Shatrunjai Singh vs State of U.P. and Others

Ravi S. Dhavan, J.—In the present writ petition the facts on which there is no issue are to the effect that in Uchchtar Madhyamik Vidyalaya, Bhatawali Bazar, District Gorakhpur, a permanent Lecturer in Chemistry died on 22 January, 1992. Thus, there was a substantive vacancy on the post of a Lecturer in Chemistry. At the time when the vacancy had occurred, it may be said, at the outset, that the amendments to the U.P. Secondary Education Services Commission and Selection Boards Act, 1982, had not happend. Thus, in accordance with Section 18, in the facts and circumstances of the present case, the Commission falling to recommend any suitable candldte within one year did not arise. though the circumstances of a post of a teacher being vacant for more than two months to permit the management to make a direct recruitment on an ad hoc basis, was available. The vacancy was intimated, it is stated in the petition, to the Commission on 9 April, 1992. The appointment, on the basis of a selection made by the Committee of Management on 20 Decembers 1992, was annouuced on 21 December. 1992. This implies that since the vacancy was intimated on 9 April 1992, the process for the selection of a candidate bad not started until December, 1992; a period of eight months intervened. The appointment followed the selection within 24 hours.

The contention of the learned Counsel for the Petitioner is that the amendment which has been incorporated to Section 18, by the U.P. Act No. XXIV of 1992 (referred to as ''the Amendment Act''), would not be applicable to the facts and circumstances of the present case, as the vacancy had occurred prior to the applicability of the Amendment Act. Thus, it is contended, the appointment could be made by the management, without recourse to Section 18 of the Act, as amended.

The Court is unable to agree with this submission.

Should the appointment have been made before the Amendment Act was effective, it would have been a fact accomplished. But, once the Act stood amended, the very first clause to Section 18 stipulates that the management may appoint but as provided under the section. In support of his contentions, learned Counsel for the Petitioner has cited two cases Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, , and Sultan Ahmad v. State of U.P. 1983 AWC 86 (DB). On one aspect, there is a commonness in the cases cited at the Bar. Commonness is to the effect that they relate to conditions of employees already in State or publico service. The cases do not concern those yet to be recruited. in the matter of Y.V. Rangaiah, it was an issue of promotion and drawing up of a select list. The promotton to whom it was due being one of right and could not be denied, thus, any amendment which was incorporated io the service regulations, could not be at the expense of those who were entitle to the promotion and, thus any list which was drawn up, notwithstanding the amendment brought in, was recognised as one which was to be acted upon as valid. in the other case. re; Sultan Ahmad, the law. as it was interpreted, was in reference to the staff of the Colleotorate Ministerial Service and was applicable to all the State employees, as a class. A select list for promotion was not made applicable since it was prepared but was pot in abeyance tc be made applicable on the applicability of Roles published in the State Gazette later. The select list was cancelled. The High Court held that this was not justified, as promotion was a matter of right, after doe selection, it became effective when the vacancy arose.

The present case is different. it is a matter of fresh recruitment of teachers. The recruitment will take effect from the date of appointment and not vacancy.

Further there is a basic difference between the cases cited and the matter under consideration. in the cases relied on, the persons affected were in service and claiming an incident of service; a promotional right, which had become ripe. The Courts held that such a right to promotion when it has matured, cannot be postponed by subordinte legislation or otherwise by Government Orders. in the present case, the matter is essentially one of recruitment. Vacancy alone gives no right to any inoumbent applying for a post as he has yet to be processed for being considered for an appointment. Only a valid appointment, made in accordance with law, natures a right to a post. in reference to time, and in the conetext of such cases, thus, it is not vacancy but appointment is the relevant aspect of the matter.

In the facts and circumstances of the present case, under the law the management can draw up a list of candidates for the process of selection. The only change which has been brought about is that there has to be a selection committer, as prescribed uuder Sub-section (9) of Section 18 of the Act. From this, there is no escape. The vacancy had occurred in January, 1992. The management did not fill the vacancy until the following December, that is for another eight months. in between came the Amendment Act. The sole question is can an appointment, without recourse to the amended provisions of the Act, be made? 4ny appointment, in the face of the Act, as amended, will have to be strictly in accordance with the Act.

The moment U.P. Act No. XXIV of 1992 began to operate, the only change which happened, was that on the existing vacancy tbe Petitioner could be considered but could not esoape the provisions of Sub-section (9) of Section 18 and the selection has to be, as prescribed. If this was not so, then any institution that may have intimated the vacancy, prior to coming into force of the Amending Act, could make an appointment.

Thus, this Court is satisfied that no illegality has been committed. by the District inspector of Schools in not granting an approval to the Petitioner in the facts and circumstances of the present case and permitting the selection only in accordance with Sub-section (9) of Section 18, as amended now.

The petition is, thus, dismissed in limine.