. Other rules may not be retrospective, unless the rule making authority is-expressly, or by necessary implication-so empowered. The Rules have been framed under Section 35 of the Act. It does not state that the rules can be framed with retrospective effect. But does it do so by necessary implication?

132. It is not necessary to decide if Section 35 confers power to amend the Rules retrospectively by necessary implication. In my view, the Rules have not been amended retrospectively by correcting the English Version of appendixes. The Rules were framed in Hindi; Hindi is the official language of the State. It is correct that English version is authoritative text of the Rules, but there was no mistake in the translation. The mistake was of number printed in the authorised translation of the Rules; this has been corrected. The State Government by correcting the authorised text has not made any new rule but has merely corrected the official translation. It cannot be said that the State Government has framed any new rule. No there is no difference between the English and the Hindi version. The Board had calculated the quality point marks according to the Appendix-D of the Rules that at present are the same in both versions. I am not prepared to set aside the results on this ground.

A CLARIFICATION

133. Counsel for the petitioners submit that some petitioners, who were appointed prior to 7th August 1993, have filed the writ petitions as the respondents did not constitute selection committees under Section 33-C(2) of the Act and the Board proceeded to make appointment on their posts. According to them, these petitioners have additional ground that they are entitled to be considered for regularisation in accordance with law under the Act.

134. In few writ petitions the teachers have filed applications for impleadment on the ground that:

They are senior than the petitioners.

135. Petitioners are not entitled to continue as head.

136. It is they and not the petitioners who are entitled to be regularised as heads under Section 33-C of the Act.

137. I have decided these writ petitions on general submissions made by the parties on the legality of the advertisements, validity of rules and procedure adopted by the Board. I have not decided aforesaid submissions in these writ petitions. During pendency of these writ petitions an Ordinance number 19 of 2000 has been promulgated regularising some more persons though cut-off date is the same. I have not dealt with their cases. In these circumstances, liberty is granted that persons may file applications before the Director of education for regularisation. It case any such applications are filed then that would be considered in accordance with law. This may be done before making any appointment in that particular institution: the appointments may be made only if necessary i.e if regularisation is rejected.

FEW OBSERVATIONS AND RECOMMENDATIONS

138. I would be failing in my duty if I don't draw attention of the State government on the following aspect of these cases.

(i) The State has apparently taken contradictory stand by applying principles of the Reservation Act for heads of Institution in Degree colleges and not applying for heads of institutions up to 12th class. The State may take one stand.

(ii) I have held that note to Rule 12(5) of the Rules amends the minimum qualification of Appendix A of the intermediate Regulations. The State may legitimately exclude assistant teacher from applying as Principals for Intermediate College as assistant teachers teach classes IX and X (Paragraphs 55 to 57). But the note also excludes experience as lecturer for being considered as Head Master of a High School. A lecturer teaches in class XI and XII. Should he be so excluded? I have not decided it as it did not arise in this case. But in a suitable case this question may have to be gone into.

(iii) The mistake regarding Hindi and English version came to the knowledge of the Board and the board wrote a letter dated 8-12-1999 to the State Government for correcting the same and for guidance. This case was earlier argued a year ago before a single Judge and judgment was reserved. I am told that this point was urged, yet nothing was done by the State.19 It was only at the end of the arguments of the cases that corrigendum was published on 17-1.-2001 and its English translation was published on 31-1-2001. This ought to have been done much before.

(iv) The Rules (framed in 1998) could have been better framed. Their improper drafting led to litigation and stay of selection process of teachers and heads of the institutions of the State. Here are a few examples.

(a) Rule 5 adopts minimum qualification of Appendix-A of the Intermediate Regulations. This is amended by means of note to Rule 12(5). The ‘note’ does not amend it directly but only impliedly.

(b) Sub-rules (4), (5) and (7) of the Rule 12 use word ‘percentage’ but note to Rule 12(5) uses word ‘marks’. This creates confusion.

(c) The Rules may give importance to published research work twice in case of selection of Head of an Institution. 10% marks are given for doctorate degree and 4% maximum marks for published works. It is possible that these two may overlap, though there is no such allegation that they have in any selection.

(d) Rule 11(2)(b) and rule 12(5)(ii) could have been framed in a way to clarify that different procedure for awarding 20% marks under rule 12(5)(ii) will be followed for two senior most teachers and direct applicants, (e) Rule 11(2)(a) uses the word ‘trained graduate grade’ and note to Rule 12(5) uses the word ‘Assistant’ teacher in High School/Intermediate Colleges. Counsel agree that at present these two grades mean the same thing. It was better if the rule making authority had used the same words.

139. Ambiguous, unclear, and confusing law leads to litigation and wastage of time, It keeps the lawyers and the Courts busy but this could hardly be the aim of the State. Our judiciary-having one of the lowest number of judges per million of population in the world, with large number of vacancies, and overburdened Court-would not mind clear unambiguous statutory law.

Symbolic logic and Plain language

140. Lord Denning has written a book entitled “The Discipline of Law”. The first chapter of part one of the book is ‘Command of language’. He narrates ‘The tools of trade’ for those who wish to succeed in the profession of law. It is also relevant here:

‘The reason why words are so important is, because words are the vehicle of thought. When you are working out a problem on your own-at your desk or walking home you think in words, not in symbols or numbers. When you are advising your client-In writing or by word of mouth-you must use words. There is no other means available. To do it convincingly, do it simply and clearly. If others find it difficult to understand you, it will often be because you have not cleared your own mind upon it. Obscurity in thought inexorably leads to obscurity in language.’

141. Lucidity in thinking and clarity in writing are important. It is truer for legislators and framers of statutory law than for anyone else. In recent times ‘Symbolic logic’ and ‘Plain language’ has been used to achieve it. We have not paid them enough attention. The time has come when law colleges. Research/training institutes may take them more seriously than they have done so far. Emphasis on ‘Symbolic logic’ and ‘Plain language’ is important. This may be done with courses or at least an introduction on these aspects. This may not be sufficient: it requires practice all the time but atleast it is a good beginning. I leave it to the law colleges and institutions to work out its modalities.

Restatement of Law

142. Laws may be clear and certain: without there being any obscurity. Many years ago, it was said.19A

‘One of the tasks of this Court is to preserve the uniformity of determination. It may be that in performing the task the Court does not achieve the uniformity that was desirable and what uniformity is achieved may be uniformity of error. However, in that event it is at least uniformity’.

143. Public at large would equally welcome clear “Judge made law”: the law as explained and enunciated by us, the judges. I had occasion to suggest in a case20 that restatements of law may be stated as has been done by American Law Institute.21 Perhaps some day this may also be undertaken by research and training institutes.

CONCLUSIONS

144. My conclusions and directions are as follows:

(i) The post of head of an institution is a single post and the State Government has rightly not provided any reservation on it.

(ii) The Cut-off date namely 6th August 1993 provided in Section 33-C of the Act is not illegal, arbitrary, or discriminatory.

(iii) There is no illegality in the advertisement issued by the Board. It is in conformity with the note to Rule 12(5) that amends minimum qualifications.

(iv) In the present case, the appointments are being made by direct recruitment and not by promotion:

○ Vacancies need not be marked separately for any particular recruitment year;

○ They could be clubbed together.

○ While filling these vacancies, the law as applicable on the occurrence of vacancy need not be applied.

(v) The respondents had rightly applied the law as it was at the time of advertisement and selection.

(vi) The Board has given marks from total marks of 500. There is no illegality in the same.

(vii) The Board has adopted different procedure for allotting 20% marks under rule 12(5)(ii) of the Rules for direct appointment and two senior most teachers. This different procedure is not illegal and could be done under the guidelines in view of Rule 11(2)(b) of the Rules.

(viii) Rule 12(5) of the Rules is not illegal on the ground that:

○ It gives undue emphasis to educational qualification, or

○ It does not consider the service record, or

○ More marks have been allotted for doctorate degree in selection of head of an institution than for doctorate degree in Selection of a teacher.

(ix) The Board while calculating quality point marks has not given marks for the postgraduate degree twice. In those cases where candidates have two post graduate degrees, the Board has taken percentage of that post-graduate degree which was higher. There is no illegality in doing so.

(x) The Board has not made reservation region-wise. Any one from any part of the State can apply for being considered in any institution at any part of the state. The Board has merely advertised the vacancies, processed the same, and declared the result region-wise in order to obviate administrative difficulty for considering the names of two senior most teachers in the same college. There is no illegality in this.

(xi) There was conflict between the Hindi and the English version of the Appendixes-D of the Rules. The Board has allotted quality point marks according to the Hindi version. It could be done only in accordance with the authoritative English text. But Selection cannot be set aside as the state Government has corrected the authorised English. The State Government was competent to do so.

DIRECTIONS

145. In view of my conclusions in preceding paragraph:

(i) All writ petitions-subject to observations made under heading ‘A’ CLARIFICATION’ (Paragraphs No. 121 to 123) are dismissed.

(ii) Stay orders (if any) in all writ petitions (Appendix-1) are vacated (I understand that in some writ petitions there were no stay orders). The Board may finalise selections/appointments subject to the orders of regularisation of the persons covered under the Act.

(iii) The proceeding for regularisation (if any) in any particular Institution may be finalised first under the Act and the appointment may be made in that institution only if regularisation is rejected.

APPENDIX-1

146. The relevant sections of UP Secondary Education Services Commission and Selection Board Act, 1982 (the Act), as amended time to time unless specifically indicated, are as follows. The Act was amended by UP Ordinance 19 of 2000 during pendency of the writ petitions but is not relevant for the controversy in issue and is omitted.

147. Section 2 : In this Act—

(k) Teacher’ means a person employed for imparting instruction in an Institution and Includes a principal or a Headmaster.

(1) ‘Year of recruitment'means a period of twelve months commencing from first day of July of a calendar year.

148. Section 9 : Power and duties of the Board; The Board shall have the following powers and duties namely—

(a) to prepare guidelines on matters relating to the method of direct recruitment of teachers;

(1) to perform such other duties and exercise such other powers as may be prescribed or as may be incidental or conducive to the discharge of its functions under this Act or the rules or regulations made thereunder.

149. Section 10 : Procedure of selection by direct recruitment—

(1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes. Scheduled Tribes and other Backward classes) Act, 1994 and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed.

150. Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1).

151. Section 16 and 18 prior to by UP Act No. 1 of 1993 were as follows:—

Section 16: Appointments are to be made only on recommendations of the Commission or the Board:—

1245 Notwithstanding anything to the contrary contained in the Intermediate Education Act,

1921 or the Regulations made thereunder but subject to the provisions of Sections 18, 21-B, 21-C, 21-D, 33 and 33-A.

(a) every appointment of a teacher specified in the Scheduled shall, on or after July 10, 1981, be made by the management only on the recommendation of the Commission:

(b) every appointment of a teacher (other than a teacher specified in the Schedule) shall on or after July 10, 1981, be made by the management only on the recommendation of the Board.

152. Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall apply with the modification that in sub-section (2) of the aforesaid section, for the words ‘six months’ the words ‘two years’ shall be deemed to have been substituted

(2) Every appointment of a teacher, in contravention of the provisions of sub-section (1), shall be void.

153. Section 18. Ad hoc Teachers (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and

(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or

(b) the post of such teacher has actually remained vacant for more than two months, then the management may appoint by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made there under.

(2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression Board for the expression Commission.”

(3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely—

(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post.

(b) when the period of one month referred to in sub-section (4) of Section 11 expires.

(c) thirtienth day of June following the date of such ad hoc appointment.

154. The word ‘appointment’ appearing in Section 16 has to be construed in harmany with the provisions of the two Acts, particularly Sections 10 and 11 of the new Act and Section 16G of the Intermediate Education Act. Words take their colour from the context in which they appear, The expression ‘appointment’ in its widest sense would, no doubt, include a transfer also but considering the context and the object of the new Act the word ‘appointment’ as it appears in Section 16 cannot comprise an appointment through transfer or an appointment of say, a Government Official on deputation to a recognised Institution.

155. Section 16 does not depend for its operation on fulfillment of any condition precedent or making of a provision, the language of sub-section (2) of Section 15 is clear and leaves no room for doubt that the appointment to be made against the provisions of the Ordinance would be void.

156. The expression ‘void’ used in sub-section (2) of Section 16 is very material. In the strict sense the word ‘void’ means nullity.

157. UP Act No. 1 of 1993 substituted Section 16 and deleted Section 18 of the Act by Sections 11 and 13. All sections (except Section 13 that deleted Section 18 of the Act) of the Act No. 1 of 1993 were enforced from 7-8-1993. Section 13 was never enforced. Section 16 as substituted and 13 that deleted Section 18 of the Act are as follows:—

16. Appointment to be made only on the recommendation of the Board.— (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of Sections 21-B, 21-C, 21-D. 33, 33-A and 33-B, every appointment of a teacher, shall, on or after the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992, be made by the Management only on the recommendation of the Board.

158. Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921 shall mutatis mutandis apply.

159. Provided further that the appointment of a teacher by transfer from one Institution to another, may be made in accordance with the regulations made under clause (c) of sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.

(2) Any appointment made in contravention of the provisions of sub-section (1) shall be void.

160. Omission of Section 18 : Section 18 of the Principal Act, shall omitted:

Section 16 was again amended and Section 18 was newly added by Sections 7 and 9 of the UP Act No. 15 of 1995. These are as follows:—

7. Amendment Section 16:

In Section 16 of the Principal Act in subsection (1)—

(a) for the words and figures “subject to the provisions of Section 21-B” the words and figures “subject to the provisions of Section 18, 21-B” shall be substituted;

(b) for the words and figures “Uttar Pradesh Secondary Education Service Commission and Selection Boards (Amendment) Act, 1992 be made by the Management only on the recommendation of the Board, “the words and figures “Uttar Pradesh Secondary Education Services Selection Boards (Amendment) Act, 1995 be made by the Management only on the recommendation of the Commission”, shall be substituted;

(c) after the second proviso, the following proviso shall be inserted namely:—

“Provided also that the dependent, of a teacher or other employee of an institution dying in harness, who possesses the qualifications prescribed under the Intermediate Education Act, 1921 may be appointed as teacher in Trained Graduate's Grade in accordance with the regulations made under sub-section (4) of Section 9 of the said Act.”

9. Substitution of Section 18—For Section 18 of the principal Act the, the following section shall be substituted, namely:—

18. Ad hoc teachers:— (1) Where the Management has notified a vacancy to the Commission in accordance with sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner hereinafter provided in this section.

(2) A teacher other than a Principal Head master, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee re ferred to in sub-section (8).

(3) A teacher other than a Principal or Headmaster, who is to be appointed by pro motion, may in the prescribed manner be appointed by promoting the senior-most teacher, possessing prescribed qualifications—

(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in the lecturer's grade;

(b) in the Certificate of Teaching grade, as teacher in the trained graduate's Grade, in the case of a vacancy in the Trained graduate's grade.

(4) A vacancy in the post of a Principal maybe filled by promoting the senior-most teacher in the lecturer's grade.

(5) A vacancy in the post of a Headmaster may be filled by promoting the senior-most teacher in the trained graduate's grade;

(6) For the purposes of making appointments under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward classes) Act, 1994, and, as soon as may be thereafter, intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools and if the Management fails to intimate the vacancies and the post of a teacher has actually remained vacant for more than three months; the District Inspector of Schools may, subject to such directions as may be issued by the Director and after verification from such institution or from his own record, determine such vacancies himself;

(7) The District Inspector of Schools shall, on receipt of Intimation of vacancies or as the case may be, after determining the vacancies under sub-section (6), forward the same to the Deputy Director of Education in charge of the Region, who shall invite applications from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad hoc appointment of the post of teachers other than Principal or Headmaster in such manner as may be prescribed.

(8)(a) For each region there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment of comprising—

(i) Regional Deputy Director of Education;

(ii) Regional Deputy Director of Education (Second);

(iii) Regional Assistant Director of Education (Basic).

The Regional Deputy Director of Education who is senior shall be the Chairman.

(b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the Institutions and recommend their names to the management for appointment under sub-section (2).

(c) The criteria and procedure for selection of candidates and the manner of preparation of list of the selected candidates and their allocation to the institution shall be such as may be prescribed.

(9) Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission joins the post.

(10) The provisions of Section 21-D shall mutatis mutandis apply to the teachers who are to be appointed under the provisions of this Section.”

161. Sections 16 and 18 were again amended by Sections 8 and 9 of the UP Act No. 25 of 1998.

162. These are as follows:—

8. Amendment of Section 16 : In Section 16 of the principal Act, in sub-section (1), for the words and figures “Section 18, 21-B, 21-C. 21-D, 33, 33-A and 33-B every appointment of a teacher, shall on or after the date of commencement of the Uttar Pradesh Secondary Education Service Selection Board (Amendment) Act, 1995, be made by the Management only on the recommendation of the Commission the words and figures-Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998 be made by the Management only on the recommendation of the Board” shall be substituted.

9. Amendment of Section 18 : In Section 18 of the principal Act—

(a) in sub-section (1) for the word “Commission” the word “Board” shall be substituted;

(b) in sub-section (a), for clause (a) the following clause shall be substituted namely:

“(a) For each region there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruiment comprising—

(i) Regional Joint Director of Education;

(ii) Regional Deputy Director of Education (Secondary);

(iii) Regional Assistant Director of Education (Basic).

The Regional Joint Director of Education shall be the Chairman.”

(c) in sub-section (9) for the word “Commission” the word “Board” shall be substituted.

163. Section 32—Applicability of U.P Act 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 made thereunder) shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher.

164. Section 33-A as it stood after enforcement of UP Act No. 1 of 1993 was as follows:—

Section 33-A. Regularisation of certain appointments— (1) Every teacher directly appointed, before the commencement of the Uttar Pradesh Secondary Education Service Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc 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 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 date of such commencement, 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 up to the date of such commencement.

(1-A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) 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 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 ad hoc appointment to the date of such commencement.

(1-B) Every teacher directly appointed after June 12, 1985 and before May 13, 1989 on ad hoc basis against a substantive vacancy in the Certification of Teaching Grade, in accordance with the paragraph-2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) 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 ad hoc appointment to the date of such commencement.

(1-C) Every teacher appointed by promotion or by direct recruitment before July, 31, 1988 on ad hoc basis against a substantive vacancy in accordance with Section 18, 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 date of commencement of the Uattar 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 ad hoc appointment to the date of such commencement.

(2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1) or (1-A) or (1-B) or (1-C), shall be deemed to be on probation from the date of commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C) as the case may be.

3. Nothing in this section shall be construed to entitle any teacher to substantive appointment—

(a) if on the date of commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C) as the case may be, 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 the Principal or Head Master of the Institution concerned.

165. 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.

33-B. Regularisation of certain other appointments—

(1) Any teacher, other than the Principal or Headmaster, who—

(a)(i) Was appointed by promotion or by direct recruitment in the Lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the certificate of Teaching grade on or before May 13, 1989 against a short term vacancy in accordance with paragraphs of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy; or.

(ii) Was appointed by direct recruitment on or after July 14, 1981 but not later than July, 12, 1985 on ad hoc basis against a substantive vacancy in the Certificate of Teaching Grade through advertisement and as such appointment was approved by the Inspector; or

(iii) Was appointed by promotion or by direct recruitment on or after July, 31, 1988 but not later than May 14, 1991 on ad hoc basis against a substantive vacancy in accordance with Section 18 (as it stood before its substitution by the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Second Amendment) Act. 1992).

(b) Possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921;

(c) has been continuously serving the Institution from the date of such appointment up to the date of commencement of the Act referred to in sub-clause (iii) of Clause (a);

(d) is not related to any member of the management or the Principal or Headmaster of the Institution concerned in the manner specified in the explanation to sub-section (3) of Section 33-A.

(e) has been found suitable for appointment in a substantive capacity by a selection Committee constituted under sub-section (2), shall be given substantive appointment by the management.

(2)(a) For each region, there shall be a Selection Committee comprising—

(i) Regional Deputy Director of Education of that region, who shall be the Chairman.

(ii) One officer holding a Group ‘A’ post (specified as such by the State Government from time to time) in any department other than Education Department, to be nominated by the State Government.

(iii) Regional Inspectors of Girls School of that region:

166. Provided that the Inspector of the district shall be co-opted as a member while considering the cases for regularisation of that district.

(4) The Selection Committee constituted under clause (a) shall consider the case of every such teacher and on being satisfied about his eligibility and suitability in view of the provisions of sub-section (1) shall, subject to the provisions of sub-section (3) recommend his name to the Management for appointment under sub-section (1) in a substantive vacancy.

(3)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment.

(b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first.

(5) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.

(6) A teacher who is not found suitable under sub-section (9)(1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.

(6) Nothing in this section shall be construed to entitle any teacher to substantive appointment if on the date of commencement of the Act referred to in sub-clause (iii) of Clause (a) of sub-section (1), such vacancy had already been filled or selection for such vacancy had already been made in accordance with this Act.

167. Section 33-C. Regularisation of certain more appointments.

(1) Any teacher who:—

(a)(i) was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade.

(ii) was appointed by promotion on or after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of a Prinicipal or Headmaster in accordance with Section 18;

(b) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921.

(c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998.

(d) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2);

shall be given substantive appointment by the Management.

(2)(a) For each region, there shall be a Selection Committee comprising—

(i) Regional Joint Director of Education of that region, who shall be the Chairman,

(ii) Regional Deputy Director of Education (Secondary) who shall be a member.

(iii) Regional Assistant Director of Education (Basic) who shall be a member;

In addition to above members the District Inspector of Schools of the concerned district shall be co-opted as member while considering the cases for regularisation of that district.

(b) The procedure of selection for substantive appointment under sub-section (1) shall be such as may be prescribed.

(3)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment.

(b) if two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first.

(4) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.

(5) A teacher who is not found suitable under sub-section (1) and teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.

(6) Nothing in this section shall be construed to entitle any teacher to substantive appointment if on the date of commencement of the Ordinance referred to in clause (c) of sub-section (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act.

168. Section 35. Power to make rules— The State Government may by notification, make rules for carrying out the purposes of this Act.

APPENDIX—2

169. The relevant rules of UP Secondary Education Services Selection Board Rules, 1998 are mentioned below.

170. Rule 2. Definitions: In these rules, unless there is anything repugment in the subject or context.

(c) ‘Joint Director’ means the Joint Director of Education, incharge of a region;

171. Rule-4 : Age: A candidate For direct recruitment to a post of teacher must have attained the age of twenty-one years on the first day of July of the calendar year in which the vacancies are advertised by the Board or by the Joint Director, as the case may be.

172. Rule-5 : Academic Qualification: A candidate for appointment to a post of teacher must possess qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921.

173. Rule-11 : Determination and notification of vacancies— (1) For the purposes of direct recruitment to the post of teacher, the management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, to the Board in the management hereinafter provided.

2(a) The statement of vacancies for each category of post to be filled in by direct recruitment including the vacancies that likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix “A” by the Management to the Inspector by July, 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade, and group wise in respect of vacancies of trained graduate grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 8, with a copy thereof to the Joint Director Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:

Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July 25, 1998.

174. Explanation — For the purposes of the sub-rule the word group-wise in respect of the trained graduate grade means in accordance with the following groups, namely:

(a) Language– This group consists of the subject of Hindi, Sanskrit, Urdu, Persian and Arabic;

(b) Science– This group consists of the subjects of Science and mathematics;

(c) Art and Craft

(d) Music

(e) Agriculture

(f) Home Science

(g) Physical Education

(h) General– This group consists of the subject not covered in any of the foregoing group.

(b) With regard to the post of Principal or Headmaster, the Management shall also forward the names of two senior-most teachers, along with copies of their service records (including character rolls) and such other records or particulars as the Board may require from time to time.

175. Explanation:— For the purpose of this sub-rule “senior-most teacher” means the senior-most teachers in the post of highest grade in the institution, irrespective of total service put in the institution.

(3) If, after the vacancies have been notified under sub-rule (2), any vacancy in the post of a teacher occurs, the Management shall, within fifteen dayes of its occurrence, notify to the Inspector in accordance wifh; the said sub-rule and the Inspector shall within ten days of Its receipt by him send it to the Board.

(4) Where, for any of recruitment, the Management does not notify the vacancies by the date specified in sub-rule (2) or falls to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such Institution in accordance with sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.

12. Procedure for direct recruitment.

(1) The Board shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies Including those reserved for candidates belonging to Scheduled Caste, Scheduled Tribes and Other Backward Classes of citizens in at least two daily newspapers, having wide circulation in the State, and call for the applications for being considered for selection in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Headmaster of a High School, the name and place of the institution shall also be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any institution or institutions and for no other institution, he may mention the fact in his application.

(2) The Board shall scrutinize the applications and in respect of the post of teacher in lecturers and trained graduates grade, shall conduct written examination. The written examination shall consist of one paper of general aptitude test of two hours duration based on the subject. The centres for conducting written examination shall be fixed in district headquarters only and the invigilators shall be paid honorarium at such rate, as the Board may like to fix.

(3) The Board shall evaluate the answer sheets through examiner to be appointed by the Board or through Computer and the examiner shall be paid honorarium at the rate to be fixed by the Board.

(4) The Board shall prepare list for each category of posts on the basis of quality points specified in Appendix ‘B’ or Appendix ‘C as the case may be, marks in written examination and marks for experience follows:

(i) 30 per cent marks on the basis of quality points;

(ii) 40 per cent marks on the basis of the written examination; and

(ii) 20 per cent marks for experience more than the required experience in such manner that 4 marks shall be allotted for having doctorate's degree and 2 marks shall be given for each year of such experience with maximum of 16 marks.

176. Note (1) The teaching experience for this purpose shall be counted only for the recognised High School/Intermediate Colleges or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Headmaster and countersigned by the District Inspector of Schools or Zila Basic Shiksha Adhikari, as the case may be, with full name of the countersigning authority:

(2) Any wrong information submitted in this regard shall make the applications of such candidates liable to be rejected and for this the candidate himself shall be solely responsible.

(5) The Board shall, in respect to the selection for the post of Headmaster and Principal allot the marks in the following manner—

(i) 60% marks on the basis of quality points specified in Appendix ‘D’—

(ii) 20 per cent marks for having experience more than the required experience, 1 marks for each research paper published with a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks; and

(iii) 10 per cent marks for having doctorate degree:

Note — For the purpose of calculating experience, the service rendered as Headmaster of Junior High School or as Assistant Teacher in High School/Intermediate college shall be counted in the case of selection of Headmaster and for selection of Principal, the service rendered as Headmaster of a High School or as a Lecturer shall only be counted. The provision of sub-rule (4) of Rule 12 regarding the certificate of experience shall mutatis mutandis apply.

(6) The Board, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and Other Backward Classes of citizens in respect of the post of teacher in lecturers and trained graduates grade, call for Interview such candidates who have secured the maximum marks under sub-clause (4) above and for the post of Principal/Headmaster, call for interview such candidates who have secured maximum marks under sub-clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies.

Provided that in respect of the post of the Principal or Headmaster of an institution the Board shall also in addition call for Interview two senior-most teachers of the institution whose names are forwarded by the Management through Inspector under clause (b) of sub-rule (2) of Rule 11.

(7) The Board shall hold interview of the candidates and 10 per cent marks shall be allotted for interview. The marks obtained in the written test and the quality points by the eligible candidates shall not be disclosed to the members of the interview Board:

Provided further that in the interview, ten per cent shall be divided in the following manner:

(i) 4 per cent marks on the basis of subject/general knowledge;

(ii) 3 per cent marks on the basis of personality: and

(iii) 3 per cent marks on the basis of ability of expression.

(8) The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under sub clause (4) or sub-clause (5) above, as the case may be, with the marks obtained in interview. The panel for the post of Principal or Headmaster shall be prepared institution-wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for the posts in the lecturers and trained graduates grade, it shall be prepared subjectwise and groupwise respectively, if two or more candidates obtain equal marks, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of the candidate who is older in age shall be placed higher. In the panel for the post of Principal or Headmaster, the number of names shall be three times of the number of the vacancy and for the post of teachers in the lecturers and trained graduates grade, it shall be larger (but not larger than twenty-five per cent) than the number vacancies.

Explanation— For the purposes of this sub-rule the word groupwise means in accordance with the groups specified in the Explanation to sub-rule (2) of Rule 11.

(9) At the time of interview of candidates for the post of teachers in the lecturers and trained graduate grade Board shall after showing the list of the institution which have notified the vacancy to it, require the candidate to give if he so desires the choice of not more than five such institutions in order of preference, where, if selected he may wish to be appointed.

(10) The Board shall after preparing the panel in accordance with sub-rule (8), allocate the institution to the selected candidates in respect of the posts of teachers in lecturers and trained graduates grade in such manner that the candidates whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with sub-rule (9). Where a selected candidate cannot be allocated any of the Institution of his preference in the ground that the candidate placed higher in the panel have already been allocated such institutions and there remains no vacancy in them, the Board may allocate any institution to him as it may deem fit.

(11) The Board shall forward the panel prepared under sub-rule (8) along with the name of the institution allocated to selected candidates in accordance with sub-rule (10) to the Inspector with a copy thereof to the Joint Director and also notify them on its notice board.

APPENDIX-3

177. Appendix B, C and D in Hindi of the UP Secondary Services Selection Board Rules. 1998 are as below.

APPENDIX-4

Appendix B, C and D in Hindi of the U.P Secondary Services Selection Board Rules. 1998 are as below.

APPENDIX ‘B’

178. Quality points for selection of teachers by direct recruitment/ad hoc appointment by direct recruitment. For trained graduates

Grade:

On Quality Points 1. High School The percentage of Marks 10 2. Intermediate The percentage of marks × 2 10 3. Graduate degree The percentage of marks × 3 10 4. Others Training First Second Div. Third Div. (a) Theory 12 06 03 (b) Practical 12 06 03 5. Post Graduate Degree 15 10 05

Appendix-C

179. Quality points for selection of teacher by direct recruitment ad hoc appointment by direct recruitment. For Lecturer Grade—

Name of Examination Quality points 1. High School The percentage of Marks 10 2. Intermediate The percentage of marks × 2 10 3. Graduate degree The percentage of marks × 3 10 4. Post Graduate Degree The percentage of marks × 4 10 5. Others Training First Div. Second Div. Third Div. (a) Theory 12 06 03 (b) Practical 12 06 03

Appendix ‘D’

(See Rule 12(5))

180. Quality points for selection of Principal of an Intermediate College/Headmaster of School.

Name of Examination Quality points 1. High School The percentage of_Marks 10 2. Intermediate The percentage of marks × 2 10 3. Graduate degree The percentage of marks × 3 10

4. Post Graduate Degree The percentage of marks × 4 10 Others First Div. Second Div. Third Div. 5. Training (a) Theory 12 06 03 (b) Practical 12 06

APPENDIX-5

181. The relevant part of regulation 1 Chapter II and Appendix A are as follows:

CHAPTER II

APPOINTMENT OF HEADS OF INSTITUTIONS AND TEACHERS (Section 16E, 16F and 16FF)

182. Regulation 1. The minimum qualifications for appointment as Head of Institution and Teachers in any recognised Institution, whether by direct recruitment or otherwise, shall be as given in Appendix-A.

Appendix-A

183. Minimum Qualifications for appointment of Head Master and Teachers in Private Recognised Higher Secondary Schools.

Essential Qualification

Sl. No. Name of the Post & Educational Training XX Experience Experience Age Desirable Qualification 1 2 3 4 5 Head of the institution (1) Trained M.A or M. Sc. or M. Com. or M. Sc. (Agri) or any equivalent post-graduate or any other degree which is awarded by corporate body specified in above mentioned para one and should have at least teaching experience of four years in classes 9 to 12 in any training institute or in any institution or University specified in above mentioned para one or in any degree college affiliated to such University or institution, recognized by Board or any institution affiliated from Boards of other States or such other institutions whose examinations are recognised by the Board, or should the condition is also that he/she should not be below 30 years of age. Minimum years 30

APPENDIX-6

184. Relevant paragraph of the guidelines issued by the Board are as follows:

UTTAR PRADESH MADHYAMIK SHIKSHA SEWA CHAYAN BOARD, ALLAHABAD

185. Interview and procedure for selection of heads of Institutions.

For senior teachers only:

15. The record of the two senior teachers will not be presented before the interview board.

16. The interview board will award marks to these candidates also as explained above.

17. In case of senior teachers for their service records received and on the basis of quality marks awarded, separate Board will be constituted to complete the proceeding before preparation of final panel.

18. For award of quality points the total procedure will be the same as has been adopted for direct recruits. On the basis of service records of the senior teachers obtained from the Management. For the years in which Character roll entries, such as excellent, very good, good, satisfactory have been awarded two marks for each year and maximum 20 marks will be awarded.

19. Thus for those who have experience more than the requisite experience of four years will be given maximum 20% marks. In case of adverse entry the service for the particular year will not be accepted.

Preparation of Panel:

22. The selection committee will prepare institution wise panel of three persons each.

23. The marks obtained in interview will be added to the marks recorded in the computer sheets of being fully satisfied with the correction of the quality points once again. This scrutiny will be based on the scrutiny of the original certificates and marksheets. Thus a list of candidates who have appeared for direct recruitment in a division or group. Thus a merit list of candidates who have appeared in a division and group will be prepared. As per Rule XII of the Rules an institution-wise panel on the basis of preference will be prepared on the basis of merit.

24. In case of an institution in which one of the two senior most teacher is selected, which means that the name of that person on number one in order of merit of candidate interviewed for that institution, the name of that selected person will be placed on number one in the panel for that institution. Thereafter on number two and three the names of the direct recruits as per details given above (not of the merit list of the division) will be placed.

25. The group-wise panel of Institutions situated in a division will be prepared by the selection committee and it will get ap proved by the Chayan Board. After the panel has been approved by the Board will be notified by the Secretary,

APPENDIX-7

186. Relevant parts of Section 2 and 3 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes. Scheduled Tribes and other Backward classes) Act, 1994 and are as follows:

2. Definitions:—

(a) “public services and posts” means the services and posts in connection with the affairs of the State and includes services and posts in—

(iv) an educational institution owned and controlled by the State Government or which receives grants in aid from the State Government, including a university established by or under a Uttar Pradesh Act, except an institution established and administered by minorities referred to in clause (1) of Article 30 of the Constitution.

187. Section-3. Reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes.— (1) In public services and posts there shall be reserved at the stage of direct recruitment, the following percentages of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes; Scheduled Tribes and other Backward Classes of citizens:—

(a) in the case of Secheduled Castes twenty-one per cent;

(b) In the case of Scheduled Tribes two per cent;

(c) in the case of other backward classes of citizens twenty seven per cent;

188. Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Schedule II.

APPENDIX-8

189. Article 348 of the Constitution of India is as follows:

348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bill, etc— (1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides—

(a) all proceedings in the Supreme Court and in every'High Court

(b) the authoritative texts—

(i) of all Bills to be introduced or amendments there to to be moved in either House of Parliament or in the House or either House of the Legislature of a State,

(ii) of all Acts passed by Parliament or the Legislature of a State and of all ordinances promulgated by the President or the Governor of a State, and

(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the legislature of a State shall be in the English language.

(2) Notwithstanding anything in subclause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:

Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.

(3) Notwithstanding anything in subclause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by the Legislature of the State or in Ordinances promulgated by the Governor of the State or in and order rule, regulation or bye-law referred to in paragraph (iii) of that subclause, a translation of the same in the English language published under the authority of the Governor of the State in the official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this Article.

APPENDIX-9

190. Details of the Writ Petitions that are being decided by this judgment are as follows:

191. Order accordingly.