# C/m Intermediate College Natauli & Anr v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 923
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-01
- **Case number:** Writ-A No. 8155 of 2022
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-intermediate-college-natauli-anr-v-state-of-u-p-ors-49755
- **Pages:** 25

## Headnote

Law
-
Appointment/
Selection - U.P. Intermediate Education Act,
1921 - The Uttar Pradesh Secondary Education
(Services Selection Board) Act, 1982 - Sections
2(a), 2(1), 10, 11, 12, 16, 34 & 35 - The Uttar
Pradesh Secondary Education Services Selection
Board Rules, 1998 - Rules 10, 11, 12, 12(6),
12(8) & 13 - The U.P. Secondary education
Services
Selection
Board
(Procedure
and
Conduct of Business) First Regulations, 1998 -
Regulation 8(6) - It is well settled that the
requirement of eligibility is to be satisfied
as on the cut off date prescribed in the
advertisement and subsequently acquired
qualification would not make a person
eligible. (Para 65)

In
present
case,
the
eligibility
for
consideration
in
terms
of
the
Advertisement No. 03 of 2013 has to be
the
eligibility
as
on
the
last
date
prescribed
in
the
advertisement
and
subsequently acquired qualification would
not
make
the
person
eligible
for
consideration for selection. The steps taken
by the Board in March, 2022 whereby it called
the list of two senior most teachers of the
various institutions with a view to give them a
chance to participate in the selection process in
terms of the right vested in them by virtue of
Rule 12(6) of the 1998 Rules, were nothing but
a band aid solution on a deep wound and were
bound to fail as the said teachers, did not have
the eligibility as they were admittedly not the
senior
most
teachers
in
terms
of
the
requirement as specified in the Advertisement
No. 03 of 2013. (Para 39, 67)

Criteria for selection cannot be altered by
the authorities in the middle or after the
process of selection has commenced and
the only proper recourse was to recall the
foregoing advertisement and issue a fresh
advertisement as per the Rules. (Para 48)

B. The Board has clearly restricted the
pool of available candidates available for
selection
and
has
not
followed
the
mandate as prescribed u/s 11 of the 1982
Act of conducting the written examination
as soon as they are notified. (Para 66)

Rule 13 makes it mandatory for the Inspector to
make the appointments immediately after the
selection is done. From the scheme of the Act
and the Rules framed thereunder, it is clear that
the powers conferred upon the Board for
making the selection to the post of Headmaster
have to be initiated by issuance of an
advertisement and has to culminate in the
selections made by the Board after following the
mandatory provisions as contained in Rule 12.
The said exercise has to be conducted by
the Board as soon as the vacancies
notified u/s 10(1) of the 1982 Act, which
924 INDIAN LAW REPORTS ALLAHABAD SERIES
also have a direct relation with the year of
recruitment as defined u/s 2(l) to the said Act.
Thus in terms of the mandate of the Act
and the 1998 Rules time is of some
essence. (Para 36)

In
the
present
case
admittedly
the
advertisement was issued in the year 2013, that
being step taken by the Board in terms of Rule
12 after the

## Text

_Characters 0–39,989 of 85,367. This is a partial read: ask again with offset=39989 for what follows._

2 All. C/m Intermediate College Natauli & Anr. Vs. State of U.P. & Ors.
923
Constitution of India and, as such, the
theory of no estoppel against statute is not
applicable.

13. For the reasons mentioned above,
in our view, the impugned order dated
October 14, 2022 passed by the learned
Single Judge cannot be legally sustained.
The same is hereby set aside and as a
consequence, the writ petition filed by
respondent no.1 is dismissed.

14.

The
Special
Appeal
is,
accordingly, allowed.
----------
(2023) 2 ILRA 923
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.02.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 8155 of 2022
along with other connected Cases

C/m Intermediate College Natauli & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rakesh Chandra Tewari

Counsel for the Respondents:
C.S.C., Rishabh Tripathi

A.
Education
Law
-
Appointment/
Selection - U.P. Intermediate Education Act,
1921 - The Uttar Pradesh Secondary Education
(Services Selection Board) Act, 1982 - Sections
2(a), 2(1), 10, 11, 12, 16, 34 & 35 - The Uttar
Pradesh Secondary Education Services Selection
Board Rules, 1998 - Rules 10, 11, 12, 12(6),
12(8) & 13 - The U.P. Secondary education
Services
Selection
Board
(Procedure
and
Conduct of Business) First Regulations, 1998 -
Regulation 8(6) - It is well settled that the
requirement of eligibility is to be satisfied
as on the cut off date prescribed in the
advertisement and subsequently acquired
qualification would not make a person
eligible. (Para 65)

In
present
case,
the
eligibility
for
consideration
in
terms
of
the
Advertisement No. 03 of 2013 has to be
the
eligibility
as
on
the
last
date
prescribed
in
the
advertisement
and
subsequently acquired qualification would
not
make
the
person
eligible
for
consideration for selection. The steps taken
by the Board in March, 2022 whereby it called
the list of two senior most teachers of the
various institutions with a view to give them a
chance to participate in the selection process in
terms of the right vested in them by virtue of
Rule 12(6) of the 1998 Rules, were nothing but
a band aid solution on a deep wound and were
bound to fail as the said teachers, did not have
the eligibility as they were admittedly not the
senior
most
teachers
in
terms
of
the
requirement as specified in the Advertisement
No. 03 of 2013. (Para 39, 67)

Criteria for selection cannot be altered by
the authorities in the middle or after the
process of selection has commenced and
the only proper recourse was to recall the
foregoing advertisement and issue a fresh
advertisement as per the Rules. (Para 48)

B. The Board has clearly restricted the
pool of available candidates available for
selection
and
has
not
followed
the
mandate as prescribed u/s 11 of the 1982
Act of conducting the written examination
as soon as they are notified. (Para 66)

Rule 13 makes it mandatory for the Inspector to
make the appointments immediately after the
selection is done. From the scheme of the Act
and the Rules framed thereunder, it is clear that
the powers conferred upon the Board for
making the selection to the post of Headmaster
have to be initiated by issuance of an
advertisement and has to culminate in the
selections made by the Board after following the
mandatory provisions as contained in Rule 12.
The said exercise has to be conducted by
the Board as soon as the vacancies
notified u/s 10(1) of the 1982 Act, which
924 INDIAN LAW REPORTS ALLAHABAD SERIES
also have a direct relation with the year of
recruitment as defined u/s 2(l) to the said Act.
Thus in terms of the mandate of the Act
and the 1998 Rules time is of some
essence. (Para 36)

In
the
present
case
admittedly
the
advertisement was issued in the year 2013, that
being step taken by the Board in terms of Rule
12 after the notification of vacancies u/s 10 of
the 1982 Act. For no good reasons, the Board
did not take any steps which they were required
to do u/s 11 of the 1982 Act and continued to
wait for about 9 years for holding the
examination. (Para 37)

The result of delay in taking steps u/s 11 is that
various candidates who were found eligible and
had applied in terms of Advertisement No. 03 of
2013 either became uninterested or otherwise
became ineligible, did not participate in the
interview. The 2 senior most teachers of the
institutions who had a vested right of being
considered for selection in terms of the right
vested in them by virtue of Rule 12(6) of the
1998 Rules and were eligible in terms of the
Advertisement also got adversely affected as the
senior most teachers had either retired or lost
interest in the process on account of inordinate
delay. Thus the pool from which the
selection were to be made got shrunk
considerably. (Para 38)

The delay caused by the Board clearly defied
the very object of enactment of the Act as it
made the field of selection restricted. The
delay caused by the Board in making
appointments has promoted ad hocism
prescribed u/s 18 which prevailed in all
these years. It was clearly contrary to the
mandate cast on the Board by virtue of Section
11 of making the process of holding written
examination as soon as the vacancies are
notified, the said action also violates the powers
conferred upon the Board to make effort for
appointment so as to attract the best possible
talent. (Para 40, 41)

C. Constitution of India: Article 14 and 16
- The rights of the citizen u/Article 14 and
Article 16 are required to be protected in the
event the action of the St. or its instrumentality
is found to be not in consonance with the
mandate of Articles 14 and 16. It is well settled
that although the St. has the freedom to take
decision for selection of the candidates,
however, it does not confer any unbridled
powers on the St. to do so without following the
procedural requirement as specified or at the
cost of fair play and on the grounds of
arbitrariness. (Para 43, 44)

Article 14 of the Constitution of India
repels any action of the St. which is
arbitrary and not in consonance with the
substantive or procedural due process.
Article 14 is the genus of which Article 16 is the
species. Article 16 casts a duty on the St. or
its instrumentality to ensure that there is
an equality of opportunities to all the
citizen (of course subject to they possessing
the qualification) in matters relating the
employment and appointment to any
office under St. without any discrimination
subject to the powers conferred upon the
St. of making provisions as prescribed u/Article
16(4), Article 16(4)(a) and Article 16(4)(b).
(Para 42, 43)

An eligible candidate has a fundamental right to
lay his claim for consideration in his own right
for recruitment to an office or post under the St.
u/Article 16(1) of the Constitution. The process
of selection not being taking place due to nonnotification by the appropriate authority, is
having a deleterious effect on the psyche of the
people. The dereliction of duty is seriously
eroding the constitutional rights u/Article 16(1)
and is a source to circumvent due process of
selection. (Para 54)

The action of the Board in making the
recruitment after nine years is violative of Article
14 of the Constitution of India. (Para 68)

D. Words and Phrases - "as soon as may
be" i.e. within the time which was
reasonably convenient or requisite - The
definition of the phrase "as soon as may be" i.e.
within the time which is reasonably requisite
would apply with full vigour to the interpretation
of Section 11(1) of the 1982 Act. The expression
"as soon as" cannot be interpreted to mean that
the action is taken after nine years, although no
time limit is fixed, the phrase "as soon as" has
to be interpreted to be within a reasonable time
2 All. C/m Intermediate College Natauli & Anr. Vs. State of U.P. & Ors.
925
in the context of recruitment to be made, the
year of recruitment and the intent for which the
advertisement is issued. (Para 66)

The selections so made have clearly deprived
the eligible candidates (two senior most
teachers) of their rights under Rule 12(6) of the
1998 Rules and also the candidates who
acquired qualifications after 2014 as they are
deprived of being considered only on account of
delay by the Board. The rights of the petitioners
have also been violated, as the appointment
through the direct recruitment is indirectly an
avenue of promotion available to the senior
most teachers which is otherwise not available
in terms of Rule 10 of 1998 Rules. The entire
process of selection is also bad as the pool from
which the selection are to be made by the Board
has got shrunk only on account of inordinate
delay in completing the process of appointment
and has thus resulted in violation of Article 16 of
the Constitution of India. (Para 69)

Writ petitions allowed. (E-4)

Precedent followed:

1. Chandgi Ram Vs University of Raj., (2001) 10
SCC 556 (Para 46)

2. Madan Mohan Sharma Vs St. of Raj., (2008)
3 SCC 724 (Para 48)

3. Maharashtra St. Road Transport Corp. & ors.
Vs Rajendra Bhimrao Mandve & ors., (2001) 10
SCC 51 (Para 48)

4.
Balprit
Singh
&
anr.
Vs
Chandigarh
Administration & ors., 2016 SCC OnLine P&H
9902 (Para 49)

5. Syed Mehedi Vs Government of NCT of Delhi
& ors., 2019 SCC OnLine Del 9015 (Para 50)

6. Naushad Anwar & ors. Vs St. of Bihar & ors.,
(2014) 11 SCC 203 (Para 51)

7. Renu & ors. Vs District and Session Judge Tis
Hazari Courts, Delhi & anr., (2014) 14 SCC 50
(Para 52)

8. K. Shekhar Vs V. Indiramman & ors., (2002)
3 SCC 586 (Para 53)
9. Pradip Gogoi & ors. Vs St. of Assam & ors.,
(1998) 8 SCC 726 (Para 54)

10. Jagdish Prasad Vs St. of Rajasthan & ors.,
(2011) 7 SCC 789 (Para 55)

11. Sachin Kumar & ors. Vs Delhi Subordinate
Service Selection Board (DSSSB) & ors., (2021)
4 SCC 631 (Para 55)

12. Dr. Ms. O.Z. Hussain Vs U.O.I., 1990 Supp
SCC 688 (Para 56)

13. F.C.I. & ors. Vs Parashotam Das Bansal &
ors., (2008) 5 SCC 100 (Para 56)

14. Deepak Agarwal & anr. Vs St. of U. P. &
ors., 2011) 6 SCC 725 (Para 56)

15. Abdul Jabar Butt Vs St. of J.&K., 1957 SCR
51 (Para 66)

Precedent distinguished:

1. Vivek Kumar Upadhyay Vs St. of U.P. & ors., Writ-A
No. 364 of 2022, decided on 25.02.2022 (Para 11, 57)

2. Mohan Singh & ors. Vs St. of U.P. & anr., Writ-A
No. 700 of 2022, decided on 20.06.2022 (Para 58)

3. Manish Kumar Tripathi Vs St. of U.P. & anr.,
Writ-A No. 14975 of 2019 (Para 59)

4. St. of Har. & ors. Vs Ajay Walia (Ms), (1997)
6 SCC 255 (Para 60)

5. Ramesh Chandra Shah & ors. Vs Anil Joshi &
ors., Civil Appeal Nos. 2802-2804 of 2013
arising out SLP (C) Nos. 30581 - 30583 of 2012,
decided on 03.04.2013] (Para 61)

6. Sankar Mondal Vs The St. of West Bengal &
ors., Civil Appeal No. 1924 of 2010, decided on
15.02.2022 (Para 62)

7. U.O.I. & ors. Vs N. Murugesan & ors., (2022)
2 SCC 25 (Para 63)

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. This bunch of petitions have been
filed raising various grounds to the
926 INDIAN LAW REPORTS ALLAHABAD SERIES
appointments made in terms of the
Advertisement No.03 of 2013 published by
the respondent no.2 for filling up the posts
of Principals in the recognized Intermediate
Colleges and the High Schools recognized
under
the
provisions
of
The
U.P.
Intermediate Education Act, 1921 and in
terms of the powers conferred upon the
Board by virtue of The Uttar Pradesh
Secondary Education (Services Selection
Boards) Act, 1982 (in short 'the 1982 Act')
read with The Uttar Pradesh Secondary
Education Services Selection Board Rules,
1998. In the various writ petitions, there are
numerable grounds of challenge to the
selections made, however, there is one
common thread running across all the writ
petitions being the filling up the vacancies
initiated by the Advertisement No.03 of
2013 and culminating in the appointments
made in the year 2022 after about 9 years is
itself arbitrary and violative of Articles 14
and 16 of the Constitution of India. I
propose to decide this common question
that has arisen in all the writ petitions
pertaining to the selections made in
pursuance to the Advertisement No.03 of
2013, as such, all the writ petitions are
being decided by means of this common
order.

2. For the sake of brevity, the
averments as made in leading Writ-A
No.1612 of 2022 are being referred.

3. The petitioner in the said writ
petition claims to be appointed in the
institution known as Rajarshi Tandon Inter
College, Ram Nagar, Athgawan, District
Pratapgarh which is a recognized institution
under the provisions of U.P. Intermediate
Education Act and drawn salary on the post
of teacher. The respondent no.2 issued an
Advertisement No.03 of 2013 intending to
fill up the post of Principal in the added
intermediate
colleges.
The
said
advertisement is appended as Annexure-1
to the writ petition. In terms of the said
advertisement, applications were invited
from
the
eligible
candidates
upto
31.01.2014. It is informed that the said date
was subsequently extended to February,
2014. The name of the institutions where
the posts of Principals were vacant are also
appended along with Annexure No.1.

4. It is stated that despite issuing an
advertisement no steps were being taken by
the respondent no.2 and suddenly in the
year 2022, a decision was taken to call for
two senior most teachers to fill their details
on the online portal. After 10.01.2022, the
manner in filling up the form etc. was also
notified through an advertisement which is
appended as Annexure No.5 to the writ
petition. It is claimed by some of the
petitioners that the petitioners names were
sent by the Committee of Management, and
the petitioners were called for interview,
however, they were denied the permission
to undergo the interview which led to the
filing of the writ petition being Writ-A
No.372 of 2022. The said writ petition was
decided along with other writ petitions by
means of a common judgment dated
25.02.2022, whereby the High Court
framed two issues on the pleadings and the
submissions made by the parties which are
as follows:

"1. Whether the petitioners were
eligible
and
within
the
zone
of
consideration
for
selection
and
appointment on the post of Principal which
fell vacant in their Institution under Rule
11-(2)(b) of the U.P. Secondary Education
Services Selection Board, Rules, 1998 and
were advertised in pursuance to the
Advertisement No. 1 of 11 or Advertisement
No. 3 of 2013, as the case may be ?
2 All. C/m Intermediate College Natauli & Anr. Vs. State of U.P. & Ors.
927

2. Whether the eligibility of petitioners
and their claim to be in the zone of
consideration
for
selection
and
appointment as Principal under Rule
11(2)(b) of the Rules, 1998 is to be
considered with respect to the date fixed for
calling the candidates for interview in
pursuance to the Advertisement No. 1 of
2011 or 3 of 2013, as the case may be, if
not; whether the petitioners have locus
standi to maintain these writ petitions
staking their claim for being considered in
pursuance to the said Advertisements for
appointment under Rule 11(2)(b) of the
Rules, 1998 on the post of Principal of the
Institution wherein they claim to be
working as Ad-hoc Principal as of now ?"

5. This Court ultimately decided the
aforesaid issues against the petitioners
therein holding that the petitioners were
neither the senior most teachers of the
institution at the time of advertisement nor
they were having the requisite qualification
on the date of advertisement and thus, the
writ petitions were dismissed, however,
after
dismissing
the
writ
petition,
considering the eligibility of the petitioners,
this Court proceeded to record as under:

"In view of the above discussion, this
Court is of the opinion that none of the
petitioners were amongst the two senior
most teachers of the institution as per Rule
11(2)(b) of the Rules, 1998 at the relevant
time of sending requisition hence they were
not within the zone of consideration for the
post of Principal or Headmaster advertised
vide Advertisement No. 1 of 2011 or 3 of
2013. They did not fulfill the requisite
qualification or experience at the relevant
time. Their eligibility and claim of being
within zone of consideration is not to be
fixed on the basis of date of Interview in
respect of Advertisement No. 01 of 2013 or
03 of 2013. Therefore, they do not have any
locus standi to maintain these writ petitions
in their present form, especially as, they
have
not
challenged
the
said
advertisements on the ground of inordinate
delay of about 10 or more years in holding
the selections, except in Writ - A No. 317 of
2022, where, Advertisement No. 3 of 2013
has been challenged but not on this ground
and bereft of this ground, the challenge is
not maintainable at the behest of said
petitioners, for the reasons already given,
as already discussed above.

All the questions framed are answered
accordingly.

The petitioners may if otherwise
permissible in law and if there is no order
or direction of the Courts for completing
the
selection
process
pertaining
to
Advertisement No. 03 of 2013 and if the
selection has not been completed as yet in
the sense Interview etc. has not been held,
raise a challenge on the ground of long
delay in completing the same if they are
otherwise eligible for the posts in question,
subject of course to the rights of opposite
parties to raise the plea of delay and laches
, if any etc., in this regard. As regards
Advertisement No. 01 of 2011 the selection
is
over
with
regard
to
petitioners
institution, therefore, it is too late in the day
for them.

This apart, it is also for the State
Government and/or the Board to consider
as to how far it is justified and reasonable
to keep a recruitment process pending for
almost 10 or more years, during which
many of the candidates whether they be
from one source or another, for direct
recruitment, may have become ineligible
for various reasons such as exceeding
maximum age or having retired etc. and
whether in such a scenario if the
recruitment process is not completed within
reasonable period of 2 or 3 years, should
928 INDIAN LAW REPORTS ALLAHABAD SERIES
not the advertisement be cancelled and
vacant posts be re-advertised so that others
who may have become eligible for
consideration
from
either
source
of
recruitment in the interregnum, may also
participate therein? Appropriate measures
should be taken in this regard for the
future."

6. In the light of the said liberty and
the observations made by the High Court in
the
judgment
dated
25.02.2022,
the
petitioners have filed the present petitions
challenging the advertisement itself on
various grounds including the ground of
inordinate delay in making appointments
after issuance of advertisement.

7. The submission of Sri Sharad Pathak,
the Counsel for the petitioners is based upon the
interpretation of the provisions of the U.P.
Secondary Education (Services Selection Board)
Act, 1982 and the Rules framed in pursuance to
Section 35 of the 1982 Act (U.P. Act No.5 of
1982) known as ''The Uttar Pradesh Secondary
Education Services Selection Board Rules,
1998'. The Counsel for the petitioners takes this
Court through the provisions of the 1982 Act
particularly Sections 2(a), 2(l), 10, 11, 12, 16 of
the 1982 Act. He also draws my attention to the
Rules 10, 11 and 12 framed by virtue of powers
conferred under Section 35 of the Act.

8. The first submission of the Counsel
for the petitioners is that delaying the
appointment
in
pursuance
to
the
advertisement for the period of more than 9
years itself is fatal to the entire selection
process and is contrary to the mandate of
the Act for which the Act was enacted and
is violative of Articles 14 and 16 of the
Constitution of India.

9. The Counsel for the petitioners
next submits that even otherwise the
mandatory provisions contained in Rules 11
and 12 particularly Rules 12(6) and 12(8)
have not been followed while making the
selections
in
pursuance
to
the
advertisement. He thus argues that the
advertisement and the selections made in
pursuance thereof are liable to be quashed.

10. Sri R.K. Singh Suryvanshi,
learned Counsel appearing on behalf of
Board places reliance on the counter
affidavit wherein he draws my attention to
justify the delay in making the selection
after the issuance of the advertisement in
the year 2013. The relevant paragraph no.3
of the counter affidavit, justifying the long
delay, filed by the respondent no.2 reads as
under:

"3. That the brief facts of the case are
as follows for kind consideration of this
Hon'ble Court: -

1.
That
an
advertisement
(Advertisement No. 03/2013) was published
by the Board for the appointment on the
post of Principal of the institution which
was modified on 06.02.2014 and the last
date for submission of the application form
was 25.02.2014 but the selection for the
post
of
Principal
pursuant
to
the
Advertisement No. 01/2011 was challenged
in Writ Petition No. 6550/2014 in which an
interim order was passed on 03.02.2014
which has been modified on 28.11.2018.

II. That the order passed by the
Hon'ble Single Judge dated 24.10.2018 has
been challenged in Special Appeal No.1289
of 2019 which was disposed of by this
Hon'ble Court on 08.01.2019 therefore
after selection proceeding pursuant to the
advertisement
no.01/2011
has
been
finalized. It is relevant to point out here
that due to the pendency of the writ
petition, the selection proceeding pursuant
to the advertisement no.01/2011 could not
2 All. C/m Intermediate College Natauli & Anr. Vs. State of U.P. & Ors.
929
be completed and after completion of the
selection process, final result was published
by the Board in which some of the selected
candidates have attained the age of
superannuation. It is further brought to the
notice of the Hon'ble Court that the
selection process with respect to the
Advertisement No. 01/1999-2000 was not
able to attain fruition in the stipulated
timeline for the reason of the matter being
under consideration before the Hon'ble
Court and the Hon'ble Apex Court and
after the decision of the Hon'ble Apex
Court in the case of Balbeer Kaur dated
16-05-2008, the selection process with
regard to the said advertisement was finally
completed. Similarly, the selection for
Advertisement No. 01/2011 could only be
completed after the decision of the Hon'ble
Court in Writ Petition No. 6550/2014
(Harish Chandra Dixit & others versus
State of U.P. & others) in which an interim
order was passed on 03.02.2014 which has
been modified on 28.11.2018 and order
dated 18-10-2019 passed in Special Appeal
Defective No.1289/2018 (Prem Chandra
Tripathi & others versus State of U.P. &
others). It is further brought to the notice
of the Hon'ble Court that Advertisement
No. 02/2013 and 03/2013 could not attain
finality in the stipulated time as the
written examination and Interview for the
post of Lecturer was ongoing and the
members of the Board, including the
Chairman were not present from 2017 for
a period of around one and a half year
and therefore the process for recruitment
for the Advertisement No.03/2013 could
not be completed within the stipulated
time. It is most humbly submitted before
the Hon'ble Court that the delay that has
happened in the selection process in due
to the circumstances and the situation
prevailing at the particular time and there
has been not wilful neglect or delay in the
entire proceedings, rather it is only for the
reasons as explained above that the
selection process was not able to be
finished within the stipulated time.

III.
That
in
respect
of
the
advertisement no.03/ 2013, a writ petition
being Writ-A No.10609/ 2021 was filed by
Dr. Dileep Kumar Awasthi and others vs
State of U.P. and others) which was
disposed of on 07.10.2021 with a direction
to exclude the candidates who have
attained the age of superannuation.
IV. That for completion of selection
pursuant to the advertisement no.03/2013,
a
Writ
Petition
bearing
Writ-A
No.14975/2019 was filed before this
Hon'ble Court which was disposed of on
30.09.2019 with a direction to the Board to
take appropriate steps for completion of the
selection pursuant to the advertisement
no.03/2013. In compliance of the order
passed by this Hon'ble Court dated
30.09.2019, the Board had decided to
complete
the
selection
process
by
31.01.2022. It is further stated that for non-
compliance of the order passed by this
Hon'ble
Court
dated
30.09.2019
a
Contempt Petition No.3069/2021 has been
filed in which the Hon'ble Court has passed
a detail order for completion of the
selection process and in compliance of the
aforesaid order. the Board has issued the
necessary instruction by order dated
02.01.2022 by which the District Inspector
of Schools and the management were
directed to submit the relevant papers of
two senior most teachers who were eligible
on the last date for submission of the
application form i.e. 25.02.2014 through
online mode."

11. Sri R.K. Singh Suryvanshi further
draws my attention to argue that once the
issue has been decided by this Court in the
case of Vivek Kumar Upadhyay vs State of
930 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. and others [Writ-A No.364 of 2022),
nothing remains to be adjudicated by this
Court.

12. Sri Ranvijay Singh, learned
Standing Counsel adopts the arguments of
Sri
Suryvanshi
and
justifies
the
appointments made in pursuance to the
Advertisement No.03 of 2013 despite the
long delay.

13. Sri Som Kartik Shukla, learned
Counsel appearing for some of the selected
candidates justifies the appointments and
adopts the arguments advanced by the
Counsel for the Board. He also argues that
the petitioners have no right to file the
petitions after the issues were decided by
this Court in Vivek Kumar Updhyay
(Supra).

14. Sri G.C. Verma and Sri B.K. Singh
besides adopting the arguments as raised by
Sri Sharad Pathak have pointed out certain
other discrepancies in the appointments made
in pursuance to the Advertisement No.03 of
2013; like the Board not following the
statutory period of 21 days for issuing
interview letter by registered post as provided
under Regulation 8(6) of The U.P. Secondary
Education
Services
Selection
Board
(Procedure and Conduct of Business) First
Regulations, 1998. The Board not publishing
the new list of senior most teachers after their
requisition of 16.03.2022. The portal for
scrutinizing
of
the
credential
of
the
candidates on the Board's website was closed
on 16.01.2022 and thus, the petitioners were
deprived and prevented their rights to
scrutinize the details as the requisition itself
was made on 16.03.2022.

15. It was further argued that the
Board undertook the process of selection
from 24.03.2022 to 12.04.2022, the date on
which some of the petitioners were
discharging their duties being in-charge of
the examinations being held which prevent
them from appearing in the interview. It
was further argued that the Chairman of the
Board alone has undertaken the entire
recruitment process and there was no
member in the Board duly appointed at the
time of recruitment, contrary to the
requirement of statutory strength under
Section 4 of the 1982 Act as amended.

16. As already recorded above, I
proposed to decide the writ petitions on the
common question that has arisen across the
writ petitions, that being whether the
process of selection initiated by issuance of
Advertisement
No.03
of
2013
and
culminating in the selections made in the
year 2022 will stand the scrutiny of Articles
14 and 16 of the Constitution of India on
the ground of inordinate delay.

17. To appreciate the issue that has
arisen for decision it is essential to look
into the provisions of the statutory
enactment through which the selections
have been made.

18. The State of U.P. with an intent to
regulate the educational institutions at the
intermediate stage promulgated the Uttar
Pradesh Intermediate Education Act, 1921.
The said act has undergone various
amendments from time to time in terms of
the provisions contained in the said Act.
The State of U.P. enacted and proposed to
establish a Board to take place of the
Allahabad University in regulating and
supervising the system of the high school
and the intermediate educations in the Uttar
Pradesh and for prescription of the courses.
Subsequent thereto in the year 1982, the
State of U.P. promulgated the Act known as
'The Uttar Pradesh Secondary Education
2 All. C/m Intermediate College Natauli & Anr. Vs. State of U.P. & Ors.
931
(Services Selection Boards) Act, 1982'
being U.P. Act No.05 of 1982 for
establishing the Services Selection Board
for the selection of teachers in the
institutions recognized under the Uttar
Pradesh Intermediate Education Act. The
statement and objects for promulgation of
the said Act is as under:

"The appointment of teachers in
secondary institutions recognised by the
Boad of High School and Intermediate
Education was governed by the Intemediate
Education Act, 1921 and regulations made
thereunder. It we felt that the selection of
teachers under the provisions of the said
Act and the regulations was some times not
free and fair. Besides, the field of selection
was also very much restricted. This
adversely affected the availability of
suitable teachers and the standard of
education. It was therefore, considered
necessary
to
constitute
Secondary
Education Service Commission at the State
level, to select Principals, Lecturers, Headmasters and L.T. Grade teachers, and
Secondary Education Selection Boards at
the regional level, to select and make
available
suitable
candidates
for
comparatively lower posts in C.T./J.T.C./
B.T.C. Grade for such institutions."

19. By means of the said 1982 Act, a
'Board' was established for selecting the
teachers and the principals or headmasters.
The definition of 'Teachers' as contained in
Section 2(k) of the 1982 Act is as under:

"(k).
'Teacher'
means
a
person
employed for imparting instruction in an
institution and includes a Principal or a
Headmaster."

20. In sub-section (l) of Section 2 of
the 1982 Act, the 'Year of recruitment' is
defined, which is as under:

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

21. The Board established under
Section 3 of the said 1982 Act is conferred
with the powers and duties as defined under
Section 9, one of them being to take
decision on matters relating to method of
direct recruitment of teachers. The said
1982 Act by virtue of Section 10 provides
for the procedure and selection by direct
recruitment, which is quoted hereinbelow:

"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:

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)."

22. After taking the steps as recorded
under Section 10, the Board is saddled with
making the selection by preparation of
932 INDIAN LAW REPORTS ALLAHABAD SERIES
panel of candidates as enumerated under
Section 11, which is quoted hereinbelow:

"11. Panel of candidates. (1) The
Board shall, as soon as may be, after the
vacancy is notified under sub-section (1) of
Section 10, hold examinations, where
necessary, and interviews, of the candidates
and prepare a panel of those found most
suitable for appointment.

(2) The panel referred to in subsection (1) shall be forwarded by the Board
to the officer or authority referred to in
sub-section (1) of Section 10 in such
manner as may be prescribed.

(3) After the receipt of the panel under
sub-section (2), the officer or authority
concerned shall in the prescribed manner
intimate the Management of the Institution
the names of the selected candidates in
respect of the vacancies notified under subsection (1) of Section 10.

(4) The management shall, within a
period of one month from the date of
receipt
of
such
intimation,
issue
appointment
letter
to
such
selected
candidate.

(5) Where such selected candidate
fails to join the post in such institution
within the time allowed in the appointment
letter or within such extended time as the
Management may allow in this behalf," or
where such candidate is otherwise not
available for appointment, the officer or
authority concerned may, on the request of
the
Management,
intimate,
in
the
prescribed manner, fresh name or names
from the panel forwarded by the Board
under sub-section (2)."

23. Till the Board was to make the
selection in terms of the mandate of
Sections 10 and 11, the provisions with
regard to the filling up the posts of ad hoc
Principals or Headmasters is elaborated
under Section 18 of the 1982 Act, which is
quoted hereinbelow:

"18.
Ad
hoc
Principals
or
Headmasters. (1) Where the Management
has notified a vacancy to the Board, in
accordance with sub- section (1) of Section
10 and the post of the Principal or the
Headmaster actually remained vacant for
more than two months, the management
shall fill such vacancy on purely ad hoc
basis by promoting the seniormost teacher.

(a) in the lecturer's grade in respect of
a vacancy in the post of the Principal.

(b) in the trained graduate's grade in
respect of a vacancy in the post of the
Headmaster.

(2) Where the Management fails to
promote the seniormost teacher under subsection (1) the inspector shall himself issue
the order of pro- motion of such teacher
and the teacher concerned shall be entitled
to get his salary as the Principal or the
Headmaster, as the case may be, from the
date he joins such post is pursuance of such
order of promotion.
(3) Where the teacher to whom the order of
promotion is issued under sub-section (2) is
unable to join the post of the Principal or
the Headmaster, as the case may be, due to
any act or omission on the part of the
management, such teacher may submit his
joining report to the Inspector, and shall
thereupon be entitled to get his salary as
the Principal or the Headmaster, as the
case may be, from the date he submits the
said report.

(4) Every appointment of an ad hoc
Principal or Headmaster under sub-section
(1) or sub-section (2) shall cease to have
effect
from
when
the
candidate
recommended by the Board joins the post."

24. Section 34 of the 1982 Act
empowers the Board with the prior
2 All. C/m Intermediate College Natauli & Anr. Vs. State of U.P. & Ors.
933
approval of the State Government to make
regulations prescribing fees for holding
selections, for holding interviews and
laying down the procedure to be followed
by the Board for discharging its duties and
performing its functions under the Act.
Section 35 confers the powers upon the
State Government to make rules for
carrying out the purposes of the Act.

25. In terms of the powers conferred
by virtue of Section 35 of the 1982 Act, the
State Government notified the Rules known
as 'The Uttar Pradesh Secondary Education
Services Selection Board Rules, 1998'
(hereinafter referred to as ''the 1998 Rules').

26. Part-II of the said Rules provides
for the necessary qualifications which are
required for direct recruitment to a post of
teacher.
Part-III
of
the
said
Rules
specifically provides for recruitment of
teachers in different categories. Rule 10(a)
of Part-III provides that the Principal of an
intermediate college or Headmaster of high
school can be appointed only by direct
recruitment, whereas for the teachers of
lecturer grade and the teachers of trained
graduate category, in the said recruitment
was different and for teachers attached
primary section, the method of recruitment
is different. Rule 10 is quoted hereinbelow:

"10. Source of recruitment.-Teachers
will be recruited in different different
categories through following sources:

(a) Principal of an
Intermediate College
or Headmaster of a
High School
By
direct
recruitment
(b)
Teachers
of
lecturer's grade
(i) 50 per cent by
direct recruitment;
(ii) 50 per cent by
promotion
from
amongst
substantively
appointed teachers
of
the
trained
graduates grade.
(c)
Teachers
of
trained
graduates
category by direct
recruitment
Provided that such
intermediate
colleges and high
schools
where
attached
primary
teachers
are
receiving
salary
under provisions of
the Uttar Pradesh
High School and
Intermediate
Colleges (payment
of
Salaries
of
Teachers and other
employees)
Act,
1971, 75 per cent
of the posts will be
filled
by
direct
recruitment and the
rest of the 25 per
cent of the posts
will
be
filled
through promotion
of
those
trained
graduate
teachers
of attached primary
section who have
completed
satisfactory
services
of
five
years:
Provided
further
that where there is
no
eligible
candidate available
for
recruitment
through promotion
in any recruitment
934 INDIAN LAW REPORTS ALLAHABAD SERIES
year, the posts may
be filled through
direct recruitment:
Provided also that
while
calculating
the percentage of
different
posts
under
the
same
recruitment, if a
fraction occurs, the
fraction of direct
recruitment will be
excluded and the
fraction of posts to
be filled through
promotion will be
increased by one to
create one post.
(d)
Teachers
of
attached
primary
section cent per cent
by
direct
recruitment.

Note-
For
the
recruitment of the
teachers
of
attached
primary
section,
the
minimum
qualification shall
be in accordance
with
National
Council
for
Teacher Education.
Recruitment
will
be excluded and
the
fraction
of
posts to be filled
through promotion
will be increased
by one to create
one post.

27. Rule 11 of the 1998 Rules
provides for determination and notification
of vacancies. Rule 12, which is very
relevant for the present case, lays down the
procedure to be followed by the Board for
direct recruitment. Rule 12 in its entirety is
quoted hereinbelow:

"12. Procedure for direct recruitment.
(1) The Board shall, in respect of the
vacancies to be filed by direct recruitment,
advertise the vacancies including those
reserved for candidates belonging to
Scheduled Castes, Scheduled Tribes, Other
Backward Classes and other reserved
categories as applicable to Government
service from time to time, in at least two
daily newspapers, having wide circulation
in the State and call for the applications for
being considered for selection in the pro
forma 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
particular 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, trained graduates
grade and attached primary section shall
conduct written examination. The written
examination shall consist of one paper of
general aptitude test of two hours, based on
the subject.