No Acts & Articles mentioned in this case
1
AFR
Reserved
Case :- SPECIAL APPEAL DEFECTIVE No. - 442 of 2016
Appellant :- Smt. Sadhna
Respondent :- State Of U.P. And 5 Ors.
Counsel for Appellant :- Vijay Kumar Singh, Hritudhwaj
Pratap Sahi, Rahul Kumar
Counsel for Respondent :- C.S.C., A.K. Yadav, Anoop Trivedi,
C.B. Yadav, Rajesh Kumar Mishra, Shashank Shekhar Singh
Present:
Hon'ble V.K. Shukla, J.
Hon'ble Arun Tandon, J.
Hon'ble P.K.S. Baghel, J.
Hon'ble Sunita Agarwal, J.
Hon'ble M.C. Tripathi, J.
______
Per : Hon'ble Pradeep Kumar Singh Baghel,J.
I have had the benefit of reading the erudite judgment of
our learned Brother Tandon, J. I am unable to take the view
expressed by him and most respectfully dissent.
A Division Bench of this Court in Special Appeal Defective
No. 442 of 2016, Smt. Sadhna v. State of U.P. and others, has
doubted the correctness of the decision of a Full Bench of this
Court in the case of Raeesul Hasan v. State of U.P. and
others
1
. The terms of reference have been extracted in the
judgment of His Lordship Hon'ble Mr. Justice Arun Tandon, so
they need not to be extracted again.
The Division Bench has doubted the correctness of the
decision of Raeesul Hasan (supra) on, amongst others,
following reasons:
(a)If the choice to decide the year of recruitment within the
promotion quota is left to the discretion of the Committee of
Management, it may result in a situation where there would be
two different years of recruitment for direct recruitment and
1
2015 (6) ADJ 778 (LB)(FB)
2
promotion quota.
(b)If the discretion is conferred upon the Committee of
Management to club the vacancies, there is likelihood that
promotional right of the teachers already working in the
institution in L.T. Grade may be defeated at the whims of the
Management.
(c)The impact of keeping the 'year of recruitment' as used in
Rule 14 of the Uttar Pradesh Secondary Education Services
Selection Board Rules, 1998
2
fluid at the instance of the
Committee of Management has lost the attention of the Full
Bench in Raeesul Hasan (supra) .
(d)Whether the exercise under Rules 10 and 11 of the Rules,
1998 is a ministerial exercise or it confers a discretion upon the
Management to decide as to which vacancy is to be filled by
promotion and as to which vacancy is to be filled by direct
recruitment.
In order to appreciate the rival stand on the issue it
would be expedient to briefly notice the historical background
of the statutory provision.
The Uttar Pradesh Secondary Education Services
Commission and Selection Board Act, 1982
3
(U.P. Act No. 5 of
1982) received the assent of the President on 25
th
February,
1982. The object of the Act was to hold free and fair selection
of the teachers and to raise the standard of education. By the
enactment of this Act, the power of the Committee of
Management for appointment of the Principal and teachers and
their promotion, which was governed under the Uttar Pradesh
Intermediate Education Act, 1921
4
and the Regulations framed
thereunder, was completely taken away from the Management
2
Rules, 1998
3
Act, 1982 or Principal Act
4
Act, 1921
3
and it was vested in the Secondary Education Services
Selection Board
5
. The provisions of the Act, 1982 were
drastically amended from time to time. The details of those
amendments are not relevant for the issue involved in the
present case, hence they need not any elaboration. For the
determination of the case, it will be necessary to set out the
relevant statutory provisions.
Section 9 of the Act, 1982 enumerates the powers and
duties of the Commission. Clause (a) thereof provides that it
shall prepare guidelines on matters related to the method and
promotion of teachers. Section 10 provides the procedure of
selection by direct recruitment. It casts an obligation on the
Management to notify the vacancies to the Commission. It
enjoins that the Management shall determine the number of
vacancies existing or likely to fall vacant during the year of
recruitment and notify the vacancies to the Board in such
manner as may be prescribed. The procedure for selection by
direct recruitment was also left to the rule-making authority.
Section 11 of the Act, 1982 deals with panel of candidates.
Chapter III of the Act, 1982 lays down the procedure of
selection by promotion. Chapter III was inserted by U.P. Act
No. 25 of 1998 (w.e.f. 20
th
April, 1998). Section 34 gives power
to the Board to make or amend regulations with the previous
approval of the State Government. Section 35 of the Act, 1982
empowers the State Government to make rules for carrying
out the purposes of the Act.
Exercising the powers conferred by Rule 35 of the Act,
1982, the State Government made the Uttar Pradesh
Secondary Education Services Commission Rules, 1983
6
. Rule
2(i) of the Rules, 1983 defines the 'year of recruitment' to
mean a period of twelve months commencing from July 1 of a
5
Board
6
Rules, 1983
4
calender year. Rule 4 casts an obligation on the Management to
determine and intimate the Commission, in the proforma given
in Appendix 'A', the number of vacancies existing or likely to
fall vacant during the year of recruitment. It also enjoins the
Management to pay regard to the provisions of the Uttar
Pradesh Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1994
7
.
Sub-rule (2) of Rule 4 of the Rules, 1983 provides that the
statement of vacancies shall be sent by the Management to the
Inspector by 15
th
September of the year of recruitment and the
Inspector after verification shall forward it to the Deputy
Director by 15
th
October. Sub-rule (3) provides that the Deputy
Director shall forward it to the Commission by November 15.
Sub-rule (5) of Rule 4 provides that if a vacancy occurs any
time during the session or after the requisition, the
Management is required to notify the vacancy to the Inspector
within fifteen days of its occurrence. Sub-rule (6) puts a check
on the Management as it provides that if the Management has
failed to notify the vacancy by the date specified in the earlier
part of the rule, the Commission would require the Inspector to
notify the vacancy to the Commission.
As the present dispute is in respect of the promotion, the
other parts of the Rules, 1983 which deal with the procedure
for direct recruitment, preparation of panel and notification of
the selected candidates are not relevant for our purposes.
Rule 9 of the Rules, 1983 provides the procedure for
appointment by promotion. Rule-9 is set out at below:
"9. Procedure for appointment by promotion .—
(1) Where any vacancy is to be filled by promotion, all
teachers working in L.T. or C.T. grade, who possess the
minimum qualifications and have put in at least 5 years
continuous service as teacher on the date of occurrence
of vacancy shall be considered for promotion to the
Lecturer or L.T. grade, as the case may be, without
7
Act, 1994
5
their having applied for the same.
Note.—For the purpose of this sub-rule, service
rendered in any other recognised institution shall count
for eligibility, unless interrupted by removal, dismissal
or reduction to a lower post.
(2) The criterion for promotion shall be seniority
subject to the rejection of unfit.
(3) The Management shall prepare a list of
teachers, referred to in sub-rule (1), and forward it to
the Commission through the Inspector with a copy of
seniority list, service records (including the character
rolls) and a statement in the pro forma given in
Appendix 'A'.
(4) Within three weeks of the receipt of the list
from the Management under sub-rule (3), the
Inspector shall verify the facts and forward the list to
the Commission.
(5)The Commission shall, after calling for such
additional information as it may consider necessary,
intimate the name of selected candidate or candidates
to the Inspector with a copy to the Manager of the
Institution.
(6) Within 10 days of the receipt of the intimation
from the Commission under sub-rule (5), the Inspector
shall send the name of the selected candidate(s) to the
Manager of the concerned institution and the provisions
of sub-rules (3) and (4) of Rule 8 shall mutatis
mutandis apply."
As can be seen from bare reading of the rule, one of the
eligibilities for promotion is that a teacher must possess five
years continuous service on the date of occurrence of vacancy
and the Management is required to prepare a list of the
teachers and forward it to the Commission through the
Inspector with a copy of the seniority list, service record, etc.
and the statement in the proforma given in Appendix 'A'. Sub-
rule (4) of Rule 9 further enjoins the Inspector to verify the
facts sent by the Management and forward the list to the
Commission. It is relevant to note that under Rules 4 and 9 of
the Rules, 1983, Appendix 'A' has been provided. It has
material bearing for determination of the case, hence it would
6
be advantageous to reproduce entire Appendix 'A', which reads
thus:
“APPENDIX A
(See Rules 4 and 9)
Requisition for the Recruitment of Candidates for
appointment to the post of Teacher/Head of
Institutions
(To be sent in quadruplicate)
1. (i) Name of Institution.
(ii) Place—
(iii) District—
(iv) No. of Students : Class Section No.
(v)Names of Subjects: High School/ Inter
(vi)No. of Teachers.
(2) (i) Name(s) of the post(s) for which selection is to
be made—
(ii) Number of posts—
(iii) Qualification for the post(s)
(iv)Pay scale of the post—
3. Where the post for which selection is to be made, is
of Lecturer or L.T. Grade—
(i) Total number of sanctioned posts—
(ii) Number of posts already filled by—
(a) direct recruitment
(b) promotion
(iii) Total number of vacancies determined by the
Management to be filled by—
(a) direct recruitment
(b) promotion
3-A. Where the post for which selection is to be made
is of Principal, names of two senior most teachers
possessing requisite qualifications for the post of
Principal, in order of seniority and their—
(a) educational qualifications,
(b) teaching experience,
(c) administrative experience, if any.
Note.—Copies of the service records (including
7
character rolls) shall be sent with the requisition.
4. Number of posts, if any, reserved for—
(a) Scheduled Caste
(b) Scheduled Tribe
(c) Backward Class
5. *Names of all candidates eligible for promotion,
their qualification and length of service from the date
of regular appointment in the grade from which
promotion is to be made
*To be filled in only where the post is to be filled
by promotion.
6. Any other information that the Commission may
desire to have—
Certified that the above information is correctly
recorded and verified from the relevant documents.
Manager
Verified and forwarded to the Regional Deputy
Director of Education............. Region.
District Inspector of Schools/
Regional Inspectress of Girls Schools.
Forwarded to the Secretary, U.P. Secondary
Education Services Commission, Allahabad.
Deputy Director of Education
…..............Region.”
An examination of the Appendix 'A' would show that in
fact, it is a comprehensive information regarding all the details
of the institution as the number of the sanctioned posts,
number of vacancies determined by the Management to be
filled by direct recruitment and promotion, educational
qualification of teachers, teaching experience, number of
students, names of subjects of High School/Inter, number of
posts, if any, reserved for reserved candidates. In short, all the
details are made available to the office of the Inspector, who
maintains his own record. The Inspector can very easily verify
the facts from his own record. Appendix 'A' has an important
role as it would be clear from the subsequent Rules of 1995
8
and 1998 that there was no change in the format of Appendix
'A' as well as the requirements of sending the information
under it.
In 1993 an amendment was made in the Principal Act by
the U.P. Act No. 1 of 1993. By this amendment, under Section
2 of the Principal Act i.e. Act, 1982 a “sub-section (l)—year of
recruitment” has been inserted. It provides that 'year of
recruitment' means a period of twelve months commencing
from first day of July of a calendar year. By the same
amendment, in sub-section (3) of Section 14 of the Principal
Act, after clause (e), Clauses (f), (g) and (h) were inserted.
Clause (h) needs to be mentioned here which is in the
following terms:
“(h) to obtain the periodical returns or other
informations from institutions regarding strength of the
teaching staff and the appointment, promotion,
dismissal, removal, termination or reduction in rank of
teachers.”
By the same amendment of 1993, Section 15 of the Act,
1982 was substituted by a new Section 15, which lays down
the procedure for selection of teachers. It casts an obligation
on the Management to timely notify the vacancies.
On 08
th
August, 1995 the Uttar Pradesh Secondary
Education Services Selection Boards (Amendment) Act, 1995
(U.P. Act No. 15 of 1995) was made which came into force on
28
th
December, 1994. By this amendment, Chapter II
containing Sections 3 to 11 was inserted in the Act, 1982.
Section 10 of the Act, 1995 provides the procedure of
selection. A duty has been cast upon the Management to
determine the number of vacancies existing or likely to fall
vacant during the year of recruitment. By the same
amendment, Section 15 of the Act, 1982 was deleted.
9
On 08
th
May, 1995 the Uttar Pradesh Secondary Education
Services Commission Rules, 1995
8
was framed by the State
Government in exercise of its powers conferred by Section 35
of the Act, 1982. The salient features of the changes made
are: (i) the 'year of recruitment' defined under sub-rule (i) of
Rule 2 of the Rules, 1983 was deleted; as noted above by a
separate amendment it was incorporated in the Act, 1982 by
the U.P. Act No. 1 of 1993 by inserting Section 2(l), year of
recruitment; (ii) a new Chapter being Part III was inserted
which provides the procedure for recruitment. Rule 10 of the
Rules, 1995 stipulates the source of recruitment and lays down
that the posts of teachers of lecturers grade shall be filled (i)
50 per cent by direct recruitment, and (ii) 50 per cent by
promotion from amongst the substantively appointed teachers
of the trained graduates (L.T.) grade. A proviso is also
appended to the said rule which has a material bearing in the
present case. For convenience, Rule 10 of the Rules, 1995 is
reproduced below:
"10. Source of recruitment.— Recruitment to
various categories of teachers shall be made from the
following sources:
(a) Principal of an Intermediate College or
Headmaster of a High School by direct
recruitment.
(b) Teachers of lecturers grade.—(i) 50 per cent by
direct recruitment;
(ii) 50 per cent by promotion from amongst
substantively appointed teachers of the trained
graduates (L.T.) grade;
(c)Teachers of trained graduates (L.T.) grade.—(i)
50 per cent by direct recruitment;
(ii) 50 per cent by promotion from amongst the
substantively appointed teachers of Certificate
of Teaching (C.T.) Grade:
Provided that if in any year of recruitment
suitable eligible candidates are not available for
8
Rules, 1995
10
recruitment by promotion, the posts may be filled in by
direct recruitment:
Provided further that if in calculating respective
percentages of posts under this rule there comes a
fraction then the fraction of the posts to be filled by
direct recruitment shall be ignored and the fraction of
the posts to be filled by promotion shall be increased to
make it one post."
Rule 11 of the Rules, 1995, which deals with
determination and notification of vacancies, is also relevant for
the present dispute, hence it needs to be extracted for the
convenience. It reads as follows:
“11. Determination and notification of
vacancies.—(1) The Management shall determine the
number of vacancies in accordance with sub-section (1)
of Section 15 of the Act and notify them through the
Inspector, to the Commission in the manner hereinafter
provided.
(2) The statement of vacancies for each category
of post to be filled in by direct recruitment or by
promotion, including the vacancies that are likely to
arise due to retirement on the last day of the year of
recruitment, shall be sent separately in quadruplicate
in the pro forma given in Appendix "A" by the
Management to the Inspector by July, 15 of the year of
recruitment and the Inspector shall, after verification
from the record of his office, prepare consolidated
statement of vacancies of the district subjectwise in
respect of the vacancies of lecturers grade, and
groupwise in respect of vacancies of trained graduates
(L.T.) grade. The consolidated statement so prepared
shall, along with the copies of statement received from
the Management, be sent by the Inspector to the
Commission by July, 31 with a copy thereof to the
Deputy Director :
Provided that if the State Government is satisfied
that it is expedient so to do, it may, by order in writing,
fix other dates for notification of vacancies to the
Commission in respect of any particular year of
recruitment :
Provided further that in respect of the vacancies
existing on the date of commencement of these rules
as well as the vacancies that are likely to arise on July
30, 1995 the Management shall, unless some other
dates are fixed under the preceding proviso, send the
11
statement of vacancies by June 15, 1995 to the
Inspector and the Inspector shall send the consolidated
statement in accordance with the sub-rule to the
Commission by June 30, 1995.
Explanation.—For the purposes of this sub-rule
the word groupwise in respect of the trained graduates
(L.T.) grade means in accordance with the following
groups, namely :
(a)Language Group.—This group consists of the
subjects of Hindi, Sanskrit, Urdu, Persian and
Arabic;
(b)Science Group.—This group consists of the
subjects of Science and Mathematics;
(c)Art and Craft group;
(d)Music Group;
(e)Agriculture Group;
(f)Home Science Group;
(g)Physical Education Group; and
(h)General Group.—This group consists of the
subjects not covered in any of the foregoing
groups.
(3)If, after the vacancies have been notified
under sub-rule (2), any vacancy in the post of a
teacher occurs, the Management shall, within fifteen
days of its occurrence, notify the Inspector in
accordance with the said sub-rule and the Inspector
shall within ten days of its receipt by him send it to the
Commission.
(4) Where, for any year of recruitment, the
Management does not notify the vacancies by the date
specified in sub-rule (2) or fails to notify them in
accordance with the said sub-rule, the Inspector shall
on the basis of the record of his office, determine the
vacancies in such institution in accordance with sub-
section (1) of Section 15 of the Act and notify them to
the Commission in the manner and by the date
referred to in the said sub-rule. The vacancies notified
to the Commission under this sub-rule shall be deemed
to be notified by the Management of such institution.”
On a plain reading it becomes clear that the Commission
was authorised to make the direct recruitment as well as
12
promotion and the Management was required to send the
details of the vacancies, on the proforma given in Appendix 'A',
by July 15 of the year of recruitment. It further requires the
Inspector to forward the details after verification from the
record of his office and prepare consolidated statement of
vacancies of the district subjectwise in respect of the vacancies
of trained graduates (L.T.) grade within a time-frame. Sub-rule
(4) of Rule 11 of the Rules, 1995 provides that if the
Management does not notify the vacancies within the time
frame or fails to notify them, the Inspector is empowered to
determine the vacancies on the basis of the record of his office
and notify them to the Commission, and such vacancies sent to
the Commission shall be deemed to be notified by the
Management.
Rule 14 of the Rules, 1995 deals with the procedure for
recruitment by promotion. It states that where any vacancy is
to be filled by promotion, all the eligible teachers shall be
considered for promotion irrespective of the fact whether they
have applied or not. The eligibility was the qualification
prescribed for the post and the teacher must have completed
five years continuous service as such on the first day of the
year of recruitment. The Management, under sub-rule (3) of
Rule 14, is under obligation to send a copy of the seniority list,
service records and other information with the list of teachers
on the proforma given in Appendix 'A', and the Inspector after
verifying the fact shall forward it to the Commission under sub-
rule (4) thereof. Rule 14 of the Rules, 1995 is as under:
"14. Procedure for recruitment by
promotion.—(1) Where any vacancy is to be filled by
promotion all teachers working in trained graduates
(L.T.) grade or Certificate of Teaching (C.T.) grade, if
any, who possess the qualifications prescribed for the
post and have completed five years continuous service
as such on the first day of the year of recruitment shall
be considered for promotion to the lecturers grade or
the trained graduates (L.T.) grade, as the case may be,
13
without their having applied for the same.
Note.— For the purposes of this sub-rule, regular
service rendered in any other recognised institution shall be
counted for eligibility, unless interrupted by removal,
dismissal or reduction to a lower post.
(2). The criterion for promotion shall be seniority
subject to the rejection of unfit.
(3) The Management shall prepare a list of
teachers referred to in sub-rule (3), and forward it to
the Commission through the Inspector with a copy of
seniority list, service records, including the character
rolls, and a statement in the pro forma given in
Appendix "A".
(4) Within three weeks of the receipt of the list
from the management under sub-rule (3), the
Inspector shall verify the facts from the record of his
office and forward the list to the Commission.
(5) The Commission shall consider the cases of
the candidates on the basis of the records referred to in
sub-rule (3) and may call such additional information
as it may consider necessary. The Commission shall
forward the panel of selected candidates within one
month to the Inspector with a copy thereof to the
Deputy Director.
(6) Within ten days of the receipt of the panel
from the Commission under sub-rule (5), the Inspector
shall send the name of the selected candidate to the
management of the institution which has notified the
vacancy and the management shall accordingly on
authorization under its resolution issue the
appointment order in the proforma given in Appendix
'E' to such candidate."
As can be seen that for the first time a proviso was
inserted in Rule 10 of the Rules, 1995 stipulating that if in any
year of recruitment suitable eligible candidates are not
available for recruitment by promotion, the posts may be filled
by direct recruitment. This proviso was not there in the Rules,
1983.
By the Uttar Pradesh Secondary Education Services
Commission (Amendment) Act, 1998 [U.P. Act No. 25 of 1998]
(w.e.f. 20
th
April, 1998) Chapter III dealing with the procedure
14
of selection by promotion has been inserted in the Act, 1982.
Under the newly inserted Section 12, which deals with the
procedure of selection by promotion, in each region a statutory
Selection Committee has been constituted under the
Chairmanship of the Regional Joint Director of Education. It
also comprises of senior most Principal of Government Inter
College in the region as Member and the concerned District
Inspector of Schools as Member-Secretary. For the first time,
the power of the Commission for promotion was taken away by
the amending Act, 1998 and it was entrusted to the Regional
Level Committee.
The State Government vide notification dated 13
th
July,
1998 framed a new set of rules being the Rules, 1998, namely,
the Uttar Pradesh Secondary Education Services Selection
Board Rules, 1998 in exercise of its powers conferred by
Section 35 of the Act, 1982. In the Rules, 1998, Rule 10 of the
Rules, 1995 was retained with minor changes but both the
provisos to Rule 10 were retained without any change. In the
Rules, 1998 the rule-making authority has made a conscious
departure from the earlier Rules of 1983 and 1995 in respect of
the procedure for promotion. Sub-rule (4) of Rule 11 again
puts a check on the Committee of Management that if it fails to
notify the vacancies by the date specified in sub-rule (2), the
Inspector shall send it to the Board and it shall be deemed to
be notified by the Management. In the Rules, 1998, Rule 14 of
the Rules, 1995 was retained with a significant change of
inserting the word “regular” between the words “continuous
service”. Thus, fresh requirement is that a teacher who has
completed five years continuous regular service on the first day
of the year of recruitment shall be considered for promotion to
the Lecturer's grade. It is apt to reproduce Rule 14 of the
Rules, 1998, which reads as under:
15
"14. Procedure for recruitment by promotion.—
(1) Where any vacancy is to be filled by promotion all
teachers working in trained graduates grade or
Certificate of Teaching grade, if any, who possess the
qualifications prescribed for the post and have
completed five years continuous regular service as such
on the first day of the year of recruitment shall be
considered for promotion to the lecturers grade or the
trained graduates grade, as the case may be, without
their having applied for the same.
Note.—For the purposes of this sub-rule, regular
service rendered in any other recognized institution shall be
counted for eligibility unless interrupted by removal,
dismissal, or reduction to a lower post.
(2) The criterion for promotion shall be seniority
subject to the rejection of unfit.
(3) The Management shall prepare a list of
teachers referred to in sub-rule (1), and forward it to
the Inspector with a copy of seniority list, service
records, including the character rolls, and a statement
in the pro forma given in Appendix 'A'.
(4) Within three weeks of the receipt of the list
from the Management under sub-rule (3), the Inspector
shall verify the facts from the record of his office and
forward the list to the Joint Director.
(5) The Joint Director shall consider the cases of
the candidates on the basis of the records referred to in
sub-rule (3) and may call such additional information as
it may consider necessary. The Joint Director shall place
the records before the Selection Committee referred to
in sub-section (1) of Section 12 and after the
committee's recommendation, shall forward the panel
of selected candidates within one month to the
Inspector with a copy thereof to the Management.
(6) Within ten days of the receipt of the panel
from the Joint Director under sub-rule (5), the
Inspector shall send the name of the selected
candidates to the Management of the institution which
has notified the vacancy and the Management shall
accordingly on authorization under its resolution issue
the appointment order in the proforma given in
Appendix 'F' to the such candidate."
The Division Bench in Sadhna case (supra) has
expressed its apprehension that if the choice to decide the year
of recruitment within the promotion quota is left at the
16
discretion of the Committee of Management, which has to be
done in every recruitment year in terms of the proviso to Rule
10 of the Rules, 1998, the Management can misuse it. It has
further raised the issue that the Management cannot club the
vacancies for the recruitment years and there is likelihood of
promotional right of the teachers already working in the
institution 'defeated at the whims of the Management'.
The issue whether the vacancies can be clubbed or not,
fell for consideration before the Supreme Court in the case of
Balbir Kaur and another v. Uttar Pradesh Secondary
Education Services Selection Board, Allahabad and
others
9
. In the said case, the Supreme Court had the occasion
to consider the construction of Sections 2(l), which defines the
year of recruitment, 10 and 11 of the Act, 1982 and Rule 11(2)
(a) of the Rules, 1998. In paragraphs-38, 39 and 40 of the
judgment the Supreme Court dwelt upon the ambit and scope
of Rules 10 and 11 of the Rules, 1998 and the year of
recruitment as defined under Section 2(l) of the Act, 1982.
Their Lordships in paragraphs- 38, 39 and 40 of the judgment
ruled thus:
“38.It was then contended by learned counsel
for the respondents that under Section 10 of the
Principal Act, vacancies are to be notified in respect of
each year of recruitment and if the vacancies are
clubbed together, the basic purpose of notifying the
vacancies every year in terms of the said section will
get frustrated, which cannot be permitted in law.
According to the learned counsel, since the vacancies
have to be notified each year it would naturally mean
that they are also to be filled up each year from
amongst the eligible candidates available in respect of
that recruitment year. Therefore, the person who
became eligible subsequently could not be considered
in respect of the vacancies occurring in respect of the
earlier recruitment year. The stand of the learned
counsel is that in the present recruitment, the Board
wrongly clubbed all such vacancies by taking recourse
to the second proviso to Rule 11(2)(a) of the 1998
Rules. Learned counsel asserts that in the light of clear
9
(2008) 12 SCC 1 : 2008 (3) ESC 409 (SC)
17
provision of Section 10 of the Principal Act, the said
rule cannot be resorted to.
39.We do not find much substance in the
contention. Section 2(l) of the Principal Act, as
amended by the U.P. Secondary Service Commission
and Selection Board (Amendment) Act, 1992 defines
"year of recruitment" to 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 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 existing
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) thereof.
40.It is clear that though it may be desirable
for better 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 "existing 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 30-6-1998, shall be included
in the consolidated statement by 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) is in conflict with the provisions
of Section 10(1) of the Principal Act, as is sought to be
pleaded on behalf of the respondents. We have,
therefore, no hesitation in endorsing 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 of selection.”
A careful reading of the above paragraphs clearly
indicates that similar argument was raised before the Supreme
Court that under Section 10 of the Principal Act the vacancies
18
are to be notified in each year of recruitment. It was argued
that in terms of Rule 10 the vacancies have to be notified each
year. Thus, the vacancies cannot be clubbed together. The said
contention was rejected by the Supreme Court considering the
scope of the year of recruitment, and Section 10 of the
Principal Act and Rule 11 of the Rules, 1998, and held that all
the vacancies which are existing or which are likely to fall
vacant during the year of recruitment can be clubbed
irrespective of the occurrence of year of vacancy. From the
view expressed by the Supreme Court, it is manifestly clear
that the Supreme Court has considered the scope of the
aforesaid provisions, which are under consideration before this
Court also. Hence, the law laid down by the Supreme Court has
a binding precedent under Article 141 of the Constitution of
India. This Court cannot wriggle out from the law laid down by
the Supreme Court in the aforesaid three paragraphs by
resorting to any interpretation.
The Supreme Court in the case of Dashrath Rupsingh
Rathod v. State of Maharashtra and another
10
has held
that if the Supreme Court interprets any statutory provision
then it is binding under Article 141 of the Constitution of India
in all the factual and legal situations. The Supreme Court
observed as under:
“10. It is axiomatic that when a court interprets
any statutory provision, its opinion must apply to and
be determinate in all factual and legal permutations
and situations....”
In Union of India and others v. Dhanwanti Devi and
others
11
, the Supreme Court has laid down the law about the
ratio of the judgment. The relevant part of the judgment is
extracted herein-below:
10
(2014) 9 SCC 129
11
(1996) 6 SCC 44
19
“9. Before adverting to and considering whether
solatium and interest would be payable under the Act,
at the outset, we will dispose of the objection raised by
Shri Vaidyanathan that Hari Kishan Khosla case
12
is not
a binding precedent nor does it operate as ratio
decidendi to be followed as a precedent and is per se
per incuriam. It is not everything said by a Judge while
giving judgment that constitutes a precedent. The only
thing in a Judge's decision binding a party is the
principle upon which the case is decided and for this
reason it is important to analyse a decision and isolate
from it the ratio decidendi. According to the well-
settled theory of precedents, every decision contains
three basic postulates—(i) findings of material facts,
direct and inferential. An inferential finding of facts is
the inference which the Judge draws from the direct, or
perceptible facts; (ii) statements of the principles of
law applicable to the legal problems disclosed by the
facts; and (iii) judgment based on the combined effect
of the above. A decision is only an authority for what it
actually decides. What is of the essence in a decision is
its ratio and not every observation found therein nor
what logically follows from the various observations
made in the judgment. Every judgment must be read
as applicable to the particular facts proved, or assumed
to be proved, since the generality of the expressions
which may be found there is not intended to be
exposition of the whole law, but governed and qualified
by the particular facts of the case in which such
expressions are to be found. It would, therefore, be not
profitable to extract a sentence here and there from
the judgment and to build upon it because the essence
of the decision is its ratio and not every observation
found therein. The enunciation of the reason or
principle on which a question before a court has been
decided is alone binding as a precedent. The concrete
decision alone is between the parties to it, but it is the
abstract ratio decidendi, ascertained on a consideration
of the judgment in relation to the subject-matter of the
decision, which alone has the force of law and which,
when it is clear what it was, is binding. It is only the
principle laid down in the judgment that is binding law
under Article 141 of the Constitution. A deliberate
judicial decision arrived at after hearing an argument
on a question which arises in the case or is put in issue
may constitute a precedent, no matter for what reason,
and the precedent by long recognition may mature into
rule of stare decisis. It is the rule deductible from the
application of law to the facts and circumstances of the
case which constitutes its ratio decidendi.
10. Therefore, in order to understand and
appreciate the binding force of a decision it is always
12
1993 Supp (2) SCC 149
20
necessary to see what were the facts in the case in
which the decision was given and what was the point
which had to be decided. No judgment can be read as if
it is a statute. A word or a clause or a sentence in the
judgment cannot be regarded as a full exposition of
law. Law cannot afford to be static and therefore,
Judges are to employ an intelligent technique in the
use of precedents....”
It is trite that even the obiter of the Supreme Court is
binding on the High Courts. Even for the subsequent Benches
of the Supreme Court, the obiter of the earlier Bench has a
persuasive value. Reference may be made to the judgment of
the Supreme Court in Oriental Insurance Company Ltd. v.
Meena Variyal
13
, wherein the Supreme Court held thus:
“An obiter dictum of this Court may be binding
only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this
Court. But as far as this Court is concerned, though not
binding, it does have clear persuasive authority.”
One of the questions arose before the Supreme Court in
Balbir Kaur (supra) was also in respect of the scope of same
provisions. The Supreme Court has expressed its view that it
may be desirable for better administration but neither Section
10 nor Section 11 of the Principal Act i.e. Act, 1982 nor the
Rules, 1998 lay down that it is mandatory that selection or
determination of the vacancies must be yearwise and they
cannot be clubbed. In view of the clear law laid down by the
Supreme Court, no other interpretation by this Court is
possible. The judicial discipline demands that the law laid down
by the Supreme Court in respect of the same provision must
be followed. I am in respectful agreement with the view
expressed by the Full Bench of this Court in Raeesul Hasan
(supra) that followed the law laid down by the Supreme Court
in Balbir Kaur (supra).
Another issue which deserves consideration is whether, if
the judgment of Raeesul Hasan (supra) is accepted as
13
(2007) 5 SCC 428
21
correct, there would be two different year of recruitment one
for direct recruitment and another for promotion. In that event
the Management can play mischief by keeping promotion quota
vacant for a long time and there can be cases where the
Management deliberately modifies a requirement in the name
of extending benefit to some candidate/teachers, who may be
desirous of seeking promotion, otherwise not eligible within the
year of recruitment. The Management can withhold such
information.
A close look at the scheme of the Act, 1982 and the Rules
would show that the said submission is based on assumption.
The provisions of the Act and the Rules provide enough check
and balance as discussed in the later part of this judgment.
The amendments mentioned above clearly indicate the
intention of the legislature/ rule-making authority as the words
“on the date of occurrence of the vacancy” of the Rules, 1983
were deleted in the Rules, 1995. It is also important to bear in
mind that the definition of the 'year of recruitment' was deleted
in the Rules, 1995 and it was incorporated in Section 2(l) of
the Act, 1982. Lastly, the power of promotion was taken away
from the Board and it was entrusted to a Selection Committee
constituted under Section 12 of the Act, 1982 by inserting said
section in Chapter III of the said Act by the amending Act of
1998. These changes clearly articulate the intention of the
legislature/rule-making authority, which cannot be ignored
simply because the Management can keep a vacancy for an
indifferent period to show favour to its favourite candidate.
In fact, the above mentioned legislative changes in the
Act, 1982 as well as in the Rules made thereunder clearly
indicate that it was a conscious and glaring departure from the
Rules, 1983 and the Rules, 1995. These changes made by the
legislature must be given its due significance. These
22
amendments cannot be nullified by adopting a construction
which is not permissible in the law if the language of the
statute is plain and simple.
While amending these rules, the legislature/ rule-making
authority has applied its mind. If its intention in carrying out
the amendments had been misunderstood by this Court or
found ambiguous or it was leading to absurdity or against the
intention of the legislature/ rule-making authority, it was
expected that the legislature would step in and rectify the
situation by making appropriate amendment in the Act or the
Rules. This amendment is in operation for more than 19 years.
It is trite that the real purpose in construing a statute is
to ascertain the intention of the legislature. The legislature
speaks its mind by use of correct expression which has to be
given effect to. If there is ambiguity in the language of the
provision, only then the Court can interpret the provision. If
the language is clear and unambiguous, there is no need to
look somewhere else to discover the intention or meaning. If
the literal construction leads to absurdity, only in that case
external aids to construction can be resorted to.
It is a well-settled that if an enactment is capable of one
meaning only, the Court will prefer its literal meaning
irrespective of the consequences. The Court cannot read any
word to statute or read into it, which are not there, and it is
not the duty of the Court to assume that there is defect or
omission in the words used by the legislature or correct it or
make up assumed deficiency.
A survey of law on this subject would be necessary. Some
of the judgments of the Supreme Court need to be referred to
illuminate the above principle.
A recent decision in Smita Subhash Sawant v.
23
Jagdeeshwari Jagdish Amin and others
14
is in point in this
connection. The Court held thus:
“31. It is a settled principle of rule of
interpretation that the court cannot read any words
which are not mentioned in the section nor can
substitute any words in place of those mentioned in the
section and at the same time cannot ignore the words
mentioned in the section. Equally well settled rule of
interpretation is that if the language of a statute is
plain, simple, clear and unambiguous then the words of
a statute have to be interpreted by giving them their
natural meaning. ( See Principles of Statutory
Interpretation by G.P. Singh, 9
th
Edn., pp. 44-45.)...”
In Rohitash Kumar and others v. Om Prakash
Sharma and others
15
the Supreme Court has held that if
there is some defect in the phraseology used in the statute, it
is not open to the Court to add or amend or by construction
make up for the deficiencies. It is not permissible for the Court
to twist the clear language of the enactment in order to avoid
any real or imaginary situation. In the garb of interpreting the
provision, the Court does not have the power to add or
subtract even a single word. The relevant parts of the
judgment, being paragraphs-27, 28 and 29 as are material, are
extracted below:
“27. The court has to keep in mind the fact that,
while interpreting the provisions of a statute, it can
neither add, nor subtract even a single word. The legal
maxim “A verbis legis non est recedendum ” means,
“from the words of law, there must be no departure”. A
section is to be interpreted by reading all of its parts
together, and it is not permissible to omit any part
thereof. The court cannot proceed with the assumption
that the legislature, while enacting the statute has
committed a mistake; it must proceed on the footing
that the legislature intended what it has said; even if
there is some defect in the phraseology used by it in
framing the statute, and it is not open to the court to
add and amend, or by construction, make up for the
deficiencies, which have been left in the Act. The Court
can only iron out the creases but while doing so, it
14
(2015) 12 SCC 169
15
(2013) 11 SCC 451
24
must not alter the fabric, of which an Act is woven. The
Court, while interpreting statutory provisions, cannot
add words to a statute, or read words into it which are
not part of it, especially when a literal reading of the
same produces an intelligible result.....
28. The statute is not to be construed in light of
certain notions that the legislature might have had in
mind, or what the legislature is expected to have said,
or what the legislature might have done, or what the
duty of the legislature to have said or done was. The
courts have to administer the law as they find it, and it
is not permissible for the court to twist the clear
language of the enactment in order to avoid any real or
imaginary hardship which such literal interpretation
may cause.
29. In view of the above, it becomes crystal clear
that under the garb of interpreting the provision, the
court does not have the power to add or subtract even
a single word, as it would not amount to interpretation,
but legislation.”
(emphasis supplied)
In Orissa Public Service Commission and another v.
Rupashree Chowdhary and another
16
the Supreme Court
has held that if the words of the statute are clear and
unambiguous, then the Courts are bound to give effect to that
meaning regardless of consequences. Paragraph-13 of the
judgment reads thus:
“13. When the words of a statute are clear, plain
or unambiguous i.e. they are reasonably susceptible to
only one meaning, the courts are bound to give effect
to that meaning irrespective of consequences, for the
Act speaks for itself. There is no ambiguity in the
language of Rule 24 leading to two conclusions and
allowing an interpretation in favour of the respondent
which would be different to what was intended by the
statute. Therefore, no rounding off of the aggregate
marks is permitted in view of the clear and
unambiguous language of Rule 24 of the Rules under
consideration.”
(emphasis supplied)
The Supreme Court in State through Central Bureau
of Investigation v. Parmeshwaran Subramani and
16
(2011) 8 SCC 108
25
another
17
has held that if a provision has been omitted by the
legislature, the Court cannot read something into the
provisions. It is not the duty of the Court to enlarge the scope
of legislation as it will amount to rewrite the legislation and the
Court cannot add words on the assumption that there is defect
or omission in the words used by the legislature, correct or
make up assumed deficiency. The relevant part of the
judgment reads thus:
“18. It is settled law that where there is no
ambiguity and the intention of the legislature is clearly
conveyed, there is no scope for the court to undertake
any exercise to read something into the provisions
which the legislature in its wisdom consciously omitted.
Such an exercise if undertaken by the courts may
amount to amending or altering the statutory
provisions.
19. In a plethora of cases, it has been stated that
where the language is clear, the intention of the
legislature is to be gathered from the language used. It
is not the duty of the court either to enlarge the scope
of legislation or the intention of the legislature, when
the language of the provision is plain. The court cannot
rewrite the legislation for the reason that it had no
power to legislate. The court cannot add words to a
statute or read words into it which are not there. The
court cannot, on an assumption that there is a defect
or an omission in the words used by the legislature,
correct or make up assumed deficiency, when the
words are clear and unambiguous. Courts have to
decide what the law is and not what it should be. ...”
(emphasis supplied)
In Nelson Motis v. Union of India and another
18
the
Court held that the Court is not concerned with the
consequences if it gives effect to the plain meaning of the
statute which indicates the intention of the legislature. The
Court held thus:
“8. The language of sub-rule (4) of Rule 10 is
absolutely clear and does not permit any artificial rule
17
(2009) 9 SCC 729
18
(1992) 4 SCC 711
26
of interpretation to be applied. It is well established
that if the words of a statute are clear and free from
any vagueness and are, therefore, reasonably
susceptible to only one meaning, it must be construed
by giving effect to that meaning, irrespective of
consequences. The language of the sub-rule here is
precise and unambiguous and, therefore, has to be
understood in the natural and ordinary sense. As was
observed in innumerable cases in India and in England,
the expression used in the statute alone declares the
intent of the legislature. In the words used by this
Court in State of U.P. v. Dr. Vijay Anand Maharaj
19
,
when the language is plain and unambiguous and
admits of only one meaning, no question of
construction of a statute arises, for the act speaks for
itself. Reference was also made in the reported
judgment to Maxwell stating:
“The construction must not, of course,
be strained to include cases plainly omitted
from the natural meaning of the words.”
In Union of India v. Sankalchand Himatlal Sheth and
another
20
the Supreme Court observed as under:
“11. The normal rule of interpretation is that the
words used by the legislature are generally a safe guide
to its intention. Lord Reid in Westminster Bank Ltd. v.
Zang
21
observed that “no principle of interpretation of
statutes is more firmly settled than the rule that the
Court must deduce the intention of Parliament from the
words used in the Act”. Applying such a rule, this Court
observed in S. Narayanaswami v. G. Panneerselyam
22
that “where the statute's meaning is clear and explicit,
words cannot be interpolated”. .… But, if the provision
is clear and explicit, it cannot be reduced to a nullity by
reading into it a meaning which it does not carry...”
In Nyadar Singh v. Union of India and others
23
the
Supreme Court held as under:
“23. It is true that where statutory language
should be given its most obvious meaning — 'to accord
with how a man in the street might answer the
problems posed by the words' — the statute must be
19
(1963) 1 SCR 1 : AIR 1963 SC 946 : 45 ITR 414
20
(1977) 4 SCC 193
21
1966 AC 182
22
AIR 1972 SC 2284, 2290: (1972) 3 SCC 717, 726 (Para 19).
23
(1988) 4 SCC 170
27
taken as one finds it. Considerations relevant to
interpretation are not whether a differently conceived
or worded statute would have yielded results more
consonant with fairness and reasonableness.
Consequences do not alter the statutory language, but
may only help to fix its meaning.”
In the case of The State of Rajasthan v. Mrs. Leela
Jain and others
24
a decision taken under the Municipal Law
was final. However, from a proviso under the Act the State
Government had interfered in the municipal affairs. The
Supreme Court did not agree with the interpretation made by
the High Court to curtail the power of the State Government.
The Supreme Court held thus:
“(16). ….That is an aspect which appealed greatly
to the learned Judges of the High Court and as we have
pointed out earlier, forms the main reasoning on which
they have arrived at the construction of the proviso.
Though we are not unmindful of the consequences and
implications of this construction, we consider that it
would not be proper to take these factors into
consideration where the words of the statute are clear
and what we have stated earlier should suffice to show
that, in our opinion the opposite construction is not
reasonably open without doing violence to the language
of the enactment either by omitting the words "or other
Municipal authorities" altogether or by rewriting the
section so as to achieve the desired result. We do not
conceive this to be the function of a Court of
construction but that it must be left to other organs of
Government. We, therefore, consider that the learned
Judges of the High Court were in error in holding that
the State Government had no power to entertain the
revision against the order of the President of the
Municipal Council and to quash it on that ground.”
In the case of State of Uttar Pradesh and others v.
Dr. Vijay Anand Maharaj
25
by referring to certain passages
in Maxwell on the Interpretation of Statutes and in Crawford on
Statutory Construction, the Supreme Court held thus:
“(8)....Crawford says that a liberal construction
24
AIR 1965 SC 1296 : (1965) 1 SCR 276
25
AIR 1963 SC 946 : (1963) 1 SCR 1
28
does not justify an extension of the statute's scope
beyond the contemplation of the Legislature. The
fundamental and elementary rule of construction is that
the words and phrases used by the Legislature shall be
given their ordinary meaning and shall be construed
according to the rules of grammar. When the language
is plain and unambiguous and admits of only one
meaning, no question of construction of a statute
arises, for the Act speaks for itself. It is a well
recognized rule of construction that the meaning must
be collected from the expressed intention of the
Legislature. So construed, there cannot be two possible
views on the interpretation of the first part of the
section....”
Applying those principles in the present case, from a
careful reading of Section 2(l) of the Act, 1982, Rules, 10, 11
and 14 of the Rules, 1998 it is evident that the words are clear
and unambiguous, hence they have to be given their literal and
ordinary meaning. The language of the aforesaid rule is so
simple that they admit only one meaning. They also
unmistakably show the intention of the legislature. By inserting
Section 12 in the Principal Act and Rule 14 of the Rules, 1998 it
is clear that Board's one of the functions regarding promotion
of teacher was taken away from it and it was entrusted to a
new statutory Committee. The detailed procedure is laid down
in Rule 14. Any construction with reference to proviso to Rule
10 will make whole scheme unworkable. The legislature/ rule-
making authority has deliberately and purposely used the
words 'year of recruitment' in Rule 14 of the Rules, 1998.
The Court cannot read the words “year in which vacancy
occurred” in Rule 14. This will amount re-writing Rule 14,
which is not permissible under the law as held by the Supreme
Court in the cases referred above.
During the course of submission, much emphasis has
been laid on the proviso to Rule 10, which provides that in case
the promotion quota is not complete, the post shall be treated
29
under the direct recruitment. It was urged that the year of
recruitment has to be same for the proviso to Rule 10 and Rule
14(2). It cannot be determined at whims of the Management
as it would lead to nepotism and favouritism.
Before adverting to the above submission, it would be
fruitful to consider the nature, scope and ambit of the proviso.
I find unbroken line of authority to the effect that a
proviso generally provides exception to the main provision. The
proviso cannot expand or limit the provision, to which it is
appended. It only embraces the field which is covered by the
main provision, by carving out an exception to it. As in the
present case, the language of the main provision is clear. A
proviso cannot be interpreted to nullify by implication what the
main provision clearly provides. It cannot set at naught the
real object of the main enactment. A proviso must be
construed with reference to the preceding part of the Clause to
which it is appended. Sometimes an unnecessary proviso is
inserted by way of abundant caution.
Recently, a three-Judge Bench of the Supreme Court in
the case of Sidhharth Viyas and another v. Ravi Nath
Misra and others
26
, has elaborately analysed the scope of
proviso and quoted with approval the principles in regard to
proviso collected in the Interpretation of Statutes by Sarathi.
Paragraph-15 of the judgment, as is material for our purpose,
is reproduced below:
“15. *** **** ***
30. Sarathi in Interpretation of Statutes at pp.
294-95 has collected the following principles in regard
to a proviso:
(a) When one finds a proviso to a section the
natural presumption is that, but for the proviso, the
enacting part of the section would have included the
subject-matter of the proviso.
26
(2015) 2 SCC 701
30
(b) A proviso must be construed with reference
to the preceding parts of the clause to which it is
appended.
(c) Where the proviso is directly repugnant to a
section, the proviso shall stand and be held a repeal of
the section as the proviso speaks the latter intention of
the makers.
(d) Where the section is doubtful, a proviso may
be used as a guide to its interpretation; but when it is
clear, a proviso cannot imply the existence of words of
which there is no trace in the section.
(e) The proviso is subordinate to the main
section.
(f) A proviso does not enlarge an enactment
except for compelling reasons.
(g) Sometimes an unnecessary proviso is inserted
by way of abundant caution.
(h) A construction placed upon a proviso which
brings it into general harmony with the terms of section
should prevail.
(i) When a proviso is repugnant to the enacting
part, the proviso will not prevail over the absolute
terms of a later Act directed to be read as supplemental
to the earlier one.
(j) A proviso may sometimes contain a
substantive provision.”
The Supreme Court in the case of The Commissioner of
Income-Tax, Mysore, Travancore-Cochin and Coorg,
Bangalore v. The Indo Mercantile Bank Limited
27
has held
as under:
“10. ...The proper function of a proviso is that it
qualifies the generality of the main enactment, by
providing an exception and taking out as it were, from
the main enactment, a portion which, but for the
proviso would fall within the main enactment.
Ordinarily it is foreign to the proper function of a
proviso to read it as providing something by way of an
addendum or dealing with a subject which is foreign to
the main enactment. “It is a fundamental rule of
construction that a proviso must be considered with
relation to the principal matter to which it stands as
27
1959 Supp (2) SCR 256 : AIR 1959 SC 713
31
proviso”. Therefore it is to be construed harmoniously
with the main enactment. (Per Das, C.J.) in Abdul
Jabar Butt v. State of Jammu & Kashmir
28
. Bhagwati,
J., in Ram Narain Sons Ltd. v. Assistant Commissioner
of Sales Tax
29
said:
“It is a cardinal rule of interpretation
that a proviso to a particular provision of a
statute only embraces the field which is
covered by the main provision. It carves out
an exception to the main provision to which it
has been enacted as a proviso and to no
other”.
11.Lord Macmillan in Madras & Southern Mahratta
Railway Co. v. Bezwada Municipality
30
laid down the
sphere of a proviso as follows:-
"The proper function of a proviso is to
except and deal with a case which would
otherwise fall within the general language of
the main enactment, and its effect is confined
to that case. Where, as in the present case,
the language of the main enactment is clear
and unambiguous, a proviso can have no
repercussion on the interpretation of the main
enactment, so as to exclude from it by
implication what clearly falls within its express
terms".
The territory of a proviso therefore is to carve out an
exception to the main enactment and exclude
something which otherwise would have been within the
section. It has to operate in the same field and if the
language of the main enactment is clear it cannot be
used for the purpose of interpreting the main
enactment or to exclude by implication what the
enactment clearly says unless the words of the proviso
are such that that is its necessary effect. (Vide also
Corporation of The City of Toronto v. Attorney-General
for Canada)
31
”
In Prakash and others v. Phulavati and others
32
the
Supreme Court has held as under:
“19. Interpretation of a provision depends on the
text and the context.
33
Normal rule is to read the words
28
(1957) S.C.R. 51, 59
29
(1955) 2 S.C.R. 483, 493
30
(1944) L.R. 71 I.A. 113, 122
31
(1946) A.C. 32, 37.
32
(2016) 2 SCC 36
33
RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424, p. 450, para 33
32
of a statute in ordinary sense. In case of ambiguity,
rational meaning has to be given.
34
In case of apparent
conflict, harmonious meaning to advance the object
and intention of legislature has to be given.
35
20. There have been number of occasions when a
proviso or an explanation came up for interpretation.
Depending on the text, context and the purpose,
different rules of interpretation have been applied.
36
21. Normal rule is that a proviso excepts
something out of the enactment which would otherwise
be within the purview of the enactment but if the text,
context or purpose so require a different rule may
apply. Similarly, an explanation is to explain the
meaning of words of the section but if the language or
purpose so require, the explanation can be so
interpreted. Rules of interpretation of statutes are
useful servants but difficult masters.
37
Object of
interpretation is to discover the intention of legislature.”
As noted above, the language of Rules 10 and 14 of the
Rules, 1998 is absolutely clear and free from any vagueness as
they are susceptible to only one meaning.
With effect from 27
th
July, 1998 by the Uttar Pradesh
Secondary Education Services Commission (Amendment) Act,
1998 (U.P. Act No. 25 of 1998) once again important
amendments have been made in the Principal Act of 1982. By
the said amendment, after Section 11 of the Principal Act,
Chapter III was inserted containing Section 12. Both the
amendments in the Principal Act and the Rule 14 of the Rules,
1998 are very significant for our purposes.
For the first time, the procedure for promotion was
completely changed. The Board is completely divested of its
one of its powers to make promotion of teachers. By inserting
Section 12 in the Principal Act a separate procedure is provided
whereunder a Selection Committee is constituted in each
region under the Chairmanship of the Regional Joint Director.
34
Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609 : 1988 SCC (Cri) 711
35
District Mining Officer v. TISCO, (2001) 7 SCC 358
36
S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591
37
Keshavji Ravji & Co. v. CIT, (1990) 2 SCC 231 : 1990 SCC (Tax) 268
33
In the Rules, 1998, Rule 14 of the Rules, 1995 was retained
except a change by adding word 'regular'. These changes
clearly show the intention of the legislature to take away the
power of promotion from the Board.
It is noteworthy that in 1998 the power of promotion has
been taken away from the Board. The proviso to Rule 10 has
been retained in the subsequent amendment but the intention
of the legislature was clear that the power of promotion has
been taken away from the Commission from the Board and a
separate statutory selection committee has been constituted.
Thus, the subsequent development clearly indicates that the
purpose of the year of recruitment in the promotion can be
separated from the direct recruitment. The proviso to Rule 10
was relevant when both the powers of the direct recruitment
and promotion were entrusted to the Board, but as mentioned
above, in 1998 both the powers of direct recruitment and
promotion are now with the Board and the separate statutory
authority has been constituted under Section 12 of the
Principal Act.
As regards the apprehension that the Committee of
Management can misuse its power, the said apprehension is
misconceived on two grounds:
(I)that if the literal meaning is clear then the Court cannot
resort to any other principle of interpretation whether it likes or
not the consequences. As held by the Supreme Court, the
Courts are not concerned with the consequences, it is domain
of the legislature to amend the law but under the garb of the
interpretation the Court cannot legislate.
(II)A careful reading of the schemes of the Act and the Rules
clearly indicates that the Committee of Management has not
been given unfettered power under the Act and the Rules
34
regarding the determination of the vacancies and sending
requisition to the Board or the Committee constituted under
Section 12 of the Act, 1982 for promotion. Rule 6 of the Rules,
1998 clearly indicates that if the Management fails to send the
requisition within the time-schedule, the Board can ask the
Inspector to send the requisition directly to the Board and it
shall be deemed to be sent by the Committee of Management.
The legal fiction provided in Rule 6 clearly indicates the
intention of the legislature that the Committee of Management
has not been given freehand in respect of determination of the
vacancies for direct recruitment as well as for promotion.
It is also significant to mention that Appendix 'A' has not
been changed right from the Rules, 1983, Rules, 1995 and the
Rules, 1998. The details which are required to be submitted in
the format of Appendix 'A' are very important. A complete
reading of Appendix 'A' would show that all the necessary
information regarding the number of sanctioned posts, details
of the teachers, seniority list, the qualification of the teachers,
subjects in High School/ Inter, strength of students, etc.. In
brief almost all the information are with the Inspector of the
schools. The Inspector from his records can easily find out
about the eligibility of the teachers for promotion, date of
vacancy and the vacancies likely to fall in a recruitment year.
In addition to above, the Board in respect of the direct
recruitment and the Joint Director of Education for the
promotion have the power under the provisions of the Act and
the Rules to ask the Inspector to submit additional information,
which they need in respect of the direct recruitment and
promotion.
Hence, in view of the scheme of the Act and the Rules it
is evident that the intention of the legislature is not to give
freehand to the Management. It has to send only information
35
to the Inspector and it does not have any authority either in
the Principal Act or in the Rules for promotion of a teacher. Its
simple duty is to send all the information of the teachers who
are eligible for promotion irrespective of the fact whether they
have applied or not.
In view of the above scheme, if any vacancy occurs in the
promotion quota and any teacher in the institution is eligible
for promotion in terms of Rule 14, then he has to be
considered for promotion. In case the Management does not
send the requisition, there are two options open to the
Inspector: (i) he can ask the Management to send the
information, and (ii) in case it does not send, he can forward
the name of the eligible candidates to the Committee under
Section 12 of the Act on the basis of the records of the
institution as mentioned in sub-rule (6) of Rule 4 of the Rules,
1998.
Insofar as the judgment of the Full Bench of this Court in
the case of Prashant Kumar Katiyar v. State of U.P. and
others
38
is concerned, the said Full Bench was called upon to
answer the following questions:
"(a) Whether a dependent can claim appointment
against a post of teacher even after the post has been
requisitioned to the selection Board in view of the
Regulations 101 to 106 of Chapter III of the
Regulations framed under the Intermediate Education
Act merely because he has qualifications for the same,
specifically when on the date of requisition, no such
application for compassionate appointment was
pending.
(b) Whether Article 16 of the Constitution of India will
be applicable to the teachers working in recognized
Intermediate Colleges which are under the private
management even if aided by the State Government.
(c) Whether the judgment of the Division Bench of this
Court in the case of Ved Prakash (Supra) lays down the
correct law."
38
(2013) 2 UPLBEC 971
36
Later on one more question was added by the Full Bench
under Chapter VI, Rule 6 of the Allahabad High Court Rules,
1952. The said question reads as under:
"(c) Whether the judgment of the Division Bench of this
Court in the case of Ved Prakash (supra) is in direct
conflict with the Division Bench judgment in the case of
U.P. Secondary Education (supra), and which of the two
decisions lay down the law correctly."
A perusal of the said questions indicates that the issue
involved in the present case regarding the promotion in terms
of Rule 14 of the Rules, 1998 was not before the said Full
Bench. In fact, the Full Bench was called upon to resolve the
conflicting decisions of two Division Benches in Ved Prakash
v. Hari Krishna Singh and others, Special Appeal No. 30
of 2011, decided on 19
th
January, 2011 at Lucknow Bench ,
and U.P. Secondary Education Services Selection Board
Allahabad v. State of U.P. and others, Special Appeal No.
146 of 2010, decided on 21
st
January, 2011. The dispute
decided by the Division Benches was in respect of the
candidates who have been selected by the Board on the posts
of Lecturers and Assistant Teacher against Advertisement No. 1
of 2009, but they were not appointed by the Management for
multiple reasons. They prayed for their appointment,
alternatively for their adjustment under Rule 13(5) of the
Rules, 1998. Another issue raised before the Full Bench was
regarding the compassionate appointment. The Full Bench
answered the aforesaid questions in the following terms:
“94. In view of what has been said above, our answer
to the questions (a) and (c) referred to us is as
follows:-
(A) The claim of a dependant as per the third proviso to
Section 16 of the 1982 Act read with Regulations 101
to 107 of Chapter III of the Regulations framed under
the 1921 Act can be considered for compassionate
appointment on the post of an Assistant Teacher (TGT
grade) against a vacancy that has been notified for
being filled up by direct recruitment under the 1982 Act
37
read with the 1998 Rules framed thereunder upto the
stage of the last date for receipt of application forms
under the advertisement, but not thereafter till the
selections are completed by the Board followed by
appointments under the provisions aforesaid.
(B) The law regarding the claim of compassionate
appointment as expounded in the case of Ved Prakash
(supra) is overruled to extent as indicated above in (A)
and explained in the body of the judgment.
(C) The view taken by the learned Single Judge in the
case of Raja Ram (supra) and affirmed by the division
bench in the case of U.P. Secondary Education Services
Selection Board, Allahabad (supra) stands modified to
the extent as indicated in (A) hereinabove in so far as it
relates to compassionate appointments only.
(D) The view expressed by the learned Single Judge in
Raja Ram's case (supra) and affirmed by the division
bench in U.P. Secondary Education Services Selection
Board (supra) in so far as it relates to other modes of
appointment is approved and the judgements to that
extent are affirmed.
(E) The interpretation, the scope and applicability of
Rule 13(5) of the 1998 Rules as affirmed in the case of
U.P. Secondary Education Services Selection Board
(supra) is upheld as laying down the law correctly by
confining its applicability to the vacancies that are
subject matter of the same advertisement and not to
such vacancies that were notified but not subject
matter of the same advertisement.”
From the nature of the questions referred to the Full
Bench and the answer to the reference it is abundantly clear
that there was no issue involved in respect of the promotion
and the year of recruitment referred to in Rule 14 of the Rules,
1998. A careful reading of the entire judgment would show
that there is not even a reference of Rule 14 of the Rules,
1998, which deals with the promotion. Hence, any observation
made in the decision of the Full Bench in Prashat Kumar
Katiyar (supra) has no binding precedent in the issue
involved in the case in hand.
In addition to above, the Full Bench has not considered
38
the judgment of Balbir Kaur (supra) of the Supreme Court,
wherein Rules 10 and 11 of the Rules, 1998 have been
considered and the Court has expressed its opinion that the
vacancies of the different year of recruitment can be clubbed
together. The judgment of the Supreme Court in Balbir Kaur
(supra) has escaped the notice of the Full Bench. As regards
some observations of the Full Bench in respect of Rule 11 and
the year of recruitment are concerned, at the highest it is not a
ratio of the judgment. Since the issue of the year of
recruitment viz-a-viz Rule 14, which deals with promotion, was
not before the Full Bench, its any observation is mere an
obiter.
The Supreme Court has considered the issue that when a
judgment is binding, elaborately in the case of Dalbir Singh
and others v. State of Punjab
39
. Following passage is, in this
regard, apposite:
“22. ...According to the well-settled theory of
precedents every decision contains three basic
ingredients:
(i) finding of material facts, direct and inferential. An
inferential finding of facts is the inference which
the Judge draws from the direct or perceptible
facts;
(ii) statements of the principles of law applicable to
the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of (i)
and (ii) above.
For the purposes of the parties themselves and their
privies, ingredient (iii) is the material element in the
decision for it determines finally their rights and
liabilities in relation to the subject matter of the action.
It is the judgment that estops the parties from
reopening the dispute. However, for the purpose of the
doctrine of precedents, ingredient (ii) is the vital
element in the decision. This indeed is the ratio
decidendi
40
. It is not everything said by a judge when
giving judgment that constitutes a precedent. The only
thing in a judge's decision binding a party is the
39
(1979) 3 SCC 745
40
R.J. Walker & M.G. Walker: The English Legal System, Butterworths, 1972. 3
rd
Ed.. pp. 123-124.
39
principle upon which the case is decided and for this
reason it is important to analyse a decision and isolate
from it the ratio decidendi. In the leading case of
Qualcast (Wolverhampton) Ltd. v. Havnes
41
it was laid
down that the ratio decidendi may be defined as a
statement of law applied to the legal problems raised
by the facts as found, upon which the decision is based.
The other two elements in the decision are not
precedents. The judgement is not binding (except
directly on the parties themselves), nor are the findings
of facts. This means that even where the direct facts of
an earlier case appear to be identical to those of the
case before the court, the judge is not bound to draw
the same inference as drawn in the earlier case.”
It is a trite that a decision ordinarily is a decision in the
case before the Court while the principle underlying the
decision would be treated as a binding precedent, but not
every observation. A decision takes its colour from the
questions involved in the case in which it is rendered. The
scope of precedent cannot be expanded unnecessarily beyond
the issue involved in that case. Reference may be made to the
judgment of the Supreme Court in Prakash Chandra Shah v.
State of Gujarat
42
. Applying these principles of law, I regret
my inability to lend concurrence to the aforementioned view in
Prashant Kumar Katiyar (supra) .
The next question which merit consideration is whether
intention of the legislature/ rule-making authority is to give
different meaning to the 'year of recruitment' in the Act and
the Rules or it should be given same meaning. The Full Bench
in Raeesul Hasan (supra) dwelt upon this issue elaborately
and has followed the judgments of the Supreme Court.
In this regard it is worthwhile to refer to the judgment of
the Supreme Court in Harish Chandra Ram v. Mukh Ram
Dubey
43
. The Supreme Court has given a hypothetical
example, which is in the line of reasoning given in Balbir Kaur
41
LR 1959 AC 743 : (1959) 2 All ER 38
42
(1986) 1 SCC 581
43
1994 Supp (2) SCC 490
40
(supra). Paragraph-6 of the judgment is relevant for our
purpose and it reads thus:
“6. Take another illustration. Suppose Public
Service Commission advertises for direct recruitment in
the year 1980, but actually selects the candidates in
1984. Whether 1980 would be the recruitment year?
Answer would be no. Second advertisement was made
in 1985 and recruitment was made in 1990. The second
recruitment year is 1990 and not 1985. It is thus clear
that the recruitment year is the year in which
recruitment takes place, but not each three successive
years in which the vacancy exists. The same yardstick
would apply to fill in the reserved vacancy.
Dereservation will be considered only at the end of
third recruitment year provided reserved candidates
are not available, or considered at the recruitment and
found not fit for promotion or carried forward for three
successive recruitment years. Then the matter should
be placed before the competent authority for
consideration for dereservation of the reserved posts
and a resolution or order should be made dereserving
the posts. Then those alone reserved posts or
vacancies will be thrown open for recruitment by the
general candidates.”
(emphasis supplied)
Similar issue regarding year of recruitment also fell for
consideration before the Supreme Court in State of U.P. v.
Sangam Nath Pandey
44
.
As noticed by the Supreme Court in Balbir Kaur
(supra), it would be an ideal situation that the Board will
complete the recruitment every year, which is the clear
intention of the legislature, but the past experience reveals
that from 1982, when the Board was established, it could
never achieve the said object. The Board is not able to
complete the process of recruitment in a year of recruitment. It
takes average 2-3 years to complete the process of
recruitment, sometimes for years together the recruitment is
stopped for one or another reason. Thus, on the ground of
practical difficulties on multiple reasons, the vacancies go on
accumulating, hence over emphasis on the compliance of the
44
(2011) 2 SCC 105
41
provisions to complete the entire recruitment process in a year
of recruitment will make the statute unworkable. Regard may
be had to the fact that there is no scheme in the Act, Rules or
in the provisions of the Act, 1921 to prepare the seniority list in
the promotion quota on the basis of the yearwise vacancy. In
absence of any such provision in the aforesaid provisions of the
Act, 1982, Act, 1921 and the Rules made under the Act, 1982
the clubbing of vacancies of different years of recruitment
cannot be held to be illegal.
During the course of hearing the Court had requested the
learned Additional Advocate General to produce the original
record to ascertain the intention of the rule-making authority
to incorporate the year of recruitment in Section 2(l) of the
Act, 1982 and under the Rules 1995 and the Rules, 1998.
The learned Additional Advocate General has failed to
produce any record. He has filed an affidavit of the Principal
Secretary, Secondary Education, Government of U.P.. In the
said affidavit it is mentioned that for the appointment on
different posts in the State, the Personnel Department of the
State Government issued a Government order dated 20
th
August, 1993, whereby a procedure has been laid down for the
selection. It is mentioned that the Personnel Department has
issued another Government order dated 19
th
May, 2001.
Relevant part of Para-11 (iv) and (v) of the affidavit has a
material bearing in this regard hence it reads thus:
“(iv) That the Personal Department has issued a
Government Order dated 19.5.2001, Para 2 (1) of the
said Government Order reads as under:
**izFke tqykbZ ls izkjEHk gksus okyh ckjg ekg dh vof/k ftls ,d
p;u o"kZ dgk tkrk gS] esa ?kfVr fjfDr;ksa gsrq ;FkklaHko ,d gh p;u
lEiUu fd;s tkus dh uhfr gS A vr% p;u ds fy, ,d p;u o"kZ esa Hkjh
tkus okyh lHkh fjfDr;ksa dh x.kuk dh tk;] ftlesa vuqlwfpr tkfr]
tutkfr o vU; vkjf{kr oxksaZ ds fy, muds fu/kkZfjr dksVs ds vuqlkj
vyx vyx fjfDr;ka Hkh vo/kkfjr dh tk; rFkk p;u ds le; mlls
p;u lfefr dks voxr djk;k tk;s A**”
42
(v) That it is pertinent to mention here that at the time of
promulgation of Uttar Pradesh Secondary Education
Services Selection Commission Rules, 1995, while
submitting the proposal 'first day of year of Recruitment'
has not mentioned on the note sheet of the file, but it
appears that at the time of English Drafting of the said
Rule the Legislative Department, taking into the
consideration of the provisions contained in different
Government Orders issued by Personal Department, has
inserted the provisions of Rule 14(1) on the strength of
U.P Act No. 1 of 1993.”
It is evident from the aforesaid affidavit that the intention
of the rule making authority is very clear. It wanted to bring
uniformity in all the Government Departments including the
Education Department in respect of the year of recruitment.
The use of word **;FkklEHko** (as far possible) would show
that recruitment in the same recruitment year is not a
mandatory and is a directory as held by the Supreme Court in
Balbir Kaur (supra), which has held that it would be ideal to
hold the selection in the same recruitment year but if it is not
possible then there is nothing illegal to club the vacancies. The
interpretation of the aforesaid rule in Prashant Kumar
Katiyar (supra), thus, does not reflect correctly the intention
of the rule making authority.
In addition to above, the judgment of the Full Bench in
Raeesul Hasan (supra) has not been challenged by the State
or any aggrieved person. The said judgment has attained
finality. Smt. Sadhana (supra) case has not pointed out that
the judgment of Raeesul Hasan (supra) is per incuriam and
any statutory provision or any binding precedent has escaped
its notice.
For all the reasons mentioned herein-above, I am of the
view that the judgment in Raeesul Hasan (supra) does not
need any reconsideration. It has correctly laid down the law.
43
In view of the reasons mentioned above, my answer to
the questions referred to this Bench is as follows:
(A)The Full Bench in the case of Raeesul Hasan (supra)
has laid down the correct law.
(B)There is no provision under the Act, 1982 or the Rules for
the yearwise selection. Since the vacancies can be clubbed, the
recruitment year is in the year when recruitment takes place.
The Court cannot substitute the words “year in which the
vacancy occurred” for the words “year of recruitment”.
(C)The effect of proviso to Rule 10 of the Rules, 1998 is that
if in the year of recruitment no eligible candidate under the
promotion quota is available, the post can be filled by the
direct recruitment. But in case recruitment does not take place,
the vacancies can be clubbed and eligibility of a candidate can
be determined on the first day of the year of recruitment when
it takes place.
(D)The scheme of the Act and the Rules shows that there is
sufficient safeguard to prevent any such abuse of the
provisions by the Management.
(E)As held by the Supreme Court in Balbir Kaur (supra)
vacancies can be clubbed, hence, a teacher who fulfills the
norms of eligibility on the first day of the year of recruitment
has to be considered and not on the first day of the year 'when
vacancy occurs'.
Date :- 30
th
May, 2017
SKT/Digamber
(P.K.S. Baghel, J.)
Legal Notes
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