# Kamal Nayan Singh & Ors v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 1270
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-05
- **Case number:** Writ A No. 5390 of 2022
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-nayan-singh-ors-v-state-of-u-p-ors-49115
- **Pages:** 15

## Headnote

A. Service Law - Selection/Appointment -
All India Council for Technical Education
Pay
Scales,
Service
Conditions
and
Minimum Qualifications for Appointment
of Teachers and Other Academic Staff
such as Library, Physical Education and
Training
&
Placement
Personnel
in
Technical
Education
-
(Degree)
Regulation, 2019; Uttar Pradesh Technical
Education (Teaching) Service Rules, 2021:
Rule 3(i).

The issue before the Hon'ble Court is
whether the requisition made by the
State Government and acted upon by the
UPSSSC
upon
issuance
of
the
advertisement
dated
26.11.2016
developed an incurable defect as may
not
have
allowed
the
UPSSSC
to
continue or complete the process of
selection undertaken by it, either upon
issuance
of
Notification
dated
01.03.2019 (by the AICTE) or upon
enforcement
of
the
UP
Rules
on
09.06.2021. (Para 15)

The law on the date of occurrence of
vacancy is not the law on which fresh
selection may be made. At the same time,
any and every change made to the law
during an ongoing selection process does
not automatically attach or govern that
selection
process,
unless
the
change/amendment
to
the
law
is
specifically
made
with
retrospective
effect. (Para 16)

There is no doubt - the advertisement issued
was wholly consistent to the law that then
existed. Though the Regulation framed by the
AICTE & published vide Notification dated
01.03.2019 are statutory law and therefore
enforceable as such, yet neither the AICTE nor
the
State
Government
seek
retrospective
enforcement of that law. Rather, the State
Government considered the same and framed
its own Rules i.e., UP Rules. Those were
published
on
09.06.2021
and
enforced
prospectively. (Para 11, 17)
B.(i) Under Clause 1.4 (e) & (f) of the
Notification, the AICTE itself did not
enforce that law, retrospectively. Rather,
under Clause 1.4 (e), it first specifically
protected all pending selections that had
crossed the stage of interview. Those
selections were completely insulated from
the effects of the change to the law made
by the Notification. (Para 18)

U/Clause 1.4 (f), in case/s where interview
stage had not been conducted, the AICTE
directed all institutes/employers to first 'publish
corrigendum'
and
process
the
pending
applications (for selection), according to the
amended law. Thus, a conditional enforcement
of the amended/changed law was contemplated
by the AICTE. Only, after the State Government
published a 'corrigendum' to the Advertisement,
the changed law would become applicable to
the pending selection process, for the advertised
posts and not otherwise. (Para 20)

Therefore, in the present case, though selection
process was pending before the stage of
interview, the changed eligibility prescribed
under the Notification could not be enforced on
its own. Before it could be enforced and applied
to the impugned selection process (a

## Text

_Characters 0–39,670 of 51,733. This is a partial read: ask again with offset=39670 for what follows._

1270 INDIAN LAW REPORTS ALLAHABAD SERIES

34. That being the case, the
submission of Shri Ojha deserves to be
rejected.

35.

In
the
present
case
the
requirement of possession of additional
qualification in terms of Rule 8 (iii) was
within the discretion of the High Court and
the High Court in its discretion permitted
the candidates who had completed five
years of continuous satisfactory service as
on 1st July of the year of recruitment and
possess
the
minimum
education
qualification
of
having
a
CCC
certificate/Diploma/Degree in Computer
Science on the date of issuance of the
advertisement.

36. That being the case, no fault can
be found with the High Court in permitting
the eligible candidates, who possessed the
requisite qualification on the date of
advertisement. The petitioners and the
intervenors who have filed an intervention
application, admittedly did not possess the
additional educational qualification on the
date of advertisement, thus they had no
claim to be considered for consideration for
appointment through promotion.

37. The second argument of Shri Ojha
that the petitioners as well as the
intervenors should be granted the benefit as
was granted to the candidates who were
found to be eligible is misfounded as the
persons who were found eligible possessed
the
qualification
on
the
date
of
advertisement whereas the petitioners and
intervenors admittedly did not possess the
qualification on the date of advertisement.
Thus, they have no right to be considered
for promotion clearly because they did not
possess the minimum qualification on the
date of advertisement. Thus, to that extent
the claim of the petitioners as well as the
intervenors deserves to be rejected and is,
accordingly, rejected.

38. The mere fact that the petitioners
and the intervenors were permitted to
appear in the examination by virtue of
order of learned Single Judge passed on
08.04.2022 in the case of the petitioners
and the intervenors being permitted to
appear in the examination despite there
being no order in their favour would not
confer any rights upon the petitioners and
intervenors.

39. The writ petition is dismissed for
all the reasonings as recorded above.
However, the respondents are directed to
declare the results of all the candidates who
had appeared in the examination and had
the requisite qualification on the date of
advertisement.

40. To further clarify the results of all
candidates other than the petitioners and
intervenors shall be declared.
----------
(2023) 1 ILRA 1270
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ A No. 5390 of 2022

Kamal Nayan Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri
Shantanu
Khare,
Ms.
Neha
Roy
Chaudhary,
Sri
Kauntey
Singh,
Sri
Siddharth Khare, Sri Ashok Khare (Sr. Adv.)

Counsel for the Respondents:
1 All. Kamal Narayan Singh & Ors. Vs. State of U.P. & Ors.
1271
C.S.C., Sri M.N. Singh, Sri Nisheeth Yadav,
Sri Siddharth Singhal

A. Service Law - Selection/Appointment -
All India Council for Technical Education
Pay
Scales,
Service
Conditions
and
Minimum Qualifications for Appointment
of Teachers and Other Academic Staff
such as Library, Physical Education and
Training
&
Placement
Personnel
in
Technical
Education
-
(Degree)
Regulation, 2019; Uttar Pradesh Technical
Education (Teaching) Service Rules, 2021:
Rule 3(i).

The issue before the Hon'ble Court is
whether the requisition made by the
State Government and acted upon by the
UPSSSC
upon
issuance
of
the
advertisement
dated
26.11.2016
developed an incurable defect as may
not
have
allowed
the
UPSSSC
to
continue or complete the process of
selection undertaken by it, either upon
issuance
of
Notification
dated
01.03.2019 (by the AICTE) or upon
enforcement
of
the
UP
Rules
on
09.06.2021. (Para 15)

The law on the date of occurrence of
vacancy is not the law on which fresh
selection may be made. At the same time,
any and every change made to the law
during an ongoing selection process does
not automatically attach or govern that
selection
process,
unless
the
change/amendment
to
the
law
is
specifically
made
with
retrospective
effect. (Para 16)

There is no doubt - the advertisement issued
was wholly consistent to the law that then
existed. Though the Regulation framed by the
AICTE & published vide Notification dated
01.03.2019 are statutory law and therefore
enforceable as such, yet neither the AICTE nor
the
State
Government
seek
retrospective
enforcement of that law. Rather, the State
Government considered the same and framed
its own Rules i.e., UP Rules. Those were
published
on
09.06.2021
and
enforced
prospectively. (Para 11, 17)
B.(i) Under Clause 1.4 (e) & (f) of the
Notification, the AICTE itself did not
enforce that law, retrospectively. Rather,
under Clause 1.4 (e), it first specifically
protected all pending selections that had
crossed the stage of interview. Those
selections were completely insulated from
the effects of the change to the law made
by the Notification. (Para 18)

U/Clause 1.4 (f), in case/s where interview
stage had not been conducted, the AICTE
directed all institutes/employers to first 'publish
corrigendum'
and
process
the
pending
applications (for selection), according to the
amended law. Thus, a conditional enforcement
of the amended/changed law was contemplated
by the AICTE. Only, after the State Government
published a 'corrigendum' to the Advertisement,
the changed law would become applicable to
the pending selection process, for the advertised
posts and not otherwise. (Para 20)

Therefore, in the present case, though selection
process was pending before the stage of
interview, the changed eligibility prescribed
under the Notification could not be enforced on
its own. Before it could be enforced and applied
to the impugned selection process (already
underway),
the
employer
i.e.,
the
State
Government was required to decide to apply it
to the pending selection process and publish its
decision through a corrigendum advertisement,
to that effect. That was never done. Hence,
Regulation 1.4 (f) did not become enforceable
to the impugned selection process. (Para 21)

B.(ii) Mere enforcement of the UP Rules
also had no adverse effect on the
impugned selection process. Those being
statutory Rules, they contain no recital or
intent to enforce them retrospectively.
Plainly, they are wholly prospective. (Para
22)

Though the Writ Court may not enforce
equity against the plain letter of statutory
law, yet it may always recognize equity in
that statutory law. The Notification did not
treat any ongoing selection process (under the
unamended law), inherently or fundamentally or
incurably defective. Rather, it sought to protect
those selection processes. That equitable
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
principle, legislatively incorporated into
the Notification, must be given full effect.
Its consequences cannot be avoided or lightly
brushed away. (Para 24)

By virtue of the amendments made by the
Notification and the UP Rules, it is not a
more stringent condition being imposed,
to restrict the zone of consideration
amongst the (selected candidates), but a
complete change of eligibility conditions,
has been made. (Para 26)

C. Once, the law stood amended, it was for
the State authorities to consider its effect
and impact on the ongoing selection.
Merely because the cadre under which the
post may have been advertised would
become a dying cadre, it may not
automatically defeat the selection process
(on such post for such dying cadre), a
conscious decision making was required by the
administrative authorities' vis-à-vis the claim of
the petitioners, after evaluating the impact of
that decision. (Para 30)

Even if the old cadre (under which posts were
advertised), were a dying cadre yet, by virtue of
prior issuance of the Advertisement, the
selection process once underway had to be
taken to its logical end. Posts upgradation etc.
could be applied to such posts, at the
appropriate stage. (Para 11)

D. The UPSSSC is an autonomous body.
There are limits to its authority and work.
It acts on engagement sought by the
State agencies. It could not have acted of its
own. The State authorities issued the requisition
and thus created the embryo of the selection
process, together with all its genetic attributes
as to post, grade, pay band and eligibility
conditions. (Para 33)

Thereafter, the cycle of development of that
embryo incubated with the UPSSSC. It is at that
stage and in the context of the requisition thus
received, the advertisement was published by
the UPSSSC. The selection process completed its
cycle upon declaration of the result. It is the
result that the UPSSSC has delivered to the
State for the purpose of grant of appointment to
the posts requisitioned. (Para 34)
While the selection process incubated
with the UPSSSC, the State authorities did
not have any statutory right to require the
UPSSSC to place the same in abeyance or
to otherwise interfere with the same,
except as permitted u/Clause 1.4(f) of the
Notification. It was never resorted to. (Para
35)

The UPSSSC never became obligated to
comply with or show subservience to the
communication dated 16.02.2018 etc. and
to place in abeyance the selection process,
underway. The only other event that may have
led to disruption of the process of selection
(that was incubating with the UPSSSC) could be
if the State Government had itself aborted the
incubation process, by cancelling the requisition
made. That power has remained not exercised
by the State Government. (Para 36)

E. It is true, a mere selection does not vest
any right in the selected candidate to seek
appointment and this Court may not
readily issue a positive writ in that regard
yet, the selection process cannot be
allowed to be stalled or wasted on its own
for
reason
of
mere
administrative
inefficiency
or
incompleteness
of
administrative action. (Para 29)

There is no rationale to allow the State
authorities, the discretion to stall the
selection processes mid-way, for good or
other reasons. An autonomous expert body
such as the UPSSSC was not at the mercy of the
State Government to conduct the selection
process at the latter's dictates. To allow the
UPSSSC to do that would be to introduce
another uncertainty in the selection process as
may allow for more inefficiencies, adhocism and
therefore, corruption. (Para 38)

F. Scope of interference in administrative
decisions - Administrative decisions are to be
taken by authorized authorities. Often, they
offer limited scope for interference in judicial
review. In the present case, though the State
Government has a constitutionally recognized
right to declare the whole result still born, yet it
may remain mindful of the fact that result may
arise, by way of consequence of its own
conduct. That unfortunate result would arise
1 All. Kamal Narayan Singh & Ors. Vs. State of U.P. & Ors.
1273
neither by way of operation of law nor any
fundamental defect in the selection process.
(Para 42, 43)

Writ petition allowed. (E-4)

Precedent followed:

1. St. of H.P. & ors. Vs Raj Kumar & ors.,
2022/INSC/605; (2023) 3 SCC 773 (Para 11, 12,
16)

2. Ramjit Singh Kardam & ors. Vs Sanjeev
Kumar & ors., (2020) 20 SCC 209 (Para 11)

3. Y.V. Rangaiah Vs J. Sreenivasa Rao, (1983) 3
SCC 284 (Para 12)

4. St. of Bihar Vs Mithilesh Kumar, (2010) 13
SCC 467 (Para 16)

5. Assam Public Service Commission Vs Pranjal
Kumar Sarma, (2020) 20 SCC 680 (Para 18)

Precedent distinguished:

1. Tej Prakash Pathak & ors. Vs Rajasthan High
Court & ors., Civil Appeal No. 2634 of 2013,
dated 20.03.2013 (Para 12)

2. Gyan Prakash Chaubey Vs St. of U.P. & ors.,
Writ - A No. 4570 of 2022, decided on
25.07.2022 (Para 12)

3. Shankarsan Dash Vs U.O.I., (1991) 3 SCC 47
(Para 12)

Present writ petition primarily seeks a
direction upon respondent no. 2 - Director,
Technical Education, Uttar Pradesh to
grant appointment to the petitioners,
pursuant to the select list 10.12.2021
published by the UPSSSC, pursuant to
Advertisement No. 22-Examination/2016.
The other prayer is for protection of their
rights under select list dated 10.12.2021
published pursuant to the Advertisement -
qua 69 posts of Librarian, Grade C,
advertised thereunder.

(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate, assisted by Ms. Neha Roy
Chaudhary,
learned
counsel
for
the
petitioners; Sri Siddharth Singhal, learned
counsel for the Uttar Pradesh Subordinate
Services Selection Commission/respondent
no.3; Sri Nisheeth Yadav, learned counsel
for the Uttar Pradesh Public Service
Commission/respondent
no.4
and,
Sri
Gopal Chandra Saxena, learned Standing
Counsel for the State-respondents.

2. Present writ petition has been filed
primarily to seek a direction upon
respondent no.2 - Director, Technical
Education,
Uttar
Pradesh
to
grant
appointment
to
the petitioners
(13),
pursuant to the select list 10.12.2021
published
by
the
Uttar
Pradesh
Subordinate
Services
Selection
Commission (hereinafter referred to as
''UPSSSC'), pursuant to Advertisement
No.
22-Examination/2016
(hereinafter
referred to as the ''Advertisement'). The
other prayer made in the writ petition
against Advertisement No. A-7/E-1/2021
dated 15.09.2021, is largely consequential.
The petitioners seek protection of their
rights under select list dated 10.12.2021
published pursuant to the Advertisement -
qua 69 posts of Librarian, Grade C,
advertised thereunder.

3. Earlier, the UPSSSC published the
Advertisement. Amongst others, 69 posts of
Librarian,
Grade
C,
at
Government
Polytechnics, in Grade Pay 2800/-, were
advertised (hereinafter referred to as the
advertised
posts).
The
prescribed
qualification for appointment on those
posts (as then existed), was graduation with
diploma in Library Science. The cut-off
date
prescribed
under
the
above
advertisement
was
19.12.2016.
The
petitioners had applied thereunder.
1274 INDIAN LAW REPORTS ALLAHABAD SERIES

4. While that selection process was
underway,
the All-India
Council
for
Technical Education ('AICTE' in short),
came out with "All India Council for
Technical Education Pay Scales, Service
Conditions and Minimum Qualifications
for Appointment of Teachers and Other
Academic Staff such as Library, Physical
Education and Training & Placement
Personnel in Technical Institutions and
Measures for the Maintenance of Standards
in
Technical
Education
-
(Degree)
Regulation, 2019", vide Notification dated
01.03.2019 (hereinafter referred to as the
'Notification'), proposing to amend, the
eligibility conditions, pay-band as also the
nomenclature etc. of advertised posts,
amongst others pertaining to Librarian,
applied for by the petitioners. Mainly, that
post was proposed to be upgraded from
Group C to Group B, from Grade Pay Rs.
2800/- to pay scale Rs. 56100/-. At the
same time, under Clause 1.4 of the
Notification, it was provided as under:

"1.4 Effective date of application
of Service Conditions

(a) All other service conditions
including
Qualifications,
Experience,
Recruitment, Promotions etc. shall come
into force with effect from the date of this
Gazette Notification.

b)
The
Qualifications,
Experience, Recruitment and Promotions
etc. during 01-01-2016 till the issue of this
Gazette Notification shall be governed by
All India Council for Technical Education
Pay
Scales,
Service
Conditions
and
Qualifications for the Teachers and other
Academic Staff in Technical Institutions
(Diploma) Regulation, 2010 dated 5th
March 2010 and subsequent notifications
issued from time to time.

c) Those who are eligible for
promotions after the date of publication of
this gazette, shall have to meet the
necessary conditions such as additional
qualification,
undergoing
industrial
training, pedagogical training, faculty
induction program, publishing research
papers etc. However, these requirements
shall be permitted to be fulfilled till 31st
July, 2022 so as to enable faculty members
in equipping them for requisite mandatory
requirements of this gazette to avail the
benefit of promotion retrospectively from
the date of eligibility.

d) It may be noted that no further
extension would be given beyond 31st July,
2022 and those who do not meet the
essential criteria despite the above grace
period, shall lose an opportunity for getting
promotion retrospectively. However, they
will be eligible for promotion from the date
they meet these criteria thereafter.

e) In cases, wherein interviews
are already conducted either for direct
recruitment
or
for
promotions
but
candidates did not join, such candidates
may be allowed to join. Their further upgradation will be governed by this
notification.

f) In cases, where advertisement
was published, applications invited but
interviews have not been conducted till
publication
of
this
notification,
the
institutes/employers are required to publish
corrigendum
and
processing
of
applications must be done in accordance
with
the
provisions
given
in
this
notification."

5. Thereafter, the State Government
formulated the "Uttar Pradesh Technical
Education (Teaching) Service Rules, 2021"
(hereinafter referred to as the 'UP Rules'),
in exercise of powers vested under Article
309 of the Constitution of India. Those
Rules were published and thus came into
force on 09.06.2021. Under Part III of the
1 All. Kamal Narayan Singh & Ors. Vs. State of U.P. & Ors.
1275
UP Rules, Rule 5 (Category - VI) - for
appointment on the post of Librarian at
Government Polytechnics etc., the source
of recruitment is as under:

"100% Direct recruitment by
Commission. All the conditions of eligibility
and academic qualifications laid down by
the AICTE shall be applicable for direct
recruitment of Librarian."

6. Under Part - IV of Rule 8 of the UP
Rules, the qualification for recruitments
were specified as those mentioned in
Appendix-II to the UP Rules. Under Clause
6 of Appendix-II thereto, the following
eligibility conditions came to be prescribed
for appointment on the post of Librarian at
Government Polytechnics etc.:

"1. Master's Degree in Library
Science with at least First Class or
equivalent
and
a
consistently
good
academic record, having the knowledge
of computer.

2. Qualifying in the National
Level Test conducted for the purpose by
UGC or other equivalent test as approved
by the UGC.

For
Diploma
Level
Institutions:

Librarians
who
have
been
recruited between 01-01-1996 and 15-032000 in the Diploma level Institutions,
with the existing recruitment rules to be
considered for up-gradation under CAS
in the next higher grade of Senior Scale
only.
However,
for
further
upward
movement under CAS, they are required
to
acquire
minimum
educational
qualification in a manner similar to that
as laid down in AICTE notification 2000
(Degree)
and
in
subsequent
Clarifications/Notifications.

(b) For Degree level Institutions:
same as above."

7. Similarly, under Rule 3(i) of the UP
Rules, service was defined as service
falling under group "A" and "B" posts in
the Directorate of Technical Education,
Government Polytechnics etc. Again, under
Appendix-I Category - VI thereto, the payscale
for
the
post of
Librarian
at
Government
Polytechnics
etc.
was
described as Entry Pay: Rs. 56,100.

8. While the Notification issued by
the AICTE came in force on 01.03.2019
and the UP Rules also came to be published
and thus enforced w.e.f. 09.06.2021 yet, the
recruitment process undertaken for the
advertised posts continued, under the
unamended
law,
in
terms
of
the
Advertisement and the pre-existing norms
prescribed by the AICTE (of year 2010).
Thus, written examination was conducted
by the UPSSSC on 28.07.2019; its result
declared on 13.10.2020; interviews held in
December 2020 and, select list published
on 10.12.2021.

9. By means of the counter affidavit
filed by the State of U.P., it has been
asserted, on 18.01.2018 the Secretary
Technical Education, Government of Uttar
Pradesh wrote to the Secretary, UPPSC (not
UPSSSC), to not conduct any further
examinations till enforcement of new Rules
(that may have become necessary to the
Government), in view of the AICTE
Notification dated 01.03.2019. At the same
time, it does appear, the Director, Technical
Education wrote to the Secretary, UPSSSC
on 16.02.2018, to place in abeyance the
ongoing selection. However, it may be
noted, at that stage, the AICTE had yet not
issued Notification dated 01.03.2019.
1276 INDIAN LAW REPORTS ALLAHABAD SERIES

10.

Plainly,
the
letter
dated
16.02.2018 appears to have been issued in
anticipation of change of law, likely to be
made by the AICTE. Nevertheless, it is not
in dispute, the earlier stipulations made by
the AICTE (of 2010), had neither ceased to
operate nor had been amended or modified,
at any earlier point in time. After
declaration of the result (of the written
examination),
by
the
UPSSSC
on
10.10.2021,
the
Director,
Technical
Education wrote to the Secretary, UPSSSC
on 23.10.2021 to cancel the requisition for
appointment on 69 Group - C posts of
Librarian at Government Polytechnics etc.
This communication though not annexed to
the counter affidavit, has been relied by the
learned Standing Counsel, at the time of
hearing.
The
existence
of
that
communication is also admitted to the
UPSSSC, in the counter affidavit filed by
that respondent.

11. In such facts, it has been
strenuously
urged by
learned
Senior
Counsel appearing for the petitioners, the
selection process undertaken was not
derailed or concluded as incomplete, upon
issuance
of
the
Notification
and/or
enforcement of the UP Rules that changed
the law pertaining to selection on such
posts. That principle is stated to be time
tested and consistently applied by Courts.
The law that existed on the date of issuance
of the Advertisement, was the only law
applicable to the selection process. There is
no doubt - the advertisement issued was
wholly consistent to the law that then
existed. To that extent, reliance has been
placed on a recent decision of the Supreme
Court in State of Himachal Pradesh &
Ors. Vs. Raj Kumar & Ors. (Civil
Appeal No. 9746 of 2011), decided on
20.05.2022 (paragraph nos. 13.1 and 13.2).
Second, it has been urged, the reasoning
given in the counter affidavit citing dying
cadre of Librarian, Group C, posts, is nonexistent, in law. Relying on yet another
decision of the Supreme Court in Ramjit
Singh Kardam & Ors. Vs. Sanjeev
Kumar & Ors., (2020) 20 SCC 209, it has
been submitted, even if the old cadre
(under which posts were advertised), were
a dying cadre yet, by virtue of prior
issuance of the Advertisement, the selection
process once underway had to be taken to
its logical end. Posts upgradation etc. could
be applied to such posts, at the appropriate
stage.

12. On the other hand, learned
Standing Counsel would submit, once the
AICTE had issued Notification dated
01.03.2019
and
upgraded
the
post
advertised (Librarian) to a Group - B post
while simultaneously making quantitative
change in the prescribed qualifications as
also pay condition etc., of the upgraded
posts, it became impossible for the State to
complete the selection process for the
advertised posts. It therefore required the
UPSSSC to withdraw the requisition made
and, to disband the selection. That
communication having been made much
earlier, the UPSSSC should have aborted
the selection process, then. In any case,
mere taking forward the selection process
and declaration of the result did not create
any right in favour of the petitioners as may
allow a writ to be issued - to grant them
appointment. Reliance has been placed on a
co-ordinate bench decision of this Court in
Gyan Prakash Chaubey Vs. State of U.P.
& Ors., (Writ - A No. 4570 of 2022,
decided on 25.07.2022). Relying on that
order, learned Standing Counsel would
contend,
with
respect
to
the
same
recruitment process and for the same posts
of Librarian, Group C, that writ petition
was dismissed, occasioned by the fact - the
1 All. Kamal Narayan Singh & Ors. Vs. State of U.P. & Ors.
1277
requisition for the advertised posts was
required to be withdrawn. He has also
relied on a reference order made by three
judge bench of the Supreme Court in Tej
Prakash Pathak & Ors. Vs. Rajasthan
High Court & Ors. (Civil Appeal No.
2634 of 2013), dated 20.03.2013. That
reference is stated to be pending. It has
been further stated, the same is likely to be
decided at an early date. Therefore, it was
permissible to alter the selection process,
upon change made to the law by the
Notification and the UP Rules. Referring to
the decision in State of Himachal Pradesh
& Ors. Vs. Raj Kumar & Ors. (supra), it
has been further submitted, the ratio in Y.V.
Rangaiah Vs. J. Sreenivasa Rao, (1983) 3
SCC 284, has been declared - not good law.
The law as it existed on the date of vacancy
having arisen, is not the law to be enforced
for
the
purpose
of
making
fresh
recruitment. In the present case, the law
stood
changed
on
01.03.2019
itself.
Referring to the Notification, it has been
submitted, no rights ever vested in the
petitioners to seek appointment under the
pre-existing/unamended law. In any case,
upon enforcement of the UP Rules, the
recruitment
must
be
conducted
and
completed in terms of those Rules. Last,
learned Standing Counsel has relied upon
the decision of the Supreme Court in
Shankarsan Dash Vs Union of India,
(1991) 3 SCC 47, to submit successful
candidates do not acquire an indefeasible
right to appointment. It remains within the
domain of the competent authority to
cancel the requisition and/or the selection
process as has been done in the present
case.

13. Learned counsel for the UPSSSC
would submit, the Commission had no
jurisdiction or authority to withdraw the
requisition. Once the requisition had been
received by the Commission, it was under a
statutory duty and obligation to conduct the
examination and publish its results. The
Commission was not obligated to do
anything further.

14. Sri Nisheeth Yadav, learned
counsel for the UPPSC would submit, the
UPPSC has yet not come into the picture,
since that expert body has not taken any
steps under the fresh/second advertisement
i.e. Advertisement No. A-7/E-1/2021.

15. Having heard learned counsel for
the parties and having perused the record, a
fundamental aspect that may be first
addressed is - whether the requisition made
by the State Government and acted upon by
the
UPSSSC
upon
issuance
of
the
advertisement dated 26.11.2016 developed
an incurable defect as may not have
allowed the UPSSSC to continue or
complete
the
process
of
selection
undertaken by it, either upon issuance of
Notification dated 01.03.2019 (by the
AICTE) or upon enforcement of the UP
Rules on 09.06.2021.

16. There may be no quarrel to the
principle invoked by learned Standing
Counsel on the strength of the decision of
the Supreme Court in State of Himachal
Pradesh & Ors. Vs. Raj Kumar & Ors.
(supra) - the law on the date of occurrence
of vacancy is not the law on which fresh
selection may be made. At the same time,
any and every change made to the law
during an ongoing selection process does
not automatically attach or govern that
selection
process,
unless
the
change/amendment
to
the
law
is
specifically made with retrospective effect.
That principle is clearly laid down by the
Supreme Court in State of Bihar Vs.
Mithilesh Kumar (2010) 13 SCC 467.
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
There, the post advertised was Assistant
Instructor, to train persons with different
abilities. Immediately upon interview being
held, an administrative decision was taken
to
engage
professionally
trained
NGOs/institutions to impart such training,
instead of hiring Assistant Instructors.
Accordingly (as in the present case),
despite a request letter sent to the Bihar
Public Service Commission, the latter
recommended to engage Mithilesh Kumar.
Upon rejection of his claim, he approached
the High Court in writ jurisdiction. That
writ petition was allowed. While affirming
the decision of the High Court, the
Supreme Court reasoned - during an
ongoing selection process, amendment
made to the selection norms would not
apply to it, unless such amendment is
specifically made with retrospective effect.
Thus, it was discussed and reasoned as
below:

"15. Reference was also made by
the learned counsel to the decision of this
Court in N.T. Devin Katti v. Karnataka
Public Service Commission [(1990) 3 SCC
157 : 1990 SCC (L&S) 446 : (1990) 14
ATC 688] , wherein it was reiterated that
where selection process was initiated by
issuing advertisement inviting applications,
selection normally should be regulated by
the rules and orders then prevailing. It was
also emphasised that service jurisprudence
provides
that
normally
amendments
effected during the pendency of a selection
process
operate
prospectively,
unless
indicated to the contrary by express
language or by necessary implication.
16. The learned counsel lastly referred to
the decision of this Court in A.P. Public
Service Commission v. B. Swapna [(2005) 4
SCC 154 : 2005 SCC (L&S) 452] , wherein
while
considering
the
norms
for
recruitment/selection
for
filling
up
vacancies
which
had
been
initially
advertised, this Court was of the view that
such norms of selection cannot be altered
after commencement of the selection
process and rules prescribing qualification,
which
were
amended
during
the
continuation of the selection process, have
prospective operation unless something to
the contrary is indicated expressly or by
necessary implication.

17. ...

18. We have carefully considered
the submissions made on behalf of the
parties and we are not impressed with the
stand taken by the petitioner State of Bihar,
that the Bihar Public Service Commission
ought not to have recommended the name
of the respondent for appointment after the
Assistant Director, Social Welfare had
requested
the
Commission
not
to
recommend any further names in view of
the decision taken by the State to have
disabled
persons
trained
through
professionally
established
NGOs/institutions
in
place
of
Instructors/Assistant Instructors for which
advertisements had already been issued by
the Commission.

19. Both the learned Single
Judge as also the Division Bench rightly
held that the change in the norms of
recruitment could be applied prospectively
and could not affect those who had been
selected
for
being
recommended
for
appointment after following the norms as
were in place at the time when the selection
process was commenced. The respondent
had been selected for recommendation to
be appointed as Assistant Instructor in
accordance with the existing norms. Before
he could be appointed or even considered
for appointment, the norms of recruitment
were altered to the prejudice of the
respondent. The question is whether those
altered norms will apply to the respondent.
1 All. Kamal Narayan Singh & Ors. Vs. State of U.P. & Ors.
1279

20. 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.

17. Though the Regulation framed by
the AICTE & published vide Notification
dated 01.03.2019 are statutory law and
therefore enforceable as such, yet neither
the AICTE nor the State Government seek
retrospective enforcement of that law.
Rather, the State Government considered
the same and framed its own Rules i.e., UP
Rules. Those were published on 09.06.2021
and enforced prospectively.

18. More fundamentally, if that effort
(by the State Government) be ignored, it
can never be ignored - under Clause 1.4 (e)
& (f) of the Notification, the AICTE itself
did not enforce that law, retrospectively.
Rather, under Clause 1.4 (e), it first
specifically protected all pending selections
that had crossed the stage of interview.
Those selections were completely insulated
from the effects of the change to the law
made by the Notification. In Assam Public
Service Commission v. Pranjal Kumar
Sarma, (2020) 20 SCC 680, a similar
clause 12.2 (in the Assam Public Service
Commission
(Conduct
of
Business)
Procedure, 2019, reads as below :

"12.2. ... and any proceeding in
relation
to
interviews,
selections
or
competitive examination pending on the
date of commencement of these Procedures
may be continued and completed in
accordance with the provisions of the Rules
in force prior to such commencement."

19. It was interpreted by the Supreme
Court, as protecting ongoing selection. It
was reasoned:

"17. One must also be conscious
of Savings Clause 12.2 incorporated in the
2019 Procedure which makes it abundantly
clear that the interviews/selection or
competitive examinations pending on the
date of commencement of the 2019
Procedure
should
be
continued
and
completed, in accordance with the 2010
Rules."

20. Second, under Clause 1.4 (f), in
case/s where interview stage had not been
conducted,
the
AICTE
directed
all
institutes/employers
to
first
'publish
corrigendum' and process the pending
applications (for selection), according to
the amended law. Thus, a conditional
enforcement of the amended/changed law
was contemplated by the AICTE. Only,
after the State Government published a
''corrigendum' to the Advertisement, the
changed law would become applicable to
the pending selection process, for the
advertised posts and not otherwise.

21. Therefore, even to the present
case, though selection process was pending
before the stage of interview, the changed
eligibility prescribed under the Notification
could not be enforced on its own. Before it
could be enforced and applied to the
impugned
selection
process
(already
underway), the employer i.e., the State
Government was required to decide to
apply it to the pending selection process
and
publish
its
decision
through
a
corrigendum advertisement, to that effect.
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
That was never done. In absence of
publication of the corrigendum by the State
Government, the pre-condition prescribed
to be fulfilled to apply the amended law
(under
the
Notification),
to
pending/impugned selection process was
never fulfilled. Hence, Regulation 1.4 (f)
did
not
become
enforceable
to
the
impugned selection process.

22. Mere enforcement of the UP
Rules also had no adverse effect on the
impugned selection process. Those being
statutory Rules, they contain no recital or
intent to enforce them retrospectively.
Plainly, they are wholly prospective.

23. Though the Writ Court may not
enforce equity against the plain letter of
statutory law, yet it may always recognize
equity in that statutory law. Here, while
bringing the amendment (to its norms),
through the Notification, the AICTE acted
mindful of ongoing selection processes, at
various
stages
of
completion.
Being
conscious of that, it first completely
protected such selection process where
stage of interview may have been crossed.
Second, it allowed for other (less complete)
selection process to be altered (in terms of
the law amended by the Notification),
subject to condition of such alteration being
first
adopted
by
the
concerned
''institutes/employers' and decimation of
that information, through publication of
corrigendum.

24. Thus, the Notification did not treat
any ongoing selection process (under the
unamended
law),
inherently
or
fundamentally
or
incurably
defective.
Rather, it sought to protect those selection
processes, as noted above. That equitable
principle, legislatively incorporated into the
Notification, must be given full effect. Its
consequences cannot be avoided or lightly
brushed away. Consequently, in absence of
any inherent defect in the law (as per the
amended law), shown to exist in the
selection process, the Court may not rush to
recognize such defect to treat annulled, the
selection
process
though,
the
State
Government has not taken any step to apply
that amended law to the impugned
selection process. To that extent, the
equitable principle contained in clause
1.4(f)
of
the
Notification
is
being
recognized in favour of the petitioners.

25. The principle relied upon by the
learned Standing Counsel on the strength of
the other order of the Supreme Court in Tej
Prakash Pathak & Ors. Vs. Rajasthan
High Court & Ors. (supra), is clearly not
applicable to the present case. The only
question that appears to have been referred
to a larger bench of the Supreme Court by
the three-judge bench order of that Court
appears to be - whether the principle "rules
of
the
Commission
stipulating
the
procedure for selection may not be changed
pending a selection process" would apply
to a case "where change sought is to
impose a more rigorous scrutiny for
selection". Clearly, that question does not
arise in the present case.

26. Here, by virtue of the amendments
made by the Notification and the UP Rules,
it is not a more stringent condition being
imposed,
to
restrict
the
zone
of
consideration
amongst
the
(selected
candidates), but a complete change of
eligibility conditions, has been made. Not
only the nomenclature of the post but its
group classification, pay-band have been
changed
along
with
the
prescribed
qualifications. Under the unamended law,
graduation with diploma in Library Science
was the prescribed qualification whereas
1 All. Kamal Narayan Singh & Ors. Vs. State of U.P. & Ors.
1281
under the amended law, a Masters' degree in
Library Science, with at least first class or
equivalent and consistently good academic
record together with knowledge of computer
have been prescribed as the educational
qualification along with National Level Test,
conducted
by
the
University
Grants
Commission. In any case, that being an order
to refer the issue to a larger bench, it causes
no legal effect, to dilute the pre-existing
precedent, at present.

27. In Ramjit Singh Kardam & Ors.
Vs. Sanjeev Kumar & Ors. (supra), the
selection sought to be made was on the post
of Physical Training Instructor (PTI in short).
That
selection
was
advertised
vide
Advertisement
No.
6 of
2006 dated
20.07.2006, issued by the Haryana Staff
Selection Commission. Amongst others, the
following
question
was
framed
for
consideration, by the Supreme Court, in that
case:

"Whether no fresh selection can be
held as directed by the learned Single Judge
since as per 2012 Rules, the post of PTI has
been declared as a dying cadre and the post
has merged into the post of TGT Physical
Education ?"

28. There, the original selection held
under the unamended law was found to be
contrary to law by a learned single judge of
the Punjab & Haryana High Court. Fresh
selection made pursuant to the original
advertisement led to a further challenge. The
Supreme Court found, there was no defect in
the fresh selection held under the original
Advertisement No.6 of 2006. In fact, it was
specifically observed, the same ought to have
been taken to its logical end.

29. Here, it must be noted, learned
Standing Counsel has not been able to
establish - the State authorities withdrew the
requisition at any stage of the proceedings.