# BALBIR KAUR & ANR v. U.P. SECONDARY EDUCATION SERVICES SELECTION BOARD, ALLAHABAD & ORS

- **Citation:** [2008] 9 S.C.R. 130
- **Court:** Supreme Court of India
- **Decided:** 2008-05-16
- **Case number:** Civil Appeal Nos.3938-3939 of 2008
- **Bench:** K.G. Balakrishnan, R.V. Raveendran, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balbir-kaur-anr-v-u-p-secondary-education-services-selection-board-allahabad-ors-24839
- **Pages:** 35

## Headnote

c
UP Secondary Education Selection Board Act, 1982 with
amending Acts of 1985, 1991, 1993, 1995 and 1998; Ss. 2(1),
10, 11, 32 and 33(C)IUP Secondary Education Services Selection Board Rules, 1983 with amending Act of 1998; rr 112(b)
and 12(5)/UP Intermediate Education Act, 1921; Appendix A
D of Regulation I of Regulations framed thereunder/UP Public
Service (Reservation for Scheduli~d Castes, Scheduled Tribes
and Other Backward Classes Act. 1994:
Selection of Principals in eclucational institutions - UP
Board issuing advertisement for recruitment of Principals -
E Challenged by Principals officiatirg on adhoc basis on ground
of qualifications etc. - Dismissed by Single Judge of High
Court - Reversed by Division Bench of High Court setting
aside selection/appointment of Principals - Correctness of -
Held: Incorrect - Note appendeo to r 12(5) of the Rules exF eludes teaching experience poss9ssed by Assistant Teacher
but making the experience posSE!SSed by serving Headmaster/Lecturer relevant - The 'Note' has the effect of modifying
the conditions of qualifying experience mentioned in Appendix A of Regulations under 1921 Act - Since the impugned
G advertisement is in conformity with the 'Note', the selection
procedure could not be faulted on that score - Division Bench
of the High Court erred in law in reversing the decision of Single
Judge of the High Court on this ground - Hence, judgment of
the Division Bench of the High Court, to the extent of reversH
1~
f
BALBIR KAUR & ANR. v. U.P. SECONDARY
131
EDUCATION
ing the decision of the Single Judge, is set aside restoring the A
;udgment of Single Judge of the High Court.
Direct recruitment of Principals - Reservation of vacancies in accordance with 1994 Act - Requirement of - Held:
Not required - S.10 of 1994 Act expressly excludes the post
of the Principal from the purview of 1994 Act - Thus, intention B
of Legislature in not providing any reservation against the post
of Principal under the 1994 Act is manifestly clear - Moreover, providing reservation against the post of Principal would
result in 100% reservation which violates Articles 15 and 16 of
the Constitution -
Thus, advertisement in question not vitiC
ated for want of provision for reservation - Constitution of India, 1950 - Articles 14 and 16.
Notification in Hindi and English in terms of Appendix D,
R 12(b) (i) of 1998 Rules - Ambiguity in Hindi version - Effect D
of - Held: No prejudice has been caused to respondents as
the discrepancy had been rectified by issuing a corrigendum
to that effect.
Amendment in 1982 Act - Insertion of r33(c) regularizing adhoc services of Principals holding the post upto August E
7, 1993, though amendment was made effective in 1998 -
Validity of - Held: Valid - In terms of amending Act of 1993
a/so, cut off date fixed for regularization of adhoc services of
Principals - Hence, it cannot be said that fixing of August 6,
1993 as the cut off date for regularization is arbitrary, warrantF
ing interference by Supreme Court.
Selection - Region-wise/district-wise - Whether violative
of equality clause under Articles 14 and 16 of the Constitution
- Held: - No.
Words & Phrases:
Year of recruitment - Meaning of in the context of s. 2(1)
of the UP Secondary Services Selection Board Act, 1982.
Uttar Pradesh Secondary Selection Board issued an
G
H
132
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A advertisement in terms of U.P. Secondary Education Selection Board Act, 1982, the Principal Act, for direct recruitment to the posts of teachers, lecturers and the heads of
several institutions regionwise. The Board was also required to consider the names .of two senior most teach8 ers of the Institutions concerned, for which names were
to be forwarded by the management in accordance with
Rule 11 (2) (b) of the U.P. Secondary Education Services
Selection Board Rules, 1988. The advertisement so issued
by the Board was challenged by the serving Principals,
c who were officiating on ad hoc basis on the grounds that
(

## Text

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A
B
[2008] 9 S.C.R. 130
BALBIR KAUR & ANR.
v.
U.P. SECONDARY EDUCATION SERVICES
SELECTION BOARD, ALLAHABAD & ORS.
(Civil Appeal Nos.3938-3939 of 2008)
MAY 16, 2008
[K.G. BALAKRISHNAN, CJI, R.V. RAVEENDRAN AND
D.K. JAIN, JJ.]
c
UP Secondary Education Selection Board Act, 1982 with
amending Acts of 1985, 1991, 1993, 1995 and 1998; Ss. 2(1),
10, 11, 32 and 33(C)IUP Secondary Education Services Selection Board Rules, 1983 with amending Act of 1998; rr 112(b)
and 12(5)/UP Intermediate Education Act, 1921; Appendix A
D of Regulation I of Regulations framed thereunder/UP Public
Service (Reservation for Scheduli~d Castes, Scheduled Tribes
and Other Backward Classes Act. 1994:
Selection of Principals in eclucational institutions - UP
Board issuing advertisement for recruitment of Principals -
E Challenged by Principals officiatirg on adhoc basis on ground
of qualifications etc. - Dismissed by Single Judge of High
Court - Reversed by Division Bench of High Court setting
aside selection/appointment of Principals - Correctness of -
Held: Incorrect - Note appendeo to r 12(5) of the Rules exF eludes teaching experience poss9ssed by Assistant Teacher
but making the experience posSE!SSed by serving Headmaster/Lecturer relevant - The 'Note' has the effect of modifying
the conditions of qualifying experience mentioned in Appendix A of Regulations under 1921 Act - Since the impugned
G advertisement is in conformity with the 'Note', the selection
procedure could not be faulted on that score - Division Bench
of the High Court erred in law in reversing the decision of Single
Judge of the High Court on this ground - Hence, judgment of
the Division Bench of the High Court, to the extent of reversH
1~
f
BALBIR KAUR & ANR. v. U.P. SECONDARY
131
EDUCATION
ing the decision of the Single Judge, is set aside restoring the A
;udgment of Single Judge of the High Court.
Direct recruitment of Principals - Reservation of vacancies in accordance with 1994 Act - Requirement of - Held:
Not required - S.10 of 1994 Act expressly excludes the post
of the Principal from the purview of 1994 Act - Thus, intention B
of Legislature in not providing any reservation against the post
of Principal under the 1994 Act is manifestly clear - Moreover, providing reservation against the post of Principal would
result in 100% reservation which violates Articles 15 and 16 of
the Constitution -
Thus, advertisement in question not vitiC
ated for want of provision for reservation - Constitution of India, 1950 - Articles 14 and 16.
Notification in Hindi and English in terms of Appendix D,
R 12(b) (i) of 1998 Rules - Ambiguity in Hindi version - Effect D
of - Held: No prejudice has been caused to respondents as
the discrepancy had been rectified by issuing a corrigendum
to that effect.
Amendment in 1982 Act - Insertion of r33(c) regularizing adhoc services of Principals holding the post upto August E
7, 1993, though amendment was made effective in 1998 -
Validity of - Held: Valid - In terms of amending Act of 1993
a/so, cut off date fixed for regularization of adhoc services of
Principals - Hence, it cannot be said that fixing of August 6,
1993 as the cut off date for regularization is arbitrary, warrantF
ing interference by Supreme Court.
Selection - Region-wise/district-wise - Whether violative
of equality clause under Articles 14 and 16 of the Constitution
- Held: - No.
Words & Phrases:
Year of recruitment - Meaning of in the context of s. 2(1)
of the UP Secondary Services Selection Board Act, 1982.
Uttar Pradesh Secondary Selection Board issued an
G
H
132
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A advertisement in terms of U.P. Secondary Education Selection Board Act, 1982, the Principal Act, for direct recruitment to the posts of teachers, lecturers and the heads of
several institutions regionwise. The Board was also required to consider the names .of two senior most teach8 ers of the Institutions concerned, for which names were
to be forwarded by the management in accordance with
Rule 11 (2) (b) of the U.P. Secondary Education Services
Selection Board Rules, 1988. The advertisement so issued
by the Board was challenged by the serving Principals,
c who were officiating on ad hoc basis on the grounds that
(i) the cut off date as fixed in terms of the 1998 amendment, for regularizing the ad-hoc Principals/teachers was
arbitrary, discriminatory and violative of Article 14 of the
Constitution of India; (ii) the exclusion and inclusion of
D candidates eligible for selection was not in conformity with
Appendix A of Regulation 1 of 'Chapter II of the Regulations framed under the U.P. Intermediate Education Act,
1921, the Intermediate Act (iii) the regionwise consideration and declaration of the result for the post of Heads
of the Institution, unlike the teachers, was violative of ArE ticles 14 and 16 of the Constitution; (iv) sub rule (5) of
Rule 1"2 of the Rules was unreasonable and discriminatory as it gave undue importance to educational qualifications and no importance to the service record; (v) the
manner of allocation of marks and the selection process
F was arbitrary and (vi) the Principal Act did not provide for
any reservation for the post of the Head of the Institution
for backward class or scheduled caste or scheduled tribe
candidates, which was contrary to the provisions and in
violation of the U.P. Public Service (Reservation for SchedG uled Caste, Scheduled Tribe and Other Backward
Classes) Act. The writ petitions were dismissed by the
Single Judge of the High Court. Aggrieved, the writ petitioners filed appeals, which were allowed by the Division
Bench of the High Court holding that the advertisement
H issued by the Board prescribing teaching experience of
BALBIR KAUR & ANR. v. U.P. SECONDARY
133
EDUCATION
4 years as Lecturer for the post of Principal of an lntermeA
diate College was contrary to the statutory requiremen,t
of academic qualifications stipulated in Appendix A o'f
Regulation 1 of Chapter II of Intermediate Act, as adopted
by sub rule 5 of Rule 15 of the Rules and as a result thereof
it was possible that many candidates having 4 years B
teaching experience of class IX and X could not apply,
resulting in serious prejudice to them and setting aside
the selections made in pursuance of the said advertisements. Hence, the present appeals filed by the selected
candidates.
c
Allowing the appeals the Court
HELD: 1.1 Rule 5 of the U.P. Secondary Education
Services Selection Board Rules, 1998 deals with academic
qualifications for appointment to the post of teacher and 0
contemplates that a candidate must possess qualification
as specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Act. As per Appendix A
of the Intermediate Regulations, a candidate should have
four years experience of teaching classes X to XII. HowE
ever, the 'Note' appended to sub rule (5) of Rule XII excludes the teaching experience of Agsistant Teacher for
being construed as qualifying him for the post of Principal of an Intermediate College, although the afore-extracted Appendix A provides for it. The 'Note' appended
to sub rule (5) of R XII of 1998 Rules clearly stipulates that F
for selection to the post of the Principal of an Intermediate College, and for the purpose of calculating the experience, services rendered as Headmaster of a High school
or as a Lecturer only has to be taken into consideration.
Obviously, the expression 'teaching experience' as conG
templated in the 'Note' would apply both to the required
experience and the experience more than that and, therefore, even for required experience only service rendered
as Headmaster/Lecturer is relevant. (Para - 19)
H
, ,
'
A
B
134
SUPREME COURT REPORTS
[2008] 9 S.C.R.
1.2 It is trite that true nature of a statutory provision
has to be determined from the content of the provision,
its import gathered from the language implied and the language construed in the context in which the provision
was enacted. (Para - 20) [152-E]
Dattatraya Govind Mahajan & Ors. vs. State of
Maharashtra & Anr. (1977) 2 SCC 548 and Rani Choudhury
vs. Lt. Col. Suraj Jit Choudhury (1982) 2 SCC 596 - relied
on.
c
1.3 Section 32 of the U.P. Secondary Education Selection Board Act provides that the provision of the U.P.
Intermediate Education Act, the Intermediate Act and
Regulations made thereunder will continue to be in force
1
in case they are not inconsistent with the Principal Act
.-
0
and the Rules made thereunder. 'Note' to sub rule (5) of
Rule 12 of 1998 Rules prescribes the requirement of experience f~r the post, which is different from what is prescribed in the said Appendix A and, therefore, there being
a cOrtflict between the two provisions, in the teeth of Section 32, the said 'Note' shall have an overriding effect over
E Appendix A insofar as the question of experience is concerned. In this view of the matter, this court is in agreement with the Single Judge of the High Court that the impugned advertisements were in conformity with the said
'Note' and, therefore, the selection procedure could not
F be faulted on that score. The contention of the writ petitioner that some persons who possessed essential qualifications had been excluded from consideration or any
person who ought not to have been considered for the
said post had been considered for selection is well
G founded. Hence, the Division Bench had erred in law in
reversing the decision of the Single Judge on the point.
(Para - 22) [153-A-F]
·
2.1 Having examined the issue in the light of the U.P.
H Public Service (Reservation for Scheduled Caste, Sched-
BALBIR KAUR & ANR. v. U.P. SECONDARY
135
EDUCATION
uled Tribes arid Other Backward Classes) Act, 1994, SecA
· ti on 10 of the 1982 Act, the Principal Act and the settled
position in law, this Court is of the view that the stand of
the respondents is not well founded. Under Section 10 of
the Principal Act, the management is required to intimate
the number of vacancies to be filled by way of selection B
by direct recruitment. While doing so, the management is
also required to intimate the number of vacancies to be
reserved for the candidates belonging to the Scheduled
· Castes, Scheduled Tribes and Other Backward Classes
of citizens in accordance with the 1994 Act. However, c
Section 10 expressly excludes the post of the Principal
from the purview of the 1994 Act. Thus, from a plain reading of the said provision, the intention of the Legislature
is manifestly clear. The legislature, in its own wisdom did
not think it proper to provide for any reservation under 0
>
the 1994 Act for the post of head of the institution. Indubitably, there is no challenge to the validity of Section 10 of
the Principal Act. Moreover, the post of the Principal in an
educational institution being in a single post cadre, in the
light of the clear dictum laid down by this Court, such a
post cannot be subjected to reservation. It will result in E
100 per cent reservation, which is not permissible in terms
of Articles 15 and 16 of the Constitution of India. (Para -
28) [156-F-H, 157 -A,B]
PG/ Chandigarh vs. Faculty Association (1998) 4 SCC 1 F
- followed.
Dr. Chakrdhar Paswan vs. State of Bihar (1988) 2SCC
214 - relied on.
2.3 Neither the Principal Act, nor the rules made thereG
under or the 1994 Act provide for clubbing of all educational institutions in the State of U.P. for the purpose of
reservation and, therefore, there is no question of clubbing the post of the Principals in all the educations institutions for the purpose of applying the principle of reserH
136
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A vation under the 1994 Act. This Court is in agreement with
the High Court that the advertisements impugned in the
writ petition were not vitiated for want of provision for reservation. It is also pertinent to note that none of the respondents belong to the reserved category of Scheduled
B Castes or Scheduled Tribes or other Backward Classes.
All of them are from the general category. Therefore, even
otherwise they have no locus standi to raise the plea of
reservation. (Para - 28) [157-D,E,F]
3. Section 2(1) of the Principal Act, as amended by
C the U.P. Secondary Service Commission and Selection
Board (Amer1dment) Act, 1992 defines "year of recruit:
ment" 1o mean a period of twelve months commencing
from 1st day of July of a calendar year. Section 10 of the
Principal Act prescribes the procedure for determination
D of number of vacancies and directs the management to
determine the number of vacancies, ·existing or likely to
fall vacant during the year of recruitment'. On a bare reading of the provision, it is manifestly clear that when a selection is held in a "year of recruitment" then all the existE ing vacancies and the vacancies likely to fall vacant during the year of recruitment are clubbed and notified. Moreover, Section 11 of the Principal Act also contemplates
preparation of a panel of the selected candidates with respect to the vacancieS' notified under Section 10(1)
F thereof. It is clear that though it may be desirable for bet-
,
ter administration but neither Section 10 nor Section 11
of the Principal Act nor the 1998 Rules as such mandate
that selection or determination of vacancies must be
yearwise and, therefore, all the vacancies which are "exG isting or which are likely to'fall vacant during the year of
recruitment" can be clubbed irrespective of the year of
occurrence of the vacancy. Moreover, second proviso to
Rule 11 (2) (a) also contemplates that the vacancies existing on the date of commencement of these Rules as well
as the vacancies which are likely to arise on 30th June,
H
BALBIR KAUR & ANR. v. U.P. SECONDARY
137
EDUCATION
"'
t
1998, shall be included in the consolidated statement by A
..
the management and sent to the Board for making selection which shows that all the existing vacancies irrespective of the year of occurrence can be clubbed for being
filled up together by the Board. In this view of the matter,
it cannot be said that Rule 11(2) (a) of the Rules is in conB
flict with the provisions of Section 10(1) of the Principal
Act, as is sought to be pleaded on behalf of the respondents. Hence, the view taken by the High Court that the
Board and the Management have not committed any error in clubbing vacancies which were existing on the date c
of selection is approved. (Para - 30) [158-D-H, 159-A,B,C]
4. This Court is of the view that insofar as the final
results are concerned, the issue that there was difference
in the Hindi and English version of the notification given
).
in Appendix 'D' framed in terms of R 12 (5)(i) of the 1998
Rules on the basis whereof quality points were to be calD
culated is of no consequence. Admittedly, there was no
ambiguity in the Hindi version of the said Appendix, which
had been followed by the Board. Though, technically the
respondents' stand that the corrigendum had not been
E
issued strictly as per the procedure prescribed may have
some substance but this Court is convinced that in the
final analysis no prejudice has been caused to them because the stated discrepancy had been rectified and the
1
English version had been brought in consonance with F
the Hindi version. In this view of the matter, it is not neeessary to dilate on the scope and effect of Article 348(3)
of the Constitution, to which reference was made by counsel for the parties. (Para - 32) [160-C,D,E]
5.1 There is no warrant for accepting as a general G
proposition that a regionwise or districtwise selection is
-(
per se violative of equality clause enshrined in Articles 14
and 16 of the Constitution. It would be discriminatory only
when the person, who alleges discrimination, demonstrates certain appreciable disadvantages, qua similarly H
138
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A situated persons, which he would not have faced but for
.;
the impugned State action. Therefore, the onus was on
'
the writ petitioners to show by cogent material that by resorting to regionwise selection, they were placed in some
disadvantageous position as compared to their counterB parts or that in this process merit was the casualty. (Para
- 34) [161-A,B]
~
5.2 In the-present case, neither Section 10 of the Principal Act nor any other statutory provision forbids
regionwise selection. Besides, no restriction was imposed
c upon the candidates insofar as their choice for the regions
was concerned. An eligible candidate could apply in any
of the regions and his application was to be considered
in accordance with the Rules. It has neither been pleaded
nor can it be held that the right of any eligible candidate
D to apply in a particular zone was curtailed or that an equal
.,
opportunity to compete had been denied to the respondents. It is not even the case of the respondents that a
less meritorious candidate has been selected on account
of regionwise selection. (Para - 35) [161-C,D,E]
E
Radhey Shyam Singh & Others, etc. vs. Union of India &
Ors. (1997) 1 SCC 60; Nidamarti Maheshkumar vs. State of
Maharashtra and Ors. (1986) 2 SCC 534 and Minor P
Rajendran vs. State of Madras & Ors. AIR (1968) SC 1012 -
held inapplicable.
r
F
5.3 The respondents have neither pleaded nor placed
on record any material to show that as a result of
regionwise selection they have not been selected despite
the fact that they were more meritorious as compared to
G the selected candidates. Hence, the selection process
cannot be struck down as violative of the principles enunciated in Articles 14 and 16 of the Constitution. (Para - 35)
}
[162-A,B]
6.1 Section 33C of the Principal Act was inserted with
H effect from 20th April, 1998 providing for the regulariza-
BALBIR KAUR & ANR. v. U.P. SECONDARY
139
EDUCATION
.,..
tion of ad-hoc Principals who had been appointed by proA
motion on or after 31st July, 1988 but not later than 6th
August, 1993, in accordance with Section 18 of the Principal Act, which pertained to ad-hoc appointments. Section
16 of the Principal Act which contemplates that all appointments will be made through the Selection Board, was sub8
stituted by the 1993 Amendment Act and was enforced with
effect from 7th August, 1993. (Para - 37) [162-G,H, 163-A]
6.2 Though Section 18 was reintroduced by the 1995
Amendment Act with certain conditions yet the Legislature fixed 6th August, 1993 as the cut off date as the State c
Government had decided to make regular selections and
steps in that behalf had already been initiated. Thus, it
cannot be held that fixing of 6th August, 1993 as the cut
off date for regularization is arbitrary or whimsical, warranting interference by the Court. Moreover, the State is D
not obliged to regularize all ad-hoc appointments merely
on the strength of their continuance on the post for a long
period, particularly when their original appointments were
not made by following a due process of selection as envisaged in the relevant rules. Hence, the judgment of the E
Division Bench to the extent it has reversed the decision
of the Single Judge is set aside; the decision of the Sing le
Judge is restored and as a consequence, the writ petitions filed by the respondents stand dismissed. (Paras -
37 & 38) [163-C,D,E,F]
F
Secretary, State of Karnataka & Ors. vs. Umadevi (3) &
Ors. (2006) 4 SCC 1 - relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3938-3939 of 2008
G
From the final Judgment and Order dated 29/9/2003 of
the High Court of Judicature at Allahabad in Special Appeal
Nos. 286 and 485 of 2001
WITH
H
140
SUPREME COURT REPORTS
[2008) 9 S.C.R.
A
C.A. Nos. 3806-3817, 3828-3838, 3841-3842, 3844,
3846-3864, 3866-3901, 3903-3905, 3907-3921, 4085-4087
and 3924-3937 of 2008 and Contempt Petition (C) No. 269/
2005 in S.L.P. (C) No. 2961/2004.
M.N. Krishnamani, S.R. Singh, Rakesh Dwivedi, J.N.
8
Dubey, S.R. Setia, Sunil Gupta, Dinesh Dwivedi, Dr. R.G. Padia,
Hari Om Yaduvanshi, Dr. Monika Gusain, Anil Kumar, Pratap
Kalra, T.N. Singh, Umang Tripathi, Niranjana Singh, Abhishek
Chaudhary, Ram Ekbal Roy, M.P. Jha,AtharAlam, SumbulAthar,
Azhar Alam, R.C. Mishra, Dr. Meera Agarwal, Manoj Swarup,
C Lalita Kohli, Anubhav Kumar (for M/s. Manoj Swarup & Co.),
J.P. Pandey, D.N. Mishra, Punit Agrawal, Praveen Kr. Singh,
Ajay Choudhary, Vibhakar Misra, Pankaj Kr. Singh, Mukesh
Verma, S.P. Jha, Dr. Vinod Tewari, M.R. Shamshad (for K.L
Janjani), Dr. Ajay Kumar, Ranbir S. Yadav, Anurag Dubey, Anu
D Sawhney, Meenesh Dubey, Upasana Tiwari, Gautam Awasti,
Nikhil Jain (for S. Srinivasan), Shalini Kumar, Neeru Vaid, Syed
Ali Ahmad (for R.D. Upadhyay), Vinita G. Upadhyay,
Awadheshwar Singh, Rajeev Sharma, D.K. Sinha, R.K. Vats,
Sangeeta Das, S.S. Jain, Ajay Veer Singh Jain, Dr. Vipin Gupta,
E Meera Mathur, Vivek Singh, T.N. Saxena (for S.N. Singh),
Deepak Goel, S. Janani, Nidhi, P.K. Jain, Shaim Narain Singh,
S.W.A. Qadri, Manoj Mishra, Rajeev Dubey, Pramod Swarup,
Praveen Swarup, Bharat Ram, Hen Lata Budgujan, Shail Kumar
Dwivedi, lmtiazAhmed, Naghma lmtiaz (forV.N. Raghupathy),
F
Rachana Srivastava, Ajay Choudhary, Kuldip Singh, Mohd.
lrshad Hanif, Aditya Sharma, Anil Sharma, Deepak Goel, K.S.
Rana, V.K. Singh, Rohit Pandey, S.N. Singh (forY.P. Dhingra),
Raj Kr. Gupta, Shea Kr. Gupta (for A.N. Baradaiyar), Chandini
Sharma, S. Srinivasan, Shankar Divate, L.B. Rai, Kamal
G Pandey, Shekhar Jha, Malvika Trivedi, Sandeep Singh,
Pradeep Misra, Yatish Mohan, Vikas R., E.C. Vidya Sagar,
SatyajitA. Desai,Amol N. Suryawanshi, Vikram Saluja (forV.R.
Anumolu), Z.K. Faizan, Goodwill lndeevar, R.K. Tripathi, Nikhil
Majithia, Prashant Kumar, 8. Aggarwalla, Rajiv Mehta, S.S.
Bandyopadhyay, Mohan Paney, Ajay Kumar, Manoj Swarup, Dr.
H
BALBIR KAUR & ANR. v. U.P. SECONDARY
141
EDUCATION [D.K. JAIN, J.]
l.P. Singh, Merusagar Samantary, Vairagya Vardhan, C.D. A
Singh, Gunratan Pandey, Kiran Suvarna, Adesh K. Gill,
Nagendra Singh, Anil K. Sharma, Vishwa Pal Singh, R.C.
Verma, T.N. Singh, Jyoti Saxena, H.C. Aggarwal, Sashi Kiran,
Vipin K. Saxena, M.P. Shorawala, N.M. Popli (for Bharat
Sangal), G.S. Sharma, V.K. Sharma, R.A. Sharma (for S.k.
B
Sabharwal), Anoop Kr. Srivastava, A. Deepankar, A.K. Misra,
K.K. Tyagi, I. Ahmad, Abhilasha, P. Narasimhan,R.K. Gupta,
S.K. Gupta, Arun Yadav (for A.N. Bardayar), Sunil Kr. Singh,
Mukti Singh, Anil Kr. Jha, Shashindra Tripathi, Ramesh Chandra
Pandey, Shailendra Bhardwaj, P.R. Dhania, Milind Kumar, c
Dharmendra, P.D. Sharma, Sanjay Singh, Arun Kr. Beriwal, Shail
Kr. Dwivedi, Pramod Dayal, Dinesh Kumar Garg, S.K. Verma,
Shakil Ahmed Syed, Arna Das, Vishwajit Singh, Atishi Dipankar,
Arvind Verma, Mamta Tiwari, Swati Sinha, Jayasree Singh (for
M/s. Fox Mandal & Co.), J.P. Dhanda, S.K. Bhatt, A.K. Sharma D
and Vimal Kumar Jad for the Appearing Parties.
The Judgment of the Court was delivered by
D.K. JAIN, J. Permission to file the Special Leave Petitions is granted.
E
2. Delay condoned.
3. Leave granted.
4. Challenge in this batch of appeals is to a common judgment rendered by a Division Bench of the High Court of JudicaF
tu re at Allahabad in Special Appeal No. 159 of 2001 and other
connected appeals, partly disagreeing with and reversing the
view of the learned Single Judge in regard to the selection of
Principals of various institutions, by direct recruitment.
5. To comprehend the controversy in these cases, it would G
suffice to refer to the facts in SLP (C) Nos.19335-19336 of 2003,
which was otherwise treated as the lead case.
6. On 12th August, 1998, 24th December, 1999 and 3rd
March, 2002, U.P. Secoridary Selection Board (hereinafter reH
142
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[2008] 9 S.C.R.
A
ferred to as the Board) issued advertisements inviting applications for direct recruitment to the posts of teachers, lecturers
and the heads of several Institutions. In these appeals we are
concerned with the selection of heads of the Institutions/Principals. The advertisements were issued under the U.P. SecondB ary Education Selection Board Act, 1982 (hereinafter referred
to as the Principal Act). In the advertisement, the vacancies for
the post of Principal in respective Institutions were indicated
regionwise. The candidates were to be considered regionwise
and results were also to be declared regionwise. The candiC dates were required to give the choice of not more than three
institutions in order of preference and if he wanted to be considered for any part:cular institution or institutions and not for
other institutions he could mention this fact in the application. In
addition to the candidates applying directly, the Board was also
required to consider the names of two senior-most teachers of
D the Institution concerned. These two senior-most teachers were
not required to apply but their names were to be forwarded by
the management in accordance with Rule 11 (2) (b) of the U.P.
Secondary Education Services Selection Board Rules, 1998
E (for short 'the 1998 Rules'). Nonetheless, they could apply for
other Institutions as well.
7. The said advertisements were challenged by the Principals, who were already heading some institutions on ad-hoc
basis, and the senior-most teachers of various institutions mainly
F
on the grounds that : (i) the cut off date i.e. 6th August, 1993
fixed by the 1998 amendment, for regularizing the ad- hoc Principals/teachers was arbitrary, discriminatory and violative of Article 14 of the Constitution of India (ii) the exclusion and inclusion of candidates eligible for selection was not in conformity
G with Appendix A of Regulation 1 of Chapter II of the Regulations
framed under the U.P. Intermediate Education Act, 1921 (for
short 'the Intermediate Act') (iii) the regionwise consideration
and declaration of the result for the post of Heads of the Institution, unlike the teachers, was violative of Articles 14 and 16 of
the Constitution; (iv) sub rule (5) of Rule 12 was unreasonable
H
BALBIR KAUR & ANR. v. U.P. SECONDARY
143
EDUCATION [D.K. JAIN, J.]
and discriminatory as it gave undue importance to educational A
qualifications and no importance to the service record; (v) the
manner of allocation of marks and the selection process was
arbitrary and (vi) the Principal Act did not provide for any reservation for the post of the Head of the Institution for backward
class or scheduled caste or scheduled tribe candidates, which
B
was contrary to the provisions and in violation of the U.P. Public
Service (Reservation for Scheduled Caste, Scheduled Tribe
and Other Backward Classes) Act, 1994 (for short the 1994
Act).
8. On the basis of rival stands of the parties, including the C
State, the learned Single Judge formulated as many as 15 points
for determination.
9. The learned Single Judge answered all the 15 points,
so formulated, against the writ petitioners. Consequently, vide D
order dated 14th February, 2001, all the writ petitions were dismissed.
10. Being aggrieved, the writ petitioners carried the matter in Special Appeals to the Division Bench. The Division Bench
affirmed the view taken by the learned Single Judge on all the
E
points except on one point (No.(iii)), namely, in regard to the
requirement of minimum qualification mentioned in the advertisements. The Division Bench held that under sub rule (5) of
Rule 15 of the Rules, the qualification as laid down in Appendix
A of Regulation 1 of Chapter II of the Intermediate Act had been
F
adopted for appointment to the post of teachers, which includes
Principals. For the post of Principal, the said provision provides
only for 4 years teaching experience of class IX to XII and not
the teaching experience of 4 years as Lecturer, as prescribed
in the advertisements. Therefore, by prescribing in the adverG
tisement 4 years teaching experience as a Lecturer, the Board
had exceeded its jurisdiction, which, being contrary to law could
not be permitted. Thus, the Division Bench came to the conclusion that the advertisement issued by the Board prescribing
teaching experience of 4 years as Lecturer for the post of PrinH
144
SUPREME COURT REPORTS
[2008] 9 S.C.R.
A cipal of an Intermediate College was contrary to the statutory
requirement of academic qualifications stipulated in Appendix
A of Regulation 1 of Chapter II of Intermediate Act, as adopted
by sub rule 5 of Rule 15 of the Rules and as a result thereof it
was po.ssible that many candidates having 4 years teaching
B experience of class IX and X could not apply, resulting in serious prejudice to them. Accordingly, the appeals were allowed
and the selections made in pursuance of the said advertisements were set aside. It is this common judgment which is questioned in these appeals by the selected candidates.
C
11. Although we have heard learned counsel for the parties on all the issues which have been answered by the Division Bench against the writ petitioners, we shall first deal with
the central point, namely, the prescription of minimum teaching
experience as Lecturer, stipulated in the impugned advertiseD ments, on which the Division Bench disagreed with the learned
Single Judge and has struck down the advertisements and
quashed the entire selection process for the said post.
12. Mr. Rakesh Dwivedi, learned senior counsel appearing in the lead case for the selected candidates, the appellants
E herein, submitted that in the light of the 'Note' appended to sub~
rule (5) of Rule XII of the 1998 Rules, the requirement of minimum experience as stipulated in Appendix A of Regulation 1 of
Chapter II of the Regulations framed under the Intermediate Act,
stands modified and, therefore, the advertisements being in
F conformity with the 'Note' could not be struck down as being in
conflict with the said Appendix. Learned counsel argued that
the 'Note' expresses the legislative intent and being a part of
the Rules, framed in terms of Section 35 of the Principal Act,
has full efficacy and cannot be ignored. In support of the propoG sition that Notes/Explanations are one of the modes by which
the legislature expresses itself and the words used therein alone
being the repository of legislative intent, any 'Note' or the 'Explanation' must be construed according to its plain language
and not on a priori considerations, reliance was placed on the
H decisions of this Court in Oattatraya Govind Mahajan & Ors.
BALBIR KAUR & ANR. v. U.P. SECONDARY
.145
EDUCATION [D.K. JAIN, J.]
Vs. State of Maharashtra & Anr. 1, Rani Choudhury Vs. Lt. Col.
A
Suraj Jit Choudhury2 and M/s.Aphali Pharmaceuticals Ltd. Vs.
State of Maharashtra & Ors.3. It was also contended that in
view of Section 32 of the Principal Act, the said Appendix has
to give way to the new Rules and, therefore, with regard to the
post of a Principal, insofar as the experience is concerned, the
B
minimum qualification would stand modified in terms of the said
'Note'. It is, thus, asserted that there is no conflict between the
contents of the impugned advertisements and the relevant Rules.
13. Dr. R.G. Padia, learned senior counsel appearing on
behalf of the ad-hoc Principals, on the other hand, submitted C
that insofar as the academic qualifications under Rule 5 of the
1998 Rules are concerned, qualifications specified in Regulation 1 of Ghapter II of the Regulations made under the Intermediate Act having been adopted for the purpose of 1998 Rules
as well, the minimum qualification for the post of Principal canD
not be at variance with what is specified in the said Appendix,
which includes experience of teaching classes IX to Xii and,
therefore, experience of teaching classes IX & X had been erroneously excluded in the impugned advertisements. It is
pleaded that Rule 12 (5) of the 1998 Rules cannot have the
E
effect of altering or modifying the conditions of qualifying experience mentioned in the Appendix of the said Regulations.
14. In order to appreciate the rival stands on the issue, it
would be expedient to briefly notice the historical background
of the statutory provisions relating to the selection of heads of F
educational institutions in the State of U.P. Prior to the enactment of the Principal Act, by U.P. Act No.5of1982, selections
for the posts of Head of the educational institutions were made
as per the provisions of the Intermediate Act by the Selection
Committee constituted by the Committee of Management, G
managing the institution, with the prior approval of the concerned
District Inspector of Schools. Minimum qualifications for the post
of the Head in an Institution were prescribed in Appendix A in
reference to Regulation 1 of Chapter II of the Intermediate Act.
However, with the coming into force of the Principal Act, with
H
146
SUPREME COURT REPORTS
(2008) 9 S.C.R
A effect from 14th July, 1981, selections for the posts were entrusted to a Commission, in order to ensure that good and competent persons were selected and appointed to the said posts.
Relevant rules in this behalf were framed by the State Government for the first time in the year 1983, called the U.P SecondB ary Education Services Commission Rules, 1983. However vide
Notification dated 13th July, 1998, the 1998 Rules, enforced
with effect from 8th August, 1998, were notified. As noted above,
selections in question were held under the 1998 Rules.
15. It appears that in order to obviate the diffic~lty faced
c by the ad-hoc teachers and the Principals/Heads oft e lnstitution, who had been continuing on the postfor a long ~e and to
bring an end to adhocism, the Principal Act was a
nded in
the year 1985 by which Section 31-A was inserted, re_,iularizing
certain appointments. Another amendment was ma~e in the
D Principal Act in the year 1991, inserting Section 33-A for regularizing some more ad-hoc appointments. It was enforced on
7th August, 1993. In the year 1993, by another amendment in
the Principal Act, Section 33-B was introduced, regularizing
some more ad-hoc appointments. In the year 1995, by way of
E an amendment in the Principal Act, enforced with effect from
28th December, 1994, four Regional Selection Boards, which
were established by the 1993 amendment, were abolished and
one Commission for the entire State was provided for. In the
year 1998, yet another amendment, effective from 20th April,
}
1998, was made to the Principal Act, entrusting the entire se-
•
F lection process to the Board in place of the Commission. By
the said amendment, Section 33-C was also inserted in the
Principal Act by which ad-hoc teachers and Heads, who were
appointed not later than 6th August, 1993, were sought to be
G regularized.
16. The pivotal Rule 5 of the 1998 Rules, prescribes academic qualifications for appointment to the post of teacher. It
reads as follows:
H
"5.Academic qualifications.-A candidate for appointment
....
.I
<,
.;
BALBIR KAUR & ANR. v. U:P. SECONDARY
147
EDUCATION [D.K. JAIN, J.]
· to a post of teacher must possess qualifications specified A
in Regulation 1 of Chapter II of the Regulations made
under the Intermediate Education Act, 1921."
17. Chapter II of the Intermediate Act deals with appointment of heads of institutions and teachers. Regulation 1 of the
said Chapter stipulates that the minimum qualification for apB
pointment as heads of institutions and teachers in any recognized institution, whether by direct recruitment or otherwise, shall
be as given in Appendix A. As per the said Appendix, the essential qualification for the post of head of the institution is as
follows:
C
S.No.
Name of the post &
Age
Desirable
educational training
qualification
experience
1
2
3
4
D
1.
Head of the institution Mini (1) Trained M.A. or mum
M.Sc. or M.Com. or 30 M.Sc. (Agri) or any years
equivalent post-graduate or any other degree which E
is awarded by corporate body specified in abovementioned para one and should have at least
teaching experience of four years in classes 9 to 12
in any training institute or in any institution or University
specified in above-mentioned para one or in any
degree college affiliated to such University or F
institution, recognized by Board or any institution
affiliated from Boards of other States or such other
institutions whose examinations are recognized by
the Board, or should the condition is also that he/she
should not be below 30 years of age .
G
Or
2.
First or second class post-graduate degree along
with teaching experience of ten years in intermediate
classes of any recognized institutions or third class
H
148
A
SUPREME COURT REPORTS
[2008] 9 S.C.R.
post-graduate- degree with teaching experience of
fifteen years.
Or
3.
Trained post-graduate diploma-holder in science.
B
The condition is that he has passed this diploma
course in first or second class and have efficiently
worked for 15 or 20 years respectively after passing
such diploma course."
18.Part Ill of the 1998 Rules lays down the procedure for
C recruitment to various categories of teachers. Rule 10 (a) thereof
provides that the mode of recruitment of Principal of a11
Intermediate College or Headmaster of a High School shall be
by direct recruitment. The number of vacancies for the purpose
of direct recruitment are determined and notified in the manner
D laid down in Rule 11. Rule 12 lays down the procedure for direct
recruitment. Relevant portion'thereof reads thus:
E
F
G
H
"12. Procedure for direct recruitment.-(1) The Board shall,
in respect of the vacancies to be filled by direct
recruitment, advertise the vacancies including those
reserved for candidates belonging to Scheduled Castes,
Scheduled Tribes and Other Backward Classes of citizens
in at least two daily newspapers, having wide circulation
in the State, and call for the applications for being
considered for selection in the proforma published in the
advertisement. For the post of Principal of an Intermediate
College or t'1e Headmaster of a High School, the name
and plac
_ 1 the institution shall also be mentioned in the
advertisement and the candidates shall be required to
give the choice of not more than three institutions in order
of preference and if he wishes to be considered for any
particular institution or institutions and for no other
institution, he may mention the fact in his application.
(2) ........ .
..
BALBIR KAUR & ANR. v. U.P. SECONDARY
EDUCATION [D.K. JAIN, J.]
' .
(3) ........ .
149
(4) The Board shall prepare lists for each category of
posts on the basis of quality points specified in Appendix
'B' or Appendix 'C', as the case may be, marks in written·
examination and marks for experience as follows:
(i)
30 per cent marks on the basis of quality points;
(ii)
40 per cent marks on the basis of the written
examination; and
A
B
(iii) 20 per cent marks for experience more than the · c
required experience in such manner that 4 marks
shall be allotted for having doctorate's degree and 2
marks shall be given for each year of such experience
with maximum of 16 marks.
Notes (1) - The teaching experience for this purpose D
shall be counted only for the recognized High School/
Intermediate College(s) or Junior High School and
such certificate shall actually mention the date of
appointment, date.