# Manish Kumar Singh & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-25
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-kumar-singh-ors-v-state-of-u-p-ors-44188
- **Pages:** 22

## Text

_Characters 0–39,738 of 72,052. This is a partial read: ask again with offset=39738 for what follows._

7 All. Manish Kumar Singh & Ors. Vs State Of U.P. & Ors.

67

"14. It is no doubt true that it is with the domain of the Appointing Authority to
adopt to any of the modes of appointment in respect of the vacancy in question in accordance with
the statutory provisions applicable.

15. It may be recorded that against the vacancy, which is required to be filled by
direct recruitment, the Committee of Management has a discretion to fill up the vacancy by way of
transfer. Such is the language of Section-16. The issue, however, is as to whether such discretion is
to be exercised by the Committee of Management within a particular time frame/ upto a particular
stage, or at any point of time till actual appointment is made against the vacancy."

40. Thus, the Court concludes that the Committee of Management of a recognized
institution possesses the discretion to decide and choose one of the modes/processes enumerated in
Section 16 of the Board Act, 1982 for making appointment against the vacancy on the post of
Principal of a recognized institution, however, the said discretion is available only before
advertisement is published by the Selection Board for making appointment by way of direct
recruitment against the vacancy notified to it.

41. In view of the discussions made and reasons given herein above, the writ petition fails
and is resultantly dismissed.

42. However, while dismissing the writ petition, it is ordered that the authorities concerned
shall, before passing the order for appointment by way of transfer, scrutinize the process adopted
for the said purpose strictly in accordance with law, specially keeping in view the provisions
contained in Regulations 55 to 61 of Chapter-I of the Regulations framed under Section 16-G (2)(c)
of U.P. Intermediate Education Act, 1921

43. There will be no order as to costs.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2016

BEFORE

THE HON'BLE MANOJ MISRA, J.

Writ A No.- 30156 Of 2016
&
Connected With Other Cases

Manish Kumar Singh & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioners:
68 INDIAN LAW REPORTS ALLAHABAD SERIES

Rahul Srivastava

Counsel for Respondents:
C.S.C., Mrigraj Singh

Held

The State Government had jurisdiction to fix the cut-off date (16.06.2016) for possession of minimum
educational/training qualification in exercise of its executive power under Article 162 of the Constitution,
particularly since the U.P. Basic Education (Teachers) Service Rules, 1981 are silent on such fixation.
The 1981 Rules do not confer exclusive authority upon the District Basic Education Officer to fix the cut-off
date; nor do they prohibit the State from issuing such executive directions.
Rule 6 of the 1981 Rules, which prescribes a cut-off date for age qualification, does not mandate that the
same cut-off date must apply for educational/training qualification.
Fixation of 16.06.2016 as the cut-off date is not arbitrary merely because certain candidates (BTC-2013 batch)
fell on the wrong side of the cut-off date.
The cut-off date correlates with the date on which the State Government granted permission to initiate
recruitment and cannot be termed capricious, whimsical, or wide off the reasonable mark.
Hardship caused to a particular batch does not render a cut-off date unconstitutional unless it is shown to be
arbitrary or discriminatory.
The cut-off date does not create a class within a class; BTC-2013 candidates constitute a subsequent batch
and are not similarly situated to earlier batches.
No violation of Articles 14 or 16 of the Constitution was established.
The writ petitions were dismissed.

CASE LAW CITED

Krushna Chandra Sahu (Dr) v. State of Orissa
Bhupinderpal Singh v. State of Punjab
U.P. Public Service Commission v. Alpana
State of Bihar v. Ramjee Prasad
Ramrao v. All India Backward Class Bank Employees Welfare Assn.
University Grants Commission v. Sadhana Chaudhary
Union of India v. Parameswaran Match Works
Sushma Sharma (Dr) v. State of Rajasthan

(Delivered by Hon'ble Manoj Misra, J.)

1. These writ petitions have been filed by candidates who have undertaken the BTC-2013
Training Course and have given their final semester examinations but before their result of the final
semester could be declared, the State Government by Notification dated 16.06.2016 granted
permission for recruitment of 16448 Assistant Teachers in Primary Schools under the U.P. Basic
Education Board with a rider that a candidate to be eligible to apply for appointment must hold
minimum educational as well as training qualification by or before 16.06.2016. Aggrieved by the
cut-off date so fixed these petitions have been filed assailing the same with additional prayers that
their final semester examination results be declared and that they may be permitted to apply for the
post. Considering that all these petitions raise common questions of law and on facts there are no
7 All. Manish Kumar Singh & Ors. Vs State Of U.P. & Ors.

69
issues, with the consent of learned counsel for the parties these petitions were heard together and
are being decided by a common judgment.

2. In these writ petitions I have heard Sri R.K. Ojha, Sri G.K. Singh, learned senior
counsels, Sri Rahul Srivastava, Sri Sreeprakash Singh, Sri Ganesh Mani Tripathi, Ms. Afshan
Shafaut and Sri Yogendra Kumar for the petitioners; learned Standing Counsel for the State; Sri B.
P. Singh and Sri A.K. Yadav for the Basic Education Board, U.P. and the Basic Shiksha Adhikari
of the districts concerned; and Sri Ashok Khare, learned Senior Counsel assisted by Ashish Tripathi
for the intervening respondents in Writ A No.30156 of 2016, which has been treated and heard as
the leading case.

3. The record reflects that by government notification dated 29.07.2015, the Govt. of U.P.
identified and approved creation of 19,948 posts of Assistant Teacher in Basic Schools run and
established by U.P. Basic Education Board across various districts within the State with a
declaration that posts would be filled in stages, dependent on the need to fill up the posts, subject to
availability of budgetary support. Thereafter by government notification dated 14.12.2015 out of
those 19,948 posts of Assistant Teacher, 3,500 posts were converted into that of Assistant Teacher
(Urdu Language) with a declaration that the earlier government notification dated 29.07.2015 be
treated as amended to that extent. Subsequently, by government notification dated 05.01.2016, a
decision was taken to fill up those 3,500 posts of Assistant Teacher (Urdu Language) and
guidelines were laid therein in respect of the recruitment process. Pursuant to that advertisements
were published calling for applications from eligible candidates for those 3500 posts in various
districts. The advertisements so published provided that a candidate must possess the requisite
essential educational and training qualification by the last date fixed for online application
registration. In respect of remaining 16,448 posts of Assistant Teacher that were identified and
creation of which was approved by notification dated 29.07.2015, a government notification dated
16.06.2016 was issued thereby granting permission for recruitment on the said posts with a specific
direction that only those candidates would be eligible for participation in the recruitment process,
who possess the minimum educational/training qualification on the date of issuance of the
government notification. It was observed in the notification that the Lucknow Bench of this Court
in Writ Petition (S/S) No. 326 of 2016 (Mahendra Pratap Singh and seven others v. State of U.P.
and Others) had directed that in future selections, the date on which the eligibility is to be
determined should be specifically fixed and not left to unforeseen circumstances as had arisen in
that case. Pursuant to the said government notification, advertisements were issued by the Basic
Shiksha Adhikari in various districts within the State of Uttar Pradesh calling for applications from
eligible candidates against those 16,448 posts of Assistant Teacher by specifically providing in the
advertisement that a candidate must possess minimum educational qualification/training
qualification by 16.06.2016 as was directed by the Government Notification dated 16.06.2016. It is
this cut-off date which has been assailed in these writ petitions.

4. The case of the petitioners is that they are all undergoing training course of BTC -2013
and that they have all given their examination by the month of May, 2016 but their results have not
been declared prior to 16.06.2016, which is the cut-off date, even though, in ordinary course, their
70 INDIAN LAW REPORTS ALLAHABAD SERIES

results ought to have been declared by the said date, therefore, this cut-off date seriously affects
their right to be considered for appointment. It is their case that, subsequently, their results have
been declared before the last date fixed for submission of the application form but because of the
cut off date they could not apply. It is their case that if there had been no such cut off date for
holding educational/ training qualification then by law the last date for submission of application
form would have been the date for determining eligibility and in that scenario they would have all
been eligible to apply. Accordingly, it is their prayer that the cut off date 16.06.2016 be struck
down and all those who hold eligibility qualification by last date fixed for submission of
application be allowed to apply.

5. During the course of arguments in Writ A No. 30156 of 2016 i.e. the leading petition, on
06.07.2016 an order was passed by this Court requiring the petitioners to file a supplementaryaffidavit bringing on record such material so as to demonstrate that result of BTC course of any
subsequent year, within the State of U.P., was declared prior to the result of BTC course of any
previous year. This exercise was undertaken to ascertain as to whether result of BTC-2014 course
was declared ahead of BTC-2013 course or not. Pursuant to the said direction, during the course of
hearing, the learned counsel for the parties stated that as per their instructions result of any
subsequent BTC course has not been declared ahead of BTC-2013 course.

6. Learned counsel appearing on behalf of the petitioners have assailed the cut-off date
16.06.2016 on the following grounds:

(a) That the recruitment on the posts of Assistant Teacher in Basic Schools, run by
Basic Education Board, U.P., is governed by U.P. Basic Education (Teachers) Service Rules, 1981
(hereinafter referred to as "1981 Rules"), which have been made in exercise of power under subsection (1) of Section 19 of the U.P. Basic Education Act, 1972 (hereinafter referred to as "1972
Act"). Rule 4 of 1981 Rules provides that there shall be separate cadres of service for each local
area. "Local area" is defined in Rule 2(1)(i) as an area over which a local body exercises
jurisdiction. Rule 14 of 1981 Rules provides for determination of vacancies and preparation of list
of candidates for appointment. Sub-rule (1) of Rule 14 provides that in respect of appointment, by
direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant
Mistress of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall
determine the number of vacancies as also the number of vacancies to be reserved for candidates
belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under
Rule 9, and notify the vacancies in at least two newspapers having adequate circulation in the State
as well as in the concerned district thereby inviting applications from candidates possessing
prescribed training qualification from the district concerned and who have passed the Teacher
Eligibility Test conducted by Government of U.P. or the Government of India. It has been
submitted that "Appointing Authority" has been defined in Rule 2 (1) (b) of the Rules as the
District Basic Education Officer provided that Additional District Basic Education Officer
(Women) shall be deemed to be the appointing authority in relation to women teachers in a district
where such officer is posted. Rule 2 (1) (f) defines "District Basic Education Officer" as an officer
appointed by the State Government as such for a particular district. Rule 3 provides that the 1981
7 All. Manish Kumar Singh & Ors. Vs State Of U.P. & Ors.

71
Rules shall apply to all teachers of local bodies transferred to the Board under Section 9 of the Act,
1971 and all teachers employed for the Basic and Nursery Schools established by the Board.

By placing reliance on the aforesaid provisions of the Rules, 1981, it has been
contended on behalf of the petitioners that the post of an Assistant Teacher contemplated by the
1981 Rules is a post in reference to a particular local area whose appointing authority is the District
Basic Education Officer of the district concerned, who has not only to determine the vacancies but
also to notify the same by publication in newspapers having adequate circulation in the State as
well as in the district concerned inviting applications from candidates possessing prescribed
training qualifications from the district concerned and who have passed the Teacher Eligibility
Test, conducted by Government of U.P. or the Government of India. It has been submitted that
since it is the District Basic Education Officer who has to determine the vacancies and thereafter
notify the vacancies calling for applications from candidates possessing prescribed educational
/training qualification from the district concerned, it is the District Basic Education Officer alone,
who can fix a cut-off date for possession of minimum educational / training qualification by an
applicant whereas the State Government would have no jurisdiction to fix any such cut off date. It
has been submitted that in the instant case, the cut-off date has not been fixed by the District Basic
Education Officer by independently exercising his own mind but has been fixed under the direction
of the State Government therefore the cut-off date so fixed is vitiated by non application of mind
and deserves to be struck down and as the 1981 Rules do not provide for any cut off date for
holding minimum educational/ training qualification, the last date for submission of the application
would be deemed to be the cut off date by which a candidate must possess the educational /training
qualification.

(b) That 16,448 posts of Assistant Teacher for which recruitment process has been
initiated by notification dated 16.06.2016, were identified and determined by the State Government
by notification dated 29th July, 2015 as part and parcel of 19,948 posts of Assistant Teacher out of
which 3500 posts were converted into posts of Assistant Teacher (Urdu Language) for which the
recruitment process was initiated separately by Government Notification dated 05th January, 2016
wherein the cut-off date for holding the minimum educational qualification/training qualification
was the last date for submission of application. It has been submitted that the State cannot adopt
two different criteria for fixing cut-off date for eligibility to apply in respect of posts that were
initially identified and determined by a common notification.

(c) That the cut-off date has been fixed only to exclude a large section of candidates
who though had undertaken the BTC-2013 course examination in the month of May, 2016 but their
results were not declared by June, 2016 even though, in ordinary course, their results should have
been declared much earlier. It has been submitted that the objective of an employer should be to
ensure that, as far as possible, maximum number of candidates apply for appointment so that the
selection is broad based and meritorious persons are appointed. But by adopting an arbitrary cut off
date a large section of candidates who were undertaking BTC 2013 course have been excluded
from consideration, therefore the entire selection would be limited to those candidates who had
72 INDIAN LAW REPORTS ALLAHABAD SERIES

undertaken the BTC course of 2012 or before thereby affecting the quality of teachers ultimately
appointed.

(d) That the cut off date so fixed suffers from the vice of malice in law inasmuch as
the State was throughout aware that BTC 2013 course batch of candidates had already given their
examination and their results would be declared shortly, therefore, fixation of a cut-off date in the
month of June, 2016 just before the declaration of their results was made maliciously to exclude
their consideration and such exclusion was made only to benefit those who had secured training in
the preceding years but were not successful in finding their names in the select list in respect of
earlier recruitment.

(e) That Rule 6 of 1981 Rules provides for a criteria on the basis of which a cut-off
date in respect of eligibility could be fixed. According to Rule 6, a candidate, for recruitment to any
post referred to in clause (a) of Rule 5 or sub-clauses (iii) and (iv) of clause (b) of Rule 5 or proviso
to Clause (b) of Rule 5, must have attained the age of Twenty one years and must not have attained
the age of more than thirty-five years on the first day of July following the year in which the
vacancy is notified. This discloses the legislative policy that the cut-off date for possessing
minimum educational/training qualification must be in sync with the cut-off date fixed for age
qualification. Accordingly, the cut-off date for holding minimum educational/ training
qualification, which is even prior to the date of the advertisement, is nothing but arbitrary and is not
in accordance with Rule 6 of 1981 Rules.

7. Per contra, the learned counsel for the respondents have submitted as follows:

(a) That 1972 Act is an Act to provide for the establishment of a Board of Basic
Education and for matters connected therewith. Section 3 of the 1972 Act provides for constitution
of the Board with effect from such date as the State Government may, by notification in the
Gazette, appoint. Section 4 provides for functions of the Board and states that subject to the
provisions of the said Act, it shall be the function of the Board to organise, co-ordinate and control
the imparting of basic education and teachers' training therefor in the State, to raise its standards
and to correlate it with the system of education as a whole in the State. Section 13 of 1972 Act
provides for the control by the State Government. It provides that the Board shall carry out such
directions as may be issued to it from time to time by the State Government for the efficient
administration of the 1972 Act. Sub-section (3) of section 13 of 1972 Act provides that the Board
or any local body shall furnish to the State Government such reports, and other information, as the
State Government may from time to time require for the purposes of the Act. Section 19 of 1972
Act provides for rule making power and vests the power in the State Government. Section 19 (1) of
the 1972 Act provides that the State Government may, by notification, make rules for carrying out
the purposes of the Act. Sub-section (2) of Section 19 provides that in particular, and without
prejudice to the generality of the foregoing power, such rules may provide for all or any of the
matters enumerated there under. Clause (a) of sub-section (2) of Section 19 empowers State
Government to make rules to provide for the recruitment, and the conditions of service of persons
appointed to the posts of officers, teachers and other employees. In exercise of its power under
7 All. Manish Kumar Singh & Ors. Vs State Of U.P. & Ors.

73
Section 19 of 1971 Act, 1981 Rules have been notified. Rule 4 of 1981 Rules provides that there
shall be separate cadres of service under the rules for each local area. The strength of the cadre of
the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as
may be determined by the Board from time to time with the previous approval of the State
Government provided that the appointing authority may leave unfilled or the Board may hold in
abeyance any post or class of posts without thereby entitling any person to compensation. Provided
further that the Board may, with the previous approval of the State Government, create from time
to time such number of temporary posts as it may deem fit.

Relying on the aforesaid provisions, on behalf of the respondents, it was contended
that strength of the cadre of the teaching staff pertaining to a local area and the number of the posts
in the cadre is subject to the approval of the State Government and the State Government, by virtue
of section 13 of the 1972 Act is empowered to issue directions from time to time for the efficient
administration of the 1972 Act, which the Board is under an obligation to carry out. Likewise, the
Board has power under Section 4 of the 1972, Act to organise, co-ordinate and control the
imparting of basic education and teachers' training therefor in the State and to take all such steps as
may be necessary or convenient for, or may be incidental to the exercise of any power, or the
discharge of any function or duty conferred or imposed on it by the 1972, Act. Section 6 of Act,
1972 empowers the Board to appoint such person, officers, teachers and other employees as it may,
with the previous approval of the State Government, think fit for the purpose of enabling it to
efficiently discharge its function. Section 19 (2)(a) provides that the State Government may make
rule in respect of the recruitment, and conditions of service of persons appointed to the posts of
officers, teachers and other employees under Section 6 of the Act, 1972. It has been submitted that
keeping in mind the aforesaid provisions and the scheme of the 1972 Act and the 1981 Rules, it can
be safely concluded that in absence of there being a provision to the contrary in the 1972 Act or the
1981 Rules, the State was well within its executive power, as conferred on it by Article 162 of the
Constitution of India, to fix a cut-off date in respect of possession of minimum educational/training
qualification by a candidate to be eligible for participating in the recruitment process.

(b) That the cut-off date, which has been fixed, is the date on which the recruitment
process for 16,448 posts was permitted by State Government vide notification dated 16.06.2016,
therefore, keeping in mind the direction given by the Lucknow Bench of this Court mandating
fixing of a cut off date for possession of eligibility qualifications to avoid confusion, fixing of cut
off date by the State Government in exercise of its executive power to ensure uniformity across the
state cannot be said to be arbitrary. It has been submitted that the cut-off date, so fixed, is not wide
off the mark or out of the Hat so as to be termed arbitrary inasmuch as it co-relates with the date on
which the recruitment process was permitted and since neither the 1972 Act nor the 1981 Rules
provides for a specific cut-off date in respect of holding of minimum educational /training
qualification, the State was well within its jurisdiction to fix a cut-off date as has been fixed and the
Board has rightly accepted the same and it has been uniformly applied by the appointing authorities
across the State of Uttar Pradesh. It has been submitted that merely because certain class of persons
fall on the wrong side of the cut-off date it would not be a ground to challenge the cut-off date.
74 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) That the cut off date so fixed is neither in violation of Rule 6 nor Rule 14 or for
that matter any of the provisions of the 1981 Rules and, therefore, there are no fetters on the power
of either the State Government or the Board or the Basic Shiksha Adhikari concerned to fix a cut
off date as has been done. Further, having same cut off date for attaining minimum eligibility, as is
for the age, provided by Rule 6 of 1981 Rules, may create an anomalous situation, inasmuch as, if
it is so, it could be possible that at the end of recruitment process a selected candidate though may
be eligible in terms of age but may not be in possession of minimum educational/training
qualification. Therefore, fixing a cut off date for holding eligibility qualifications on the same
parameter as is for the age qualification would not be justified and, therefore, Rule 6 cannot be used
as a guiding factor to determine the cut off date for holding educational/ training qualifications. It
has been submitted that likewise Rule 14 of the 1981 Rules do not provide any guidance for fixing
a cut off date in respect of possession of minimum educational/ training qualification. It only
provides for notification of the vacancies by the appointing authority in newspapers calling for
applications from candidates possessing prescribed educational/training qualification to participate
in the recruitment process. But it nowhere restricts the right of the appointing authority to fix a cutoff date for holding minimum educational/training qualification. It has thus been submitted that the
impugned cut-off date is not against the provisions of 1981 Rules.

(d) That no one has vested right that he should be considered for appointment. The
right of consideration commences from the advertisement and is subject to the various conditions
of the advertisement. It cannot be said that the right of consideration flowing from advertisement is
distinct and serverable from various conditions of eligibility prescribed in the advertisement. A
candidate would have a right of consideration in accordance with the advertisement, if he fulfills
various qualifications and eligibility prescribed thereunder and not otherwise. It is not open to a
candidate to suggest that he is entitled for the benefit of the advertisement because he falls within
the age parameter and therefore the other part which fixes a cut off date for possession of minimum
educational/training qualification should be ignored. As the cut off date has been fixed by a
Government Notification, which the State Government is empowered to issue not only by the
statutory scheme governing basic education but also by Article 162 of the Constitution of India,
particularly, in absence of any rule or statutory provision to the contrary, therefore, the cut off date,
which is in sync with the date on which the recruitment process was permitted by Government
Notification dated 16th June, 2016, cannot be said to suffer from the vice of arbitrariness nor it can
be said that it is based on no intelligible criteria, particularly, when no batch of BTC course
conducted by the Board subsequent to BTC -2013 has been declared pass before the cut off date. It
has been submitted that the BTC -2013 batch cannot be equated with BTC-2012 batch or batches of
preceding year therefore the cut off date does not create a class within a class so as to make the cut
off date unreasonable or arbitrary. Likewise it cannot be alleged that fixation of such cut off date
amounted to malice in law. It has been submitted that the cut off date cannot be assailed merely
because it restricts the zone of consideration because whenever a cut off date is fixed, there are
always persons who fall on the other side of the cut off but that by itself is not a ground on which a
cut off date can be successfully challenged.

ISSUES FOR DETERMINATION
7 All. Manish Kumar Singh & Ors. Vs State Of U.P. & Ors.

75
8. Having considered the rival submissions and having perused the record, it would be
useful to cull out the issues, which arise for determination in these proceedings. In the opinion of
the Court following issues arise for determination:-

(i) Whether the State Government had jurisdiction to fix a cut off date for possession
of minimum educational/training qualification in respect of appointment on 16448 posts of
Assistant Teacher in Primary Schools run by the U.P. Basic Education Board?

(ii) Whether the cut off date, as fixed, is in violation of the provisions of U.P. Basic
Education (Teachers) Service Rules, 1981?

(iii) Whether the cut off date is arbitrary and discriminates persons similarly situated
on no intelligible criteria?

RELEVANT PROVISIONS OF 1972 ACT and 1981 RULES

9. Before proceeding to decide the aforesaid issues, it would be useful to examine the
relevant provisions of the 1972 Act and the 1981 Rules.

10. The 1972 Act is an Act to provide for the establishment of a Board of Basic Education
and for matters connected therewith. Section 2 (1) (b) defines basic education as education up to
eighth class imparted in schools other than high schools or intermediate colleges. "Board" is
defined in section 2(c) as the Uttar Pradesh Board of Basic Education constituted under Section 3.
Section 3 provides that from such date as the State Government may, by notification in the Gazette,
appoint, there shall be established a Board to be known as the Uttar Pradesh Board of Basic
Education. Section 4 provides for the functions of the Board. Sub-section (1) of section 4 provides
that it shall be the function of the Board to organise, co-ordinate and control the imparting of basic
education and teachers' training therefor in the State, to raise its standards and to correlate it with
the system of education as a whole in the State. Sub-section (2) of Section 4 provides that without
prejudice to the generality of the provisions of sub-section (1) the Board shall be empowered to do
various acts enumerated thereunder.

11. Section 6 of the 1972 Act provides as follows:

"6. Officers and other employees of the Board.--(1) For the purpose of enabling it
efficiently to discharge its functions under this Act the Board may appoint such number of officers,
teachers and other employees as it may, with the previous approval of the State Government, think
fit."

12. Section 13 of 1972 Act provides for control by the State Government by providing as
follows:-
76 INDIAN LAW REPORTS ALLAHABAD SERIES

"13. Control by the State Government : (1) The Board shall carry out such
directions as may be issued to it from time to time by the State Government for the efficient
administration of this Act.

(2) If in, or in connection with, the exercise of any of its powers and discharge of
any of the functions by the Board under this Act, any dispute arises between the Board and the
State Government, or between the Board and any local body, the decision of the State Government
on such dispute shall be final and binding on the Board or the local body, as the case may be.

(3) The Board or any local body shall furnish to the State Government such reports,
returns and other information, as the State Government may from time to time require for the
purposes of this Act."

13. Section 19 of the 1972 Act provides for the rule making power of the State
Government. The same is reproduced herein below:-

"19. Power to make Rules.- (1) The State Government may, by notification, make
rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely-

(a) the recruitment, and the conditions of service of persons appointed to the posts
of officers, teachers and other employees under Section 6;

(b) the tenure of service, remuneration and other terms and conditions of service of
officers, teachers and other employees transferred to the Board under Section 9;

(c) the recruitment, and the conditions of service of the persons appointed, to the
posts of teachers and other employees of basic schools recognized by the Board.

(d) any other matter for which insufficient provision exists in the Act and provision
in the rules is considered by the State Government to be necessary.

(e) any other matter which is to be or may be prescribed."

14. In exercise of power under Section 19 (1) of the 1972 Act the Governor has framed
1981 Rules. Rule 4 of Rules, 1981 provides as follows:-

"4. Strength of the service.- (1) There shall be separate cadres of service under
these rules for each local area.
7 All. Manish Kumar Singh & Ors. Vs State Of U.P. & Ors.

77
(2) The strength of the cadre of the teaching staff pertaining to a local area and the
number of the posts in the cadre shall be such as may be determined by the Board from time to time
with the previous approval of the State Government.

Provided that the appointing authority may leave unfilled or the Board may hold in
abeyance any post or class of posts without thereby entitling any person to compensation.

Provided further that the Board may, with the previous approval of the State
Government, create from time to time such number of temporary posts as it may deem fit."

15. Rule 5 of 1981 Rules provides for the sources of recruitment to the various categories
of posts mentioned thereunder. Part IV of the 1981 Rules provides for the qualification.

16. Rule 6 of the 1981 Rules provide for the qualification in respect of age of a candidate,
which is being reproduced herein below:-

"6. Age.- A candidate for recruitment to any post referred to in Clause (a) or subclauses (iii) and (iv) of clause (b) of Rule 5 or proviso to Clause (b) of Rule 5, must have attained
the age of Twenty one years and must not have attained the age of more than thirty-five years on
the first day of July following the year in which the vacancy is notified:

Provided that the upper age limit shall in the case of candidates belonging to the
Scheduled Castes, Scheduled Tribes, Backward Classes be Greater by five years or as provided by
the Government from time to time:

Provided further that the upper age limit shall in the case of a candidate, who is
ex-serviceman, be greater by three years or as provided by the Government from time to time:

Provided also that the upper age limit shall be greater by fifteen years in the case
of a handicapped candidate:

Provided also that where after successful completion of a course of training
prescribed for teachers of Basic Schools, a candidate could not get appointment due to nonavailability of vacancy in the district, the period he has remained unappointed shall not be counted
for the calculation of his age if he has not attained the age of more than fifty years on the date of
appointment:

Provided also that no upper age limit shall apply in case of B.Ed./ Lt./ B.P.Ed./
C.P.Ed. Or D.P.Ed. Trained candidates who have completed special B.T.C. Training Courses in
the year 1999:

Provided also that in case of candidates having proficiency in Urdu and having
completed two years B.T.C. Urdu special B.T.C. training course or completed special B.T.C.
78 INDIAN LAW REPORTS ALLAHABAD SERIES

training course the upper age limit shall be such as may be determined from time to time by the
Government.

Provided also that the upper age limit in case of Mualim-e-Urdu degree holders
who had obtained such degree before August 11, 1997 shall be not exceeding the age of
superannuation:

Provided also that for the selection of candidates as Trainee Teachers, the upper
age limit shall be such as may be determined from time to time by the Government."

17. Rule 8 of 1981 Rules provides for the essential qualifications for a candidate to be
eligible for appointment to a post. It does not fix any date for holding of such qualification but does
specify that for appointment such qualifications are essential.

18. Rule 14 of 1981 Rules provides for determination of vacancies and preparation of list.
The same is being reproduced herein below:-

"14. Determination of vacancies and preparation of list.-(1) (a) Determination of
vacancies and preparation of list, in respect of appointment, by direct recruitment to the post of
Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools
under Clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as
also the number of vacancies to be reserved for candidates belonging to Scheduled Castes,
Scheduled Tribes, Backward Classes, and other categories under Rule 9 and notify the vacancies in
at least two leading daily news papers having adequate circulation in the State as well as in
concerned district inviting applications from candidates possessing prescribed training
qualification from the district concerned and teacher eligibility test passed, conducted by the
Government or by the Government of India.

(1) (b) The Government may from time to time decide to appoint candidates, who are
graduates along with B.Ed./ B.Ed. (Special Education)/ D.Ed. (Special Education) and who have
also passed teacher eligibility test conducted by the Government or by the Government of India, as
trainee teachers. These candidates after appointment will have to undergo six months special
training programme in elementary education recognised by National Council of Teacher Education
(NCTE). The appointing authority shall determine the number of vacancies as also the number of
vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes.
Backward Classes, and other categories under Rule 9 and advertisement would be issued in at
least two leading daily news papers having adequate circulation in the State as well as in
concerned district inviting applications from candidates who are graduates along with B.Ed./ B.Ed.
(Special Education)/ D.Ed. (Special Education) and who have also passed teacher eligibility test
conducted by the Government or by the Government of India.

(1) (c) The trainee teachers, after obtaining the certificate of successful completion
of six months special training in elementary education shall be appointed as assistant teachers in
7 All. Manish Kumar Singh & Ors. Vs State Of U.P. & Ors.

79
Junior basic schools against substantive post in regular pay-scale. The appointing authority will be
duty bound to appoint the trainee teachers as assistant teachers within one month of issue of
certificate of successful completion of said training.

(2) The appointing authority shall scrutinize the applications received in pursuance
of the advertisement under Clause (a) or (b) of sub-rule (1) of Rule 14 and prepare a list of such
persons as appear to possess the prescribed academic qualifications and be eligible for
appointment.

(3) (a) The names of candidates in the list prepared under sub-rule (2) in
accordance with clause (a) of sub-rule (1) of Rule 14 shall then be arranged in such manner that
the candidate shall be arranged in accordance with the quality points specified in the appendix-I:

Provided that if two or more candidates obtain equal marks, the candidate senior in
age shall-be placed higher.

(b) The names of candidates in the list prepared under sub-rule (2) in accordance
with clause (b) of sub-rule 1) of Rule 14 shall then be arranged in such manner that the candidate
shall be arranged in accordance with the quality points specified in the appendix-II:

Provided that if two or more candidates obtain equal marks, the candidates senior in
age shall be placed higher.