# District Basic Education Office, Gorakhpur & Ors v. Committee of Management Karwal Devi Kanya Laghu Madhyamik Vidhyalaya Karwal Majhgawan, Gorakhpur & Anr

- **Citation:** (2023) 5 ILRA 1407
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Special Appeal No. 136 of 2023
- **Bench:** Pritinker Diwaker, J. J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/district-basic-education-office-gorakhpur-ors-v-committee-of-management-karwal-50112
- **Pages:** 10

## Headnote

A. Civil Law - Service Matter - Amendment
in Rules - Effect - Selection process for the
post of Headmistress of a recognized and
aided Junior High School, administered by
a private Management - U.P. Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 - amendment to the
Rules of 1978 by the 7th Amendment
Rules w.e.f. 04.12.2019 - 7th Amendment
Rules,
enforced
w.e.f.
04.12.2019,
withdrew the power of selection from the
Managements of non-government aided
Junior High Schools, vesting it in a
Selection Board. There is nothing to show
that these have retrospective operation.
Selection process commenced under the
existing Rules remains unaffected by any
change or amendment to the Rules, unless
the amended Rules, expressly or by
necessary implication, have retrospective
effect.

B.
In
the
instant
case,
post
of
Headmistress
of
the
Institution
fell
vacant. BSA granted the permission on
08.03.2019, authorizing the Institution to
advertise the post of Headmistress and
complete the process of selection. Post of
Headmistress advertised on 09.03.2019.
Interviews were held on 10.06.2019.
Selection procedure was completed by the
Committee of Management and papers
forwarded to the BSA on 12.06.2019 for
approval. Held : Process of selection was
commenced under the unamended Rules
of 1978, after due permission of the
competent authority, much prior to the
issue of the Government Order dated
31.10.2019 and the amendment to the
Rules of 1978 by the 7th Amendment
Rules w.e.f. 04.12.2019, the process of
appointment
in
such
a
case
would
continue to be preserved under the then
existing
Rules
and
that
the
7th
Amendment
Rules,
that
came
into
existence later on, would not affect its
validity. The process of selection was
completed before the 7th Amendment
Rules were notified. The process of
selection would, therefore, be governed
by the Rules of 1978, unaffected by the
7th Amendment Rules. (Para 19, 21)

Dismissed. (E-5)

List of Cases cited:

## Text

5 All. Distict Basic Education Office, Gorakhpur & Ors. Vs. Committee of Management Karwal
 Devi Kanya Laghu Madhyamik Vidhyalaya Karwal Majhgawan, Gorakhpur & Anr.
1407

19. Thus, on all the three grounds, as
noted above, the impugned order dated
24.01.2022 is unsustainable and is quashed.
The matter is remanded to the adjudicating
authority to pass a fresh order after
supplying the copy of the SIB report and
giving an opportunity of hearing to the
petitioner and also an opportunity of filing
a reply.

20. Both the writ petitions stand
allowed in terms of the said order.
----------
(2023) 5 ILRA 1407
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE J. J. MUNIR, J.

Special Appeal No. 136 of 2023

District Basic Education Office, Gorakhpur
& Ors. ...Appellants
Versus
Committee of Management Karwal Devi
Kanya
Laghu
Madhyamik
Vidhyalaya
Karwal Majhgawan, Gorakhpur & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Nagendra Kumar Pandey

Counsel for the Respondents:
Sri Indra Raj Singh

A. Civil Law - Service Matter - Amendment
in Rules - Effect - Selection process for the
post of Headmistress of a recognized and
aided Junior High School, administered by
a private Management - U.P. Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 - amendment to the
Rules of 1978 by the 7th Amendment
Rules w.e.f. 04.12.2019 - 7th Amendment
Rules,
enforced
w.e.f.
04.12.2019,
withdrew the power of selection from the
Managements of non-government aided
Junior High Schools, vesting it in a
Selection Board. There is nothing to show
that these have retrospective operation.
Selection process commenced under the
existing Rules remains unaffected by any
change or amendment to the Rules, unless
the amended Rules, expressly or by
necessary implication, have retrospective
effect.

B.
In
the
instant
case,
post
of
Headmistress
of
the
Institution
fell
vacant. BSA granted the permission on
08.03.2019, authorizing the Institution to
advertise the post of Headmistress and
complete the process of selection. Post of
Headmistress advertised on 09.03.2019.
Interviews were held on 10.06.2019.
Selection procedure was completed by the
Committee of Management and papers
forwarded to the BSA on 12.06.2019 for
approval. Held : Process of selection was
commenced under the unamended Rules
of 1978, after due permission of the
competent authority, much prior to the
issue of the Government Order dated
31.10.2019 and the amendment to the
Rules of 1978 by the 7th Amendment
Rules w.e.f. 04.12.2019, the process of
appointment
in
such
a
case
would
continue to be preserved under the then
existing
Rules
and
that
the
7th
Amendment
Rules,
that
came
into
existence later on, would not affect its
validity. The process of selection was
completed before the 7th Amendment
Rules were notified. The process of
selection would, therefore, be governed
by the Rules of 1978, unaffected by the
7th Amendment Rules. (Para 19, 21)

Dismissed. (E-5)

List of Cases cited:
1. Committee of Management, Adarsh Janta
Madhyamik Vidyalaya & anr. Vs St. of U.P. &
ors.,
Writ-A
No.10509
of
2019,
dated
04.03.2020
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Santosh Kumar Singh Vs St. of U.P. & ors.,
2015 (5) AWC 4719
(Delivered by Hon'ble J. J. Munir, J.)

1. This is an appeal by the State of
U.P. and its officials in the Department of
Basic Education, impugning the validity of
the judgment and order dated 23.03.2022
passed by the learned Single Judge
allowing Writ-A No.21411 of 2019.

2. The facts giving rise to this appeal
are that there is a Junior High School,
going by the name Karwal Devi Kanya
Laghu Madhyamik Vidyalaya, Karwal,
Majhgawan,
Gorakhpur,
which
is
a
recognized and aided Junior High School,
administered by a private Management.
The aforesaid Junior High School shall
hereinafter be called 'the Institution'. The
services of teachers of the Institution are
governed by the provisions of the Uttar
Pradesh Recognised Basic Schools (Junior
High
Schools)
(Recruitment
and
Conditions of Service of Teachers) Rules,
1978 (for short, 'the Rules of 1978').
Salaries to teachers and other employees of
the Institution are borne on State grant and
are paid in accordance with the provisions
of the Uttar Pradesh Junior High Schools
(Payment of Salaries of Teachers and other
Employees) Act, 1978 (for short, 'the Act
of 1978'). The parties are ad idem that the
post of Headmistress of the Institution fell
vacant and the Management of the
Institution sought permission of the District
Basic Education Officer, Gorakhpur (for
short, ''the BSA') on 22.12.2018 to make
recruitment on the post. The BSA granted
the requisite permission on 05.01.2019,
authorizing the Institution to advertise the
post of Headmistress and complete the
process of selection. An advertisement
dated
08.01.2019
was,
accordingly,
published in two daily newspapers, to wit,
'Aaj' and 'Swatantra Bharat', advertising the
post of Headmistress of the Institution. In
the said advertisement, there was no
mention of the minimum qualifications for
the post rendering it bad on that account.
The Management of the Institution sought
permission of the BSA to cancel the said
advertisement and issue a fresh one in its
place, rectifying the error.

3. The BSA vide order dated
08.03.2019 permitted a fresh advertisement
to be issued. Accordingly, the Institution
advertised the post of Headmistress afresh
on 09.03.2019, getting it published in the
dailies, 'Aaj' and 'Swatantra Bharat'. The
advertisement invited applications from
eligible and qualified candidates for the
post of Headmistress of the Institution until
25.03.2019 indicating that the applications
were to be submitted by registered post.
The date of interview was scheduled on
29.03.2019. The Manager of the Institution
addressed a letter dated 18.03.2019 to the
BSA, requesting for the provision of a
nominee to participate in the Selection
Committee
convened
to
select
the
Headmistress.

4. In response to the letter dated
18.03.2019, the BSA sent a memo dated
26.03.2019 to the Institution saying that it
was not possible to provide a nominee as
the Model Code of Conduct was in
operation
on
account
of
the
then
forthcoming elections to the Legislative
Assembly. The Institution, accordingly,
postponed the date of interview from
29.03.2019
to
29.05.2019.
All
the
candidates,
who
had
applied,
were
informed of the changed date. Later on, on
16.05.2019, a memo was addressed to the
BSA requesting for the provision of a
nominee as the Model Code of Conduct
5 All. Distict Basic Education Office, Gorakhpur & Ors. Vs. Committee of Management Karwal
 Devi Kanya Laghu Madhyamik Vidhyalaya Karwal Majhgawan, Gorakhpur & Anr.
1409
was then soon scheduled to be over. A
reminder was sent on 25.05.2019 with a
further request to re-schedule the interview
to 10.06.2019. The BSA on occasion
provided a nominee to sit on the Selection
Committee and issued an order dated
01.06.2019, directing Arun Pratap Singh,
Block
Education
Officer,
Gagaha,
Gorakhpur to act as the BSA's nominee in
the Selection Committee convened to select
the Headmistress of the Institution. The
Institution constituted a Three Members
Selection
Committee,
comprising
the
Manager of the Institution, the Vice
President of the Committee of Management
of the Institution and Arun Pratap Singh,
the BSA's nominee.

5. The interviews were held on the rescheduled date i.e. 10.06.2019. The Selection
Committee met and conducted the interviews
of eligible and qualified candidates. The
members individually awarded marks to each
candidate in accordance with the assessed
merit. An attendance register of candidates
signed by all members of the Selection
Committee was also drawn up. At the
conclusion of selection, the relative merit of
all candidates, who appeared, was drawn up.
One Smt. Kajal Singh was found to be the
most suitable amongst the candidates on
account of the highest merit assessed for her.
She was followed by Smt. Alka Singh and
Smt. Indrakala Singh, who were placed at
serial Nos. 2 and 3 in that order. The
Manager of the Institution issued a letter
dated 12.06.2019, forwarding the names of
the candidates in accordance with their merit
assessed by the members of the Selection
Committee to the BSA. The Manager sought
the BSA's approval to Smt. Kajal Singh's
selection.

6. The BSA, however, passed an
order dated 04.07.2019, declining to grant
approval to the selection of Smt. Kajal
Singh. The Management, who are the writ
petitioner-respondents
to
this
appeal,
aggrieved by the order dated 11.07.2019
passed by the BSA, moved this Court by
instituting Writ-A No.11919 of 2019. It
appears that in the said petition, this Court
required the BSA to file his personal
affidavit vide order dated 13.08.2019. In
compliance, the BSA filed his personal
affidavit stating that there is no order dated
07.06.2019
in
writing,
but
an
oral
instruction was issued through Video
Conferencing by the Additional Chief
Secretary (Basic Education) imposing a ban
on grant of approval to the appointment of
Assistant
Teachers
and
Headmasters/
Headmistresses in recognized and aided
junior high schools. In view of the
aforesaid stand, this Court vide order dated
26.08.2019 disposed of Writ-A No.11919
of 2019 with a direction to the BSA to
decide the writ-petitioners' claim for grant
of approval to the Headmistress's selection,
relating to the Institution.

7. The writ-petitioner Management
served a certified copy of the judgment and
order dated 26.08.2019 passed by this
Court in Writ-A No.11919 of 2019 upon
the BSA along with representation dated
07.09.2019/ 09.09.2019, seeking approval
to the selection of the Headmistress. Since
no orders were passed with regard to the
approval of the selected Headmistress, the
writ-petitioners, considering it to be a case
of deemed approval under Rule 10(5)(iii)
of the Rules of 1978 [as it stood prior to the
enforcement
of
the
Uttar
Pradesh
Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service
of
Teachers)
(Seventh
Amendment) Rules, 2019] (for short, 'the
7th Amendment Rules'), proceeded to issue
a letter of appointment to Smt. Kajal Singh
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 10.10.2019. Smt. Kajal Singh, in
compliance with the letter of appointment
issued by the writ-petitioners Management,
joined the Institution as the Headmistress
on 24.10.2019. An information with regard
to the said action was forwarded by the
Manager of the Institution to the BSA vide
memo dated 30.10.2019. At this stage, the
BSA proceeded to pass an order dated
06.11.2019 rejecting the Institution's claim
for grant of approval to the appointment of
the Headmistress.

8. The Institution, accordingly,
preferred Writ-A No.21411 of 2019,
challenging the order dated 06.11.2019
passed by the BSA, as also the Government
Order dated 31.10.2019, on the strength of
which the BSA passed the former order. A
mandamus was also prayed directing the
BSA to consider grant of approval to the
Headmistress's
appointment.
The
writ
petition came up for hearing after exchange
of affidavits before the learned Single
Judge on 23.03.2022, who allowed the writ
petition and quashed the order dated
06.11.2019 passed
by
the
BSA.
A
mandamus was issued to the BSA to grant
approval to the appointment of Smt. Kajal
Singh as the Headmistress of the Institution
within a period of two weeks. It was also
ordered that Smt. Kajal Singh would be
entitled to her salary and other service
benefits from 10.10.2019 i.e. after one
month of the date of submission of papers
for approval by the Management of the
Institution to the BSA.

9. Aggrieved by the judgment of the
learned Single Judge, the State of U.P. and
two of its Officers in the Department of
Basic Education, who are respondents to
the writ petition, have preferred this appeal
under Chapter VIII Rule 5 of the Rules of
the Court.

10. Heard the learned Standing
Counsel appearing on behalf of the
appellants and Mr. Indra Raj Singh, learned
Counsel appearing on behalf of the
respondents.

11. The learned Single Judge while
allowing the writ petition was of opinion
that
the
Government
Order
dated
31.10.2019 came into force with effect
from that date, but the selection procedure
was completed by the Committee of
Management and papers forwarded to the
BSA on 12.06.2019. The learned Judge
relied upon a judgment of this Court in
Writ-A No.10509 of 2019, Committee of
Management, Adarsh Janta Madhyamik
Vidyalaya and another v. State of U.P.
and others, decided on 04.03.2020,
holding that the process of selection being
initiated much prior to the issue of the
Government Order dated 31.10.2019 and
the amendment to the Rules of 1978 by the
7th Amendment Rules w.e.f. 04.12.2019,
the process of appointment in such a case
would continue to be preserved under the
then existing Rules. It was opined by this
Court in Committee of Management,
Adarsh Janta Madhyamik Vidyalaya
(supra) that the process of selection that
was commenced under the unamended
Rules of 1978, after due permission of the
competent Authority, would continue to be
governed
by
that
process
and
the
subsequently issued Government Order or
the 7th Amendment Rules, that came into
existence later on, would not affect its
validity.

12. In support of his Lordship's
reasoning, the learned Single Judge in
Committee of Management, Adarsh
Janta Madhyamik Vidyalaya relied upon
the decision of a Full Bench of this Court in
Santosh Kumar Singh v. State of U.P.
5 All. Distict Basic Education Office, Gorakhpur & Ors. Vs. Committee of Management Karwal
 Devi Kanya Laghu Madhyamik Vidhyalaya Karwal Majhgawan, Gorakhpur & Anr.
1411
and others, 2015 (5) AWC 4719. It would
be apposite to extract what the learned
Single Judge took note of in Committee of
Management, Adarsh Janta Madhyamik
Vidyalaya regarding the Full Bench
decision of this Court in Santosh Kumar
Singh (supra):

"A Full Bench of this Court in
Special Appeal (Defective) No. 215 of
2015 (Santosh Kumar Singh Vs. State of
U.P. & others) decided on 22.7.2015 has
considered the question of continuing
selection process where the process of
appointment was initiated by issuing
advertiesement before rescision of the
removal of Difficulties Order by Section
33-E of the U.P. Act No. 13 of 1999 and
held, as under:-

"We consequently answer the
reference in the following terms:

(a) Despite the rescission of the
Removal
of
Difficulties
Orders
by
Section 33-E of U P Act No 13 of 1999
with effect from 25 January 1999, the
power of the Committee of Management
to make appointments against short term
vacancies,
where
the
process
of
appointment had been initiated prior to
25 January 1999 by the publication of an
advertisement, would continue to be
preserved;

(b) On the enforcement of the
provisions of Section 33-E, the power of
a Committee of Management to make
adhoc appointments against short term
vacancies would not stand abrogated in a
case where the process of selection had
been initiated prior to 25 January 1999;

(c) Under Section 16-E of the
Intermediate Education Act, 1921, the
Committee of Management is empowered
to
make
an
appointment
against
a
temporary vacancy caused by the grant of
leave to an incumbent for a period not
exceeding six months or in the case of
death, termination or otherwise, of an
incumbent occurring during an educational
session. An appointment made under subsection (11) of Section 16-E as provided in
the proviso thereto shall, in any case, not
continue beyond the end of educational
session during which the appointment was
made; and

(d) The judgment of the Division
Bench in Subhash Chandra Tripathi (supra)
is affirmed as laying down a correct
interpretation of the judgment in A A
Calton (supra).

The reference to the Full Bench is
answered in the aforesaid terms. The
special appeal shall now be placed before
the appropriate Bench for disposal in the
light of this judgment."

(emphasis supplied)

13. Before us, it has been argued on
the basis of the averments made in
Paragraph No.6 of the counter affidavit that
on 07.06.2019, the Additional Chief
Secretary (Basic Education), Government
of
U.P.,
Lucknow,
through
Video
Conferencing, had directed all Authorities
to stop selections for filling up posts of
Headmasters and Assistant Teachers in
non-government aided junior high schools.
Apparently, this was an oral direction
issued by the Additional Chief Secretary. It
is pointed out that this direction was issued
in anticipation of amendments then under
contemplation to the Rules of 1978.
Accordingly, the State Government vide
orders dated 26.09.2019 and 31.10.2019
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
imposed
a
ban
on
selection
and
appointment of Headmasters and Assistant
Teachers in non-government aided junior
high schools. Copies of those orders have
been annexed as Annexure No. CA-1 to the
counter affidavit, to which our attention
was drawn by the learned Counsel for the
appellants.

14. We have perused both the
Government Orders dated 26.09.2019 and
31.10.2019. The learned Single Judge has
not looked into the validity of the
Government
Order
dated
31.10.2019,
because in his Lordship's opinion, and, we
think rightly so, the said Government Order
would not affect the right of the Institution
in this case to make appointment to the post
of Headmistress. Here, the selection
process commenced much before the date
of the oral fiat of the Additional Chief
Secretary (Basic Education), directing
stoppage of all selection processes relating
to
posts
of Assistant
Teachers
and
Headmasters of non-government aided
junior high schools. The said direction was
issued on 07.06.2019.

15. We would proceed to examine the
matter on the basis that such a direction
could be issued by the Additional Chief
Secretary, and see if it affects the
Institution's right to make appointments. In
our opinion, it does not. The reason is that
the process of selection, that was initiated
with the approval of the BSA, granted on
05.01.2019, would have to be completed in
accordance with the Rules of 1978, as in
force at the time when the selection process
was initiated. Advertisement pursuant to
the order of the BSA, permitting the
Institution
to
fill
up
the
post
of
Headmistress, was first published on
08.01.2019. It was then cancelled on the
request
of
the
Management
of
the
Institution by the BSA on 08.03.2019 with
permission to issue a fresh advertisement to
overcome
a
technical
flaw
in
the
advertisement. The revised advertisement
was
published
on
09.03.2019.
The
interviews were initially scheduled for 29th
March, 2019, but ultimately held on
10.06.2019 with the BSA sending his
nominee to sit on the Selection Committee.
The papers regarding proceedings of the
Selection Committee were submitted to the
BSA on 12.06.2019. Thus, out of the entire
recruitment process, only two events
happened
after
the
Additional
Chief
Secretary's oral orders dated 07.06.2019
made through Video Conferencing to stop
appointments, to wit, interviews that were
held by the Selection Committee on
10.06.2019
and
the
submission
of
proceedings of the Selection Committee to
the BSA on 12.06.2019. Apart from the
aforesaid two events, the entire recruitment
process was initiated much before the
Additional Chief Secretary's oral 'halt'
order.

16. The oral orders were followed by
Government Orders dated 26.09.2019 and
31.10.2019, imposing a ban by the State
Government on selection and appointment
of Headmasters/ Assistant Teachers in nongovernment aided junior high schools.
Later on, the State Government, in exercise
of their powers under Section 19(1) of the
Uttar Pradesh Basic Education Act, 1972
(for short, 'the Act of 1972'), issued a
notification dated 04.12.2019, notifying the
7th Amendment Rules, amending the Rules
of 1978. The 7th Amendment Rules,
enforced w.e.f. 04.12.2019, withdrew the
power of selection from the Managements
of non-government aided junior high
schools, vesting it in a Selection Board,
constituted under the last mentioned Rules.
Thus seen, the oral order of the Additional
5 All. Distict Basic Education Office, Gorakhpur & Ors. Vs. Committee of Management Karwal
 Devi Kanya Laghu Madhyamik Vidhyalaya Karwal Majhgawan, Gorakhpur & Anr.
1413
Chief Secretary, asking the Authorities of
the Basic Education Department to stop the
ongoing selection and appointment of
Assistant Teachers and Headmasters in
private aided junior high schools as also the
two Government Orders dated 26.09.2019
and 31.10.2019 were efforts made in
anticipation of enforcement of the then
proposed 7th Amendment Rules. The oral
orders and the Government Orders sought
to achieve this by halting all ongoing
selection and appointment of Headmasters
and Assistant Teachers in private aided
junior high schools, till such time that the
7th Amendment Rules were notified.
Accordingly, we also propose to examine
whether apart from the oral order dated
07.06.2019, the two Government Orders
dated 26.09.2019 and 31.10.2019 could
lawfully stop an ongoing selection process
initiated prior to any of those measures,
oral or written.

17. As already observed with regard
to the oral orders of the Additional Chief
Secretary assuming that these had binding
effect on the Institution's right to select and
appoint, would not affect the selection and
appointment in this case, because the
process had already commenced before the
oral orders were issued by the Additional
Chief Secretary. Likewise, is the case with
the
two
Government
Orders
dated
26.09.2019 and 31.10.2019, both of which
were issued much after the selection
process relating to the post of Headmistress
of the Institution was initiated. Rather, the
entire process had been completed much
before the two Government Orders came to
be issued.

18. The principle, that a change in the
rules of selection could be applied
prospectively, but not affect the selection
process already commenced under the
unamended
or
the
old
Rules,
was
extensively examined by the Full Bench in
Santosh
Kumar
Singh
(supra).
In
Santosh Kumar Singh, it was held by
their Lordships of the Full Bench:

"9. The decision in A.A. Calton
(supra) is, therefore, an authority for the
proposition that once a process of selection
has been initiated, a subsequent amendment
of the law by which the power to make an
appointment has specifically been taken
away from a statutory authority - in that
case from the Director - would have no
application to a pending selection process
which must be governed by the law as it
stood when the selection process was
initiated. Undoubtedly, the Legislature does
have the power to make a law with
retrospective effect but unless the law is
made
expressly
retrospective
or
retrospective by necessary implication, the
position of law as it stood when the
selection process was initiated, would
govern the selection.

10. In certain other contexts, the
Supreme Court has held, for instance, that a
selection process has to be governed by the
Rules and Government Orders in existence
on the date on which the process is
initiated. In N.T. Bevin Katti v. Karnataka
Public Service Commission, (1990) 3 SCC
157, the Supreme Court held as follows:

"...Where
proceedings
are
initiated
for
selection
by
issuing
advertisement,
the
selection
should
normally be regulated by the then existing
rules and Government orders and any
amendment of the rules or the Government
order pending the selection should not
affect the validity of the selection made by
the selecting authority or the Public Service
Commission unless the amended Rules or
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
the amended Government orders, issued in
exercise of its statutory power either by
express
provision
or
by
necessary
intendment indicate the amended Rules
shall
be
applicable
to
the
pending
selections. See P. Mahendran v. State of
Karnataka, (1990) 1 SCC 411 : JT (1989) 4
SC 459."

11. In State of Bihar v. Mithilesh
Kumar, (2010) 13 SCC 467, the Supreme
Court held that a change in the norms of
recruitment could be applied prospectively
and could not affect those who have been
selected for being recommended for
appointment after following the norms
which were in place at the time when the
selection process was commenced. The
submission to the contrary was based on
the decision in Shankarsan Dash v. Union
of India, AIR 1991 SC 1612, to the effect
that mere inclusion in a select panel did not
confer indefeasible right to appointment.
The Supreme Court explained the position
in law as follows:

"The decisions which have been
cited on behalf of the respondent have
clearly explained the law with regard to the
applicability of the rules which are
amended and/or altered during the selection
process. They all say in one voice that the
norms or rules as existing on the date when
the process of selection begins will control
such selection and any alteration to such
norms would not affect the continuing
process, unless specifically the same were
given retrospective effect...While a person
may not acquire an indefeasible right to
appointment merely on the basis of
selection, in the instant case the fact
situation is different since the claim of the
respondent to be appointed had been
negated by a change in policy after the
selection process had begun."

12. In a subsequent decision in
Government of Andhra Pradesh v. Sri
Sevadas Vidyamandir High School, (2011)
9 SCC 613, the Supreme Court held that a
ban on recruitment to grant-in-aid posts had
been issued after the school in question had
been permitted by the State to fill up vacant
posts. The Supreme Court held that in these
circumstances, the State could not contend
that the process of rationalization which
was introduced subsequently, would also
apply to private aided schools, where the
process of recruitment had already been
commenced pursuant to the approval
granted earlier.

13. The judgment in A.A. Cotton
(supra) has been recently followed in a
decision of the Supreme Court in Kulwant
Singh v. Daya Ram, (2015) 3 SCC 177, in
the context of the principle that vacancies
which had occurred prior to an amendment
of rules would be governed by the unamended rules and not by the amended
rules where the amended rules are not made
retrospective
either
expressly
or
by
implication.

14. The judgment of the Division
Bench in Subhash Chandra Tripathi's case
was based on the law laid down by the
Supreme Court in A.A. Cotton (supra). In
the referring judgment, the Division Bench
has doubted the correctness of that view
based on a judgment of the Supreme Court
in Shankarsan Dash (supra). In the view of
the Division Bench, the Supreme Court has
held that even a selection does not confer a
right of appointment. Hence, the view
which has been taken by the Division
Bench is that a mere initiation of the
process of selection will not result in the
retention of the power of appointment by
the authority concerned even when the
power of appointment had been withdrawn
5 All. Distict Basic Education Office, Gorakhpur & Ors. Vs. Committee of Management Karwal
 Devi Kanya Laghu Madhyamik Vidhyalaya Karwal Majhgawan, Gorakhpur & Anr.
1415
under a statutory provision, in this case
Section 33-E. The decision in Shankarsan
Dash (supra) of a Constitution Bench of the
Supreme Court dealt with the issue as to
whether a candidate whose name appears in
the merit list on the basis of a competitive
examination acquires an indefeasible right
of appointment as a Government servant
merely because a vacancy exists. In that
context, the Supreme Court held as follows:

"7. It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily the notification merely
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any right
to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies.
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or
any of them are filled up, the State is bound
to respect the comparative merit of the
candidates, as reflected at the recruitment
test, and no discrimination can be permitted.
This correct position has been consistently
followed by this Court, and we do not find
any discordant note in the decisions in State
of Haryana v. Subhash Chander Marwaha,
(1974) 1 SCR 165 : (AIR 1973 SC 2216),
Miss Neelim Shangla v. State of Haryana,
(1986) 4 SCC 268 : AIR 1987 SC 169, or
Jitendra Kumar v. State of Punjab, (1985) 1
SCR 899 : AIR 1984 SC 1850."

15. These observations of the
Supreme Court would indicate that the
issue in Shankarsan Dash (supra) was
completely distinct. A candidate who is on
a select list does not have an indefeasible
right to appointment merely because a
vacancy exists. That is not the issue in the
present case. The issue in the present case
is whether a process of selection which was
initiated prior to the insertion of Section
33-E which rescinded the Removal of
Difficulties Orders must be governed by
the law as it then stood at the time when the
process was initiated by the issuance of an
advertisement. Plainly, the issue is not
about the right of a particular candidate to
appointment but whether the selection
process should be governed by the law as it
stood when the selection process was
initiated. On this aspect, the consistent
position of law has been laid down in the
judgment of the Supreme Court in A.A.
Cotton (supra)."

19. The answers by the Full Bench in
Santosh Kumar Singh have been referred
to much earlier in this judgment and the
remarks of their Lordships, above referred,
make it pellucid that the selection process
commenced under the existing rules
remains unaffected by any change or
amendment to the Rules, unless the
amended Rules, expressly or by necessary
implication, have retrospective effect.

20. Interestingly, in this case, the oral
orders of the Additional Chief Secretary
under reference or the two Government
Orders issued in this case are not any kind
of an amendment to the existing Rules, that
is to say, the Rules of 1978. These were
just interim measures to hold back the
selection
processes
pending
the
enforcement of the amended Rules. If the
amended Rules, that is to say, the 7th
Amendment Rules, that came to be
enforced w.e.f. 04.12.2019, do not affect a
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
selection process already commenced,
measures
to
facilitate
taken
in
the
interregnum prior to introduction of the
amended Rules would not apply likewise to
a selection process already commenced.
This is precisely the case with the selection
of the Headmistress of the Institution.

21. A perusal of the 7th Amendment
Rules shows that these Rules by virtue of
sub-Rule (2) of Rule 1 are ordained to
come into effect from the date of their
publication in the Gazette. There is nothing
to show in the amended Rules, either
expressly or by necessary implication, that
these have retrospective operation. The
principle adumbrated by the Full Bench in
Santosh Kumar Singh, therefore, would
apply to save the process of selection for
the post of Headmistress of the Institution,
that was initiated much before the 7th
Amendment Rules were enforced. In fact,
the process of selection was completed
before the 7th Amendment Rules were
notified. The process of selection would,
therefore, be governed by the Rules of
1978, unaffected by the 7th Amendment
Rules.

22. As already remarked, if the 7th
Amendment Rules do not affect the
selection
process
for
the
post
of
Headmistress of the Institution commenced
much earlier, the measures taken by the
State
Government in interregnum to
facilitate the application of the new regime
under the 7th Amendment Rules, would not
affect the validity of the selection process
either. After all, the ban on selection,
assuming that it could be orally imposed by
the Additional Chief Secretary, pending
enforcement of the 7th Amendment Rules,
would not affect the validity of the
selection process, because the ban was only
an interim measure in aid of the 7th
Amendment Rules. If it be assumed further
that the ban would nevertheless stall the
ongoing selection process, already near
completion, when it was orally issued by
the
Additional
Chief
Secretary,
the
recruitment
process,
upon
the
7th
Amendment Rules coming into force,
would have to be carried to its logical
conclusion as the 7th Amendment Rules
would not affect it. The two Government
Orders dated 26.09.2019 and 31.10.2019
are also in the nature of measures issued in
aid
of
the
then
contemplated
7th
Amendment Rules. The ban imposed under
those orders would have like effect as the
oral orders of the Additional Chief
Secretary issued earlier imposing the ban.
The selection process relating to the post of
Headmistress would remain unaffected.

23. No other point was pressed.

24. In view of what has been said
above, we do not find any good ground to
interfere with the judgment and order
impugned.

25. The appeal fails and is dismissed.

26. Costs easy.
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(2023) 5 ILRA 1416
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.04.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 25213 of 2019

Prem Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: