1

Reserved on 30

th

March, 2017

Delivered on 30

th

May, 2017

A.F.R.

Court No. - 21

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

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.

(Delivered by Arun Tandon, J. on behalf of

V.K.Shukla, J., Sunita Agarwal, J. and M.C. Tripathi, J.)

(majority view)

A Division Bench of t\his Court finding it difficult to

agree with the Full Bench judgment in the case of Raeesul

Hasan versus State of U.P. & Others reported in 2015 (6)

ADJ 778 referred the following questions for being examined by

a Larger Bench vide order dated 15

th

July, 2016:

“a. Whether the Full Bench in the case of

Raeesul Hasan (supra) has laid down the correct

law.

b. Whether there can be two different years

of recruitment with reference to the posts, which

are within the direct recruitment quota and for the

posts within the promotion quota under Rules

10,11 and 14 of the Rules, 1998.

c. Whether Rule 10 of the Rules 1998 read

with the proviso attached to it necessarily entails

the determination of the number of vacancies to

be filled by way of promotion in that year of

2

recruitment which would end on 30th of June of

the succeeding year by adding all the existing and

likely vacancies due for retirement so as to make

the proviso workable which requires that the

vacancies, which may not be filled by promotion

be intimated to the Board for direct recruitment by

31 of July of that year.

d. Whether the view taken by the Full bench

would result in giving a leverage to the

management to decide as to what would be the

year of recruitment under Rule 14 of Rules 1998

or determine the 1st day of the year for eligibility

requirements for promotion at its whims and

fancies and thereby defeat the right of eligible L.T.

Grade teachers for promotion on their turn.

e. Whether determination of the quota under

which a particular vacancy in Lecturer's grade

would fall has necessarily to be so done with

reference to the date of occurrence of vacancy in

the institution or the management has a right to

club all the vacancies of the recruitment year and

decide which is to be filled by direct recruitment

and which by promotion.”

The Hon'ble The Acting Chief Justice vide order dated

28

th

July, 2017 constituted this Special Bench for considering

the questions so referred.

We have accordingly assembled. We have heard Sri

Anoop Trivedi, Advocate on behalf of the respondent no.6-writ

petitioner, Sri G.K. Singh, learned Senior Advocate assisted by

Sri Hritudhwaj Pratap Sahi, Advocate on behalf of appellant-

respondent, Sri Rajesh Kumar Mishra, Advocate on behalf of

respondent no.5 and Sri C.B. Yadav, the learned Additional

Advocate General assisted by Sri Shashank Shekhar Singh,

learned Additional Chief Standing Counsel on behalf of the

State-respondents.

The facts relevant for answering the questions, which

have been referred, lie in very narrow compass and are as

3

under:

Mewa Lal Ayodhya Prasad Gupta Smarak Inter College,

Soraon, Allahabad (hereinafter referred to as the "institution") is

an aided and recognized institution governed under the

provisions of the Intermediate Education Act, 1921 (hereinafter

referred to as the 'Act, 1921'). The provisions of the Act, 1921

and the regulations framed thereunder as also those of the U.P.

Secondary Education Services Selection Board Act 1982

(hereinafter referred to as the Act 1982) and the rules and

regulations framed thereunder are applicable to the teachers of

the institution.

A post of Lecturer(Hindi) fell vacant in the said institution

in the year 2000. The petitioner, Amar Singh was appointed in

the said institution on the recommendation of the Selection

Board as L.T. grade teacher on 30.11.2004. He moved an

application seeking promotion against the said vacancy of

lecturer (Hindi) in the year 2012. This application remained

pending.

In the meantime, a Full Bench of this Court in the case of

Raeesul Hasan Vs. State of U.P. and others reported in 2015

(6) ADJ 778 held that the eligibility for the post of lecturer as

required to be determined under Rule 14 of the U.P. Secondary

Education Services Selection Board, Rules 1998 (hereinafter

referred to as the "Rules, 1998"), must be with reference to the

first day of the year of recruitment in which the Committee of

Management decides to make promotion on the said post. That

would be the recruitment year for the purpose of promotion.

Based upon the aforesaid judgment the petitioner filed a

fresh representation before the educational authority for his

promotion, which was not considered. He, therefore, filed Writ

Petition No. 59229 of 2015. The writpetition was disposed of

4

vide judgment and order dated 26.10.2015 requiring the

Education Authority to consider and decide the pending claim.

The claim of the petitioner for promotion has been

rejected vide order dated 29.4.2016 on the ground that the

petitioner did not possess the required experience of five years

of teaching in L.T. Grade on the first day of the year of

recruitment in the facts of the case 2000-2001, as required

under Rule 14 of the 1998 Rules.

Dissatisfied, the petitioner filed Writ A No. 21753 of 2016

(Dr. Amar Singh vs. State of U.P. & 4 Others). The learned

Single Judge, following the judgment of the Full Bench in

Raeesul Hasan (Supra) has allowed the writ petition vide

judgment and order dated 13th May, 2016. A direction has been

issued to the Regional Joint Director of Education to consider

the claim of the petitioner for promotion against the vacant post

of lecturer (Hindi) in accordance with the Full bench judgment

of this Court in the case of Raeesul Hasan (Supra). It is

against this judgment that a intra-court appeal has been filed.

The appellant before the Court is a lecturer in Nathu Ram

Purohit Balika Inter College, Konch, District Jalaun. She moved

an application for her transfer in accordance with Regulations

55 to 62 of Chapter-III of the Regulations framed under the

Intermediate Education Act, 1921 (hereinafter referred to as the

"Act, 1921") to the institution in question against the same

vacancy of lecturer in Hindi in the institution.

It may be recorded that Section 16 of Act, 1982

(hereinafter referred to as the "Act, 1982") does contemplate

appointment by way of transfer. It is settled law that an order for

transfer can only be made under the statutory provisions

applicable against a vacancy, which falls within the quota for

5

direct recruitment only and with the concurrence of the

Committee of Management of the two institutions.

According to the appellant, both the respective

Committee of Management granted no objection to the transfer

of the appellant and ultimately the matter was placed before the

Additional Director who accorded his approval.

Now because of the order of the writ court, her claim for

transfer stands frustrated. The appellant, therefore, filed the

special appeal along with an application seeking leave to

appeal on the ground amongst other that she was a necessary

party to the writ proceeding and for her non-impleadment, the

writ petition was liable to be dismissed.

Appellant's plea is that the judgment of Full Bench in the

case of Raeesul Hasan (Supra) does not lay down the correct

law. The issue as to whether a particular post falls within the

quota for direct recruitment is required to be determined under

Rule 10 of the Rules, 1998 read with Rule 11 of the said Rules.

Such determination is to be done in respect of the existing

vacancies as well as those which are likely to fall vacant during

the course of the year, i.e. up to the last day of the year of

recruitment.

Once the vacancies for direct recruitment in an institution

are determined, the remaining vacancies would necessarily fall

within the quota for promotion. It is explained that the proviso to

Rule 10 of Rules, 1998 specifically provides that if in any year

of recruitment, any vacancy cannot be filled by promotion on

account of non availability of eligible candidate, it has

necessarily to be filled by direct recruitment.

This process, according to the appellant, has to be

completed with reference to the year of recruitment in which the

6

determination of the vacancies is done inasmuch as the

vacancy within the quota for direct recruitment has to be

notified in the manner laid down under Rule 11 of the Rules,

1998. It is further stated that there cannot be two different

meanings for the phrase 'years of recruitment', one for the post

within the direct recruitment quota and the other for the posts

within the quota for promotion in the same institution.

It was lastly explained that Rule 10 and Rule 11 the

Rules, 1998 have to be read in conjunction with Rule 14 for

determining as to what would be the first day of the 'year of

recruitment' on which a teacher in L.T. Grade must possess five

years teaching experience so as to make him eligible for

promotion on the post which falls within the promotion quota.

It is, therefore, submitted that the law laid down by the full

Bench in Raeesul Hasan (supra) needs to be reconsidered in

light of the Rules 10 to 14 of 1998' Rules so as to make the

proviso to Rule 10 of the Rules, 1998 workable and to make

first day of the year of recruitment certain, as contained in Rule

14 of the Rules '1998.

It was also stated that if the judgment in the case of

Raeesul Hasan (supra) is given effect to, it will lead to a

precarious situation where a teacher not even born on the rolls

of the institution on the date of occurrence of vacancy (like in

the facts of this case) may set up a claim for promotion after

decades only because the management of the institution, at the

relevant point of time, did not requisition the vacancy for direct

recruitment for years together, despite the fact that there was

no suitable eligible person available for appointment by

promotion and thereby succeeded in keeping the post vacant

for an uncertain period.

The respondent-petitioner on the contrary submitted that

7

the Full Bench of this Court has taken note of all the statutory

provisions which are applicable for determination of vacancies

and appointment by promotion. The Full Bench has dealt with

the statutory provisions including the proviso to Rule 10 and

Rule 14 of Rules, 1998 and has came to a definite conclusion

that the words "the first day of the year of recruitment"

contained in Rule 14 of Rules, 1998 would mean the first day of

the year in which the recruitment is made. It has, therefore,

been held that the eligibility of candidates has to be determined

with reference to the year in which the Committee of

Management decides to fill in the vacancy by promotion.

According to the respondent-petitioner, the date of

occurrence of vacancy with reference to the year in which it has

caused is wholly irrelevant. He submitted that as the petitioner

had completed more than five years of service when his claim

for promotion against the post of Lecturer (Hindi) was

considered. There is no illegality in the order of the learned

Single Judge so as to warrant any interference.

It was also explained to the Court that the Full Bench did

not subscribe to the contrary view expressed by the Division

Bench in its judgment in the case of Km. Poonam Vs State of

U.P. and others reported in 2008 (1) ADJ 273 (DB) and held it

to be an incorrect law on the point.

It is on these facts and issues that the aforesaid

questions have been referred for consideration to the Larger

Bench.

Sri Anoop Trivedi, learned counsel for the writ petitioner

raised a preliminary objection with regard to the reference itself

being bad.

According to Sri Anoop Trivedi, the Division Bench could

8

not have doubted the correctness of the Full Bench judment of

this Court in the case of Raeesul Hasan (Supra). He has

heavily relied upon the judgment of this Court in the case of

Natraj Chhabigarh versus State of U.P. Through Secretary

Institutional Finance, U.P. Secretariat, Lucknow & Another

reported in 1997 (30) ALR 24, wherein it has been held as

follows:

“Thus, a necessary corollary the Division

Bench is higher Court than the Single Judge

Court, and the Full Bench is higher Court than the

Division Bench and therefore, correctness of the

Division Bench decision cannot be doubted by

Single Judge Bench and that of the Full Bench

decision cannot be doubted by Division Bench and

accordingly judicial propriety demands that the

Division Bench decision should not be referred

to larger Bench by Single Judge Bench and the

Full Bench decision should not be referred to

still larger Bench by the Division Bench. It is

only for the Benches of coordinate jurisdiction

to refer the decisions of equal Benches to the

larger Benches, in case they doubt its

correctness.”

He would contend that the binding nature of precedents

generally and of Full Benches in particular, is the kingpin of our

judicial system. It is the bond that binds together what

otherwise might well become a thicket of individualistic opinion

resulting in a virtual judicial anarchy. According to him this is a

self-imposed discipline which rightly is the envy of other

Schools of Law. The judgments of the Benches of the same

High Court in a limited way are binding in the sense that a

judgment cannot be rendered contrary to the earlier decision of

a co-equal Bench. At the highest an equivalent Bench can

seek reconsideration of the same by a Larger Bench.

Reference has also been made to the order passed by

9

the Full Bench of the Allahabad High Court in the case of Rana

Pratap Singh versus State of U.P. Reported in 1995 JIC 1062

(All) (FB). The relevant paragraph whereof reads as follows:

“17. On this aspect another relevant

judicial pronouncement comes in Ambika

Prasad v. State of U. P. . There, in the

context of the U.P. Imposition of Ceilings on

Land Holdings Act, 1961, while dealing with

the question as to when reconsideration of a

judicial precedent is permissible, Krishna

Iyer, J. so aptly put it "Every new discovery

or argumentative novelty cannot undo or

compel reconsideration of a binding

precedent".

19. Implicit, thus, in the disregard by a

single Judge or a Division Bench of a binding

judicial precedent of a larger Bench or

seeking to doubt its correctness for reasons

and in circumstances other than those spelt

out in Pritam Kaur's case (supra) is what

cannot but be treated as going counter to the

discipline of law so essential to abide by, for

any efficient system of law to function, if not

it virtually smacking of judicial impropriety. In

other words, it is only within the narrow

compass of the rule as stated by the Full

Bench in Pritam Kaur's case that

reconsideration of a judgment of a larger

Bench can be sought and as has been so

expressively put there, such judgments

are not "to be blown away by every side

wind".

20. ….............. We are, with respect,

unable to concur or accept as correct these

observations, in so far as, they imply that a

single Judge can seek, by reference,

reconsideration of a binding decision of the

Division Bench and much less that the

question framed by him, doubting the

correctness of a Division Bench, be referred

for decision to a Full Bench.”

For the same proposition, Sri Anoop Trivedi, learned

10

counsel for the writ petitioner has referred the judgment of the

Apex Court in the case of Bharat Petroleum Corporation Ltd.

Versus Mumbai Shramik Sangh and Others, reported in

(2004) 4 SCC 448 and in the case of Pradip Chandra Parija

& Others versus Pramod Chandra Patnayak reported in

(2002) 1 SCC 1 and Central Board of Dawoodi Bohra

Community and Another versus State of Maharashtra

reported in (2005) 2 SCC 673.

On merits, he further submits that it is pertinent to note

that the Principal Act specifically sets out distinct provisions for

the two sources of appointment, viz direct recruitment and

recruitment by promotion.

Further, it is noteworthy that neither Section 10 nor

Section 12 of the Principal Act provides for any specific

provision which may even remotely be construed to state that

the appointing authority is mandated to conduct the recruitment

each and every year.

As stated above, the said provisions do not, in any case,

provide for any chained system of recruitment.

The proviso to the above stated Rule 10 is apparently

subject to the provisions contemplated under Rule 14 of the

Rules, 1998 which categorically provides for the procedure for

recruitment by promotion. It is pertinent to note that the said

proviso can be attracted only once the procedure prescribed

under Rule 14 of the Rules, 1998 is followed and an opinion is

formed that there are no suitable candidates for recruitment by

promotion. In other words, the interplay between Rule 14 and

proviso to Rule 10 of Rules, 1998 is that in order to ascertain

that no suitable eligible candidates are available for promotion

and the recruitment may be done by direct recruitment, the

11

actual test as set out in Rule 14 of Rules, 1998 must be

passed, because it is only through Rule 14 of Rules, 1998, as

specifically stated therein, that availability of suitable

candidates can be ascertained, and not otherwise.

That from bare perusal of the provisions contemplated

under Rule 12 of Rules, 1998, it is quite evident that the

legislature, in its wisdom, has not provided any specific timeline

for the initiation of recruitment or selection process. Additionally,

sub-rule (1) of Rule 2 of Rules, 1998, though obliges the Board

to advertise the vacancies in 2 daily newspapers, does not

stipulate or provide for any specific date or time period within

which the advertisement must be published.

The sub-rule (1) of Rule, 14 of Rules, 1998 provides that

the question of eligibility qua the qualification is required to be

ascertained on the first day of the year of recruitment and not

on the date of occurrence of vacancy. Further, it may be added

that the said requirement was earlier there in the 1983 Rules,

however, subsequently the Rules were amended and the said

requirement was dispensed with.

No time period or time line, whatsoever, has been

provided in sub-rule (3) of Rule 14 of Rules, 1998. There is no

obligation under Rules, 1998 on the Management to prepare

the list of eligible teachers within any particular time or in the

same year in which the vacancy arose.

In the light of the above-mentioned, it is thus evidently

clear that there was no embargo on the clubbing of vacancies

of different years for making recruitment by promotion, under

the provisions of Rule 14 of Rules, 1998.

He placed reliance upon the following judgments:

(i)Balbir Kaur & Another versus U.P. Secondary

12

Education Services Selection Board, Allahabad &

Others; 2008 (12) SCC 1,

(ii)Jammu and Kashmir Public Service Commission

etc versus Dr. Narinder Mohan & Others etc.; 1994

(2) SCC 630,

(iii)Balbir Chand Atri & Others versus State of J & K;

2008 (2) JKJ 167,

(iv)Rajasthan Council of Diploma Engineers & Another

Vs. The State of Rjasthan & Another; 1991 (2) WLC 597.

Sri Anoop Trivedi, learned counsel for respondent-

petitioner has also submitted before us that the basic rule of

statutory interpretation is that the words used in statute must be

provided their simple meaning. He has placed reliance upon

the following judgments:

(i)D.R. Venkatachalam & Others versus Dy. Transport

Commissioner & Others; 1977 (2) SCC 273.

(ii)Chief Justice of Andhra Pradesh & Others versus

L.V.A. Dixitulu & others Vs. V.V.S. Krishnamurthy &

Others; 1979 (2) SCC 34.

(iii)Padma Sundara Rao (dead) & Others versus State

of T.N. & Others; 2002 (3) SCC 533.

(iv)Reserve Bank of India versus Peerless General

Finance and Investment Co. Ltd. & Others; 1987 (1)

SCC 424.

(v)Rishabh Agro Industries Ltd. versus P.N.B. Capital

Services Ltd.; 2000 (5) SCC 515.

(vi)Kehar Singh & Others versus State (Delhi

Administration); 1988 (3) SCC 609.

(vii)Shashikant Laxman Kale & Another versus Union of

13

India & Another; 1990 (4) SCC 366.

(viii)Ameer Trading Corporation Ltd. versus Shapoorji

Data Processing Ltd.; AIR 2004 (1) SCC 355.

(ix)District Mining Officer & Others versus Tata Iron &

Steel Co. & Another; 2001 SCC (7) 358.

(x)Babu Manmohan Das Shah & Others versus Bishnu

Das; 1967 AIR (SC) 643.

(xi)Kanai Lal Sur versus Paramnidhi Sudhukhan; AIR

1957 SC 907.

Sri Anoop Trivedi has also submitted that the Courts are

not required to proceed with any preconceived notions for

interpreting/determining the meaning of a particular

provision/rule.

He further submitted that the rule of construction that

same meaning is implied by the use of the same expression in

every part of an Act is only one element of the rule. In deciding

the true import of the statutory provision, it is necessary to

ascertain the purpose behind the particular provision and its

setting in the scheme of the statute.

According to him, same words may be used in different

sense in same statute and even in the same section.

In support of his case, he has placed reliance upon the

following judgments:

(i)Shamrao Vishnu Parulekar versus The District

Magistrate, Thana; AIR 1957 SC 23.

(ii)Jeewanlal (1929) LTD. Calcutta versus Its

Workmen; AIR 1961 SC 1567.

(iii)Commissioner of Income Tax, Bangalore versus

Venkateshwar Hatcheries (P) Ltd. etc. etc.; 1999 (3)

14

SCC 623.

(iv)Vangaurd Fire & General Insurance Co. Ltd. Madras

versus Fraser & Ross & Another; AIR 1960 SC 971.

Sri G.K. Singh, learned Senior Advocate on behalf of

appellant-respondent and Sri C.B. Yadav, learned Additional

Advocate General on behalf of the State have supported the

referring order and contended that the legal position has

already been explained by the Full Bench in the case of

Prashant Kumar Katiyar versus State of U.P. & Others

reported in 2013(1) ESC 221 (All) (FB).

We have carefully examined the preliminary objection so

raised by Anoop Trivedi, learned counsel for the writ petitioner.

In our opinion, the contention so raised proceeds on

misreading of the order of reference made by the Division

Bench dated 15

th

July, 2016.

The Division Bench had only opined that the questions as

noticed above did need examination by Larger Bench and

accordingly opined as follows:

“Let this order be placed before Hon'ble The

Acting Chief Justice for consideration of

constituting a larger Bench to answer these

issues.”

On a simple reading of the aforesaid part of the order of

the Division Bench dated 15

th

July, 2016, it will be seen that it

had not expressed any opinion about the matter being referred

to a Bench of larger number of Hon'ble Judges than the Full

Bench of this Court i.e. 3 Hon'ble Judges. It was Hon'ble The

Acting Chief Justice, who had taken a decision that the matter

needs to be examined by 5 Hon'ble Judges and, accordingly,

15

constituted this Bench.

For a Bench of two Judges, its opinion that the questions

referred be examined by a Larger Bench means that the same

can be looked into by a Bench of 3 Judges or such larger

number of Judges as the Chief Justice desires. We may notice

that 3 Judges' Bench is also a Larger Bench for the Division

Bench.

Judgments, which have been so heavily relied upon by

Sri Anoop Trivedi, learned counsel for the writ petitioner in

support of his preliminary objection do not lay down anything to

the contrary. What has been laid down in the aforesaid

judgments is that a Bench of two Hon'ble Judges cannot

directly refer the matter to the Larger Bench. If a Division Bench

has any doubt about a judgment of a Full Bench, then it can at

best direct the matter to be placed before the Chief Justice for

being considered by a Bench of such number of Judges as the

Chief Justice may deem fit and proper. It flows from the

judgments cited at bar in our opinion that a Bench of lesser

number of Hon'ble Judges cannot directly overrule the

judgment of a Coordinate Bench or of a Larger Bench. In case

a Bench finds it difficult to agree with the law laid down by

equal number of Hon'ble Judges or by a larger number of

Judges, it can at best direct the matter to be placed before the

Chief Justice for consideration of the questions referred by

such number of Hon'ble Judges as the Chief Justice may

decide. The power of the Chief Justice for the matter being

heard by a Bench comprising of larger number of Hon'ble

Judges or equal number of Hon'ble Judges or such number of

Hon'ble Judges as Hon'ble The Chief Justice may decide, is

conceded by all the Advocates at bar. It is within the domain of

Hon'ble The Chief Justice to constitute a Bench for hearing

16

such a reference by a Bench comprising of such number of

Judges equivalent to the Bench, whose judgment has been

doubted or by a Bench of large number of Hon'ble Judges, than

the Bench, which had decided the judgment in doubt.

Reference in that regard be made to the judgment of the Apex

Court in the case of Central Board of Dawoodi Bohra

Community & Another versus State of Maharashtra &

Another reported in (2005) 2 SCC 673. Relevant paragraph-12

of the said judgment reads as follows:

“12.Having carefully considered the

submissions made by the learned senior counsel

for the parties and having examined the law laid

down by the Constitution Benches in the

abovesaid decisions, we would like to sum up the

legal position in the following terms :-

(1) The law laid down by this Court in a

decision delivered by a Bench of larger

strength is binding on any subsequent Bench

of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot doubt the

correctness of the view of the law taken by a

Bench of larger quorum. In case of doubt all

that the Bench of lesser quorum can do is to invite

the attention of the Chief Justice and request for

the matter being placed for hearing before a

Bench of larger quorum than the Bench whose

decision has come up for consideration. It will be

open only for a Bench of co- equal strength to

express an opinion doubting the correctness of

the view taken by the earlier Bench of co- equal

strength, whereupon the matter may be placed for

hearing before a Bench consisting of a quorum

larger than the one which pronounced the

decision laying down the law the correctness of

which is doubted.

(3) The above rules are subject to two

exceptions : (i) The abovesaid rules do not bind

the discretion of the Chief Justice in whom

vests the power of framing the roster and who

can direct any particular matter to be placed

for hearing before any particular Bench of any

17

strength; and …..............”

In order of keep the records straight, it may be noticed

that in the case of Raeesul Hasan versus State of U.P.

Through its Secretary, Secondary Education, U.P. Civil

Secretariat, Lukcnow & Others) itself a doubt was raised by a

learned Single Judge vide order dated 20

th

December, 2016

passed in Writ Petition No. 1593 (S/S) of 2001 along with

connected petitions in respect of Division Bench Judgment in

the case of Km. Poonam versus State of U.P. & Ohters

reported in 2008 (1) ADJ 273 (DB). The Hon'ble The Chief

Justice at the relevant time thought it proper to constitute a

Bench of three Hon'ble Judges to answer the questions

referred instead of referring the same to a Bench of two Hon'ble

Judges. It is this Full Bench Judgment which has been

doubted and is under consideration before us.

In view of the aforesaid, the preliminary objection raised

by Sri Anoop Trivedi, learned counsel for the writ petitioner is

overruled.

In order to examine the legal issues which have been so

referred to the present Larger Bench, it would be worthwhile to

refer to the statutory amendments which have taken place in

the relevant provision applicable in the field.

The U.P. Act No. 5 of 1982 referred to as the 'Act, 1982',

as was originally passed by the State Legislature, under

Section 10 provided for the procedure of selection of a teacher

specified in the Schedule and required the notification of the

vacancies to the Selection Commission by the Management in

such manner through such officer/authority as may be

prescribed, in respect of teachers not included in the Schedule,

the same procedure for determination of the vacancies was to

apply except that intimation was to be sent to the Selection

18

Board (See Section 15 of Act, 1982).

It may be recorded that the original Act did not define the

term “year of recruitment”. The term “year of recruitment” came

be defined for the first time under the U.P. Secondary

Education Commission Rules, 1983 i.e. the Rules framed in

exercise of powers under Section 35 of the Act, 1982. Rule 2 (i)

of Rules, 1983 reads as follows:

“2.Definitions.----

….

(i)'year of recruitment' means a period of

twelve months commencing from July 1 of a

calender year.”

Rule 4 of Rules, 1983, which deals with the

determination/intimation of the vacancies, provided that the

determination of the vacancies shall be done by the

Management and communicated to the Commission in the pro

forma as mentioned in the Appendix 'A', which will include the

existing vacancies as well as those likely to fall vacant during

the year of recruitment. Rule 4 (2) required such statement of

vacancies to be submitted by 15

th

September of the year of

recruitment through Inspector and after verification to be

forwarded to the Deputy Director by 15

th

October with an

advance copy to the Commission. The Deputy Director in turn

was required to forward the same to the Commission by 15

th

November. Rule 4 (5) of Rules, 1983 contemplated that if any

vacancy occurs at any time during the session or after the

requisition has already been sent, the Management shall notify

the vacancy to the Inspector within 15 days of its occurrence

and the Deputy Director was to deal with the same within 10

days of the receipt thereafter.

The Commission was conferred powers to require the

Inspector to notify the vacancies, where the Management has

19

failed to do so.

So far as appointment of a teacher by promotion is

concerned, Rule 9 of Rules, 1983 provided as under:

“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

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 rendered 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'.

…......................”

Thus, it will be seen that under Rules of 1983 for being

eligible to be considered for promotion, a teacher was required

to have put in at least 5 years of continuous service in the

feeding cadre on the date of occurrence of the vacancy in the

grade concerned. Therefore, for the purposes of promotion,

what was relevant was the date of occurrence of vacancy and

fulfillment of five years of continuous service on that date along

with other minimum qualifications.

Act of 1982 was amended by U.P. Act No. 8 of 1991 i.e.

U.P. Secondary Education Services Commission and Selection

Boards (Amendment and Validation) Act, 1991. Provision for

appointment by way of transfer was introduced by way of

20

proviso to Section 16 of Act, 1982. Further amendments were

made by U.P. Act No. 26 of 1991, whereby Section 33-A was

added to the Act, 1982.

By means of U.P. Act No. 1 of 1993, comprehensive

amendments were introduced in the Act, 1982 and for the first

time 'year of recruitment' was defined by adding Section 2 (l) to

the Act, 1982, which reads as follows:

“2..........

(l) 'year of recruitment' means a period

of twelve months commencing from first day of

July of a calender year.”

Section 15 as introduced by U.P. Act No. 1 of 1993 read

as follows:

“15. Procedure for selection of teachers---(1) For

the purposes of making appointment of a teacher,

the Management shall determine the number of

vacancies existing or likely to fall vacant during

the year of recruitment and in the case of any

post, other than the post of head of institution,

also the number of vacancies to be reserved for

the candidate belonging to the Scheduled Castes,

Scheduled Tribes and other categories of persons

in accordance with the rules or orders issued by

the Government in this behalf in regard to the

institution and notify the vacancies to the Board

in such manner and through such officer or

authority as may be prescribed.

(2)The procedure of selection of candidates for

appointment to the post of such teachers shall

be such as may be prescribed :

Provided that the Board shall, with a view to

inviting talented persons, give wide publicity in the

State to the vacancies notified under sub-section

(1). ”

As a consequence to the amendments under Act No. 1 of

1993, Uttar Pradesh Secondary Education Services

Commission Rules, 1995 (hereinafter referred to as the Rules,

21

1995) were published under notification dated 8

th

May, 1995.

Rules, 10, 11 and 14 of the Rules, 1995 relevant for our

purpose read as follows:

“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

recruitment by promotion, the posts may be

filled by direct recruitment :

Provided further that if in calculating respective

percentage 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.

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"

22

by the Management to tine 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

subject-wise in respect of the vacancies of lecturers

grade, and group-wise 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 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

23

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.

….

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, 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

24

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 the

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

authorisation under its resolution issue the

appointment in the pro forma given in Appendix 'E'

to such candidate.”

Amendments were introduced in Act, 1982 vide U.P. Act

No. 15 of 1995, which was notified in the official gazette on 8

th

August, 1995. Section 10 of the Act provided for determination

of the vacancies existing or likely to fall vacant during the year

of recruitment to be notified to the Commission in such manner

and through such officer or authority as may be prescribed.

It is needless to emphasize that since Rules, 1995 were

in existence, which took care of the determination etc. of the

vacancies, no amendments were made in the Rules

subsequent to enforcement of Act, 1995, at least none has

been brought to our notice.

Further amendments were made in the Act, 1982 by

means of U.P. Act No. 25 of 1998. By this amending Act, with

the substitution of Chapter II changes were introduced in the

definition Clause under Section 2 and Sections 3 to 11 of Act,

1982 as well as Chapter III Section 12, Section 16 and Section

18 were amended. Sections 33-C and 33-D were introduced.

Corresponding amendments were also introduced by

25

framing and notifying the U.P. Secondary Education Services

Selection Board Rules, 1998 (hereinafter referred to as the

“Rules, 1998”).

Rules of 1998 as far as relevant for our all purposes are

Rules, 10, 11 and 14, which are being quoted herein 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 for lecturer's

grade

50 per cent by direct

recruitment:

(ii) 50 per cent by promotion

from amongst substantively

appointed teachers of the

trained graduates grade.

(c)Teachers of trained

graduates grade

(i) 100 per cent by direct

recruitment except the

category of institutions

mentioned below in 2(ii);

(ii) Those Intermediate

colleges and High Schools in

which teachers of attached

primary section are getting

salary under the provisions

of U.P. High Schools and

Intermediate Colleges

(Payment of Salaries of

Teachers and other

Employees) Act, 1971, 75

per cent posts shall be filed

by direct recruitment and the

remaining 25 per cent posts

shall be filled by promotion

from amongst those trained

graduate teachers of

attached primary section

who have completed 5 years

of satisfactory service.

26

Provided that if any year of recruitment suitable eligible

candidates are not available for 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.

11. Determination and notification of vacancies.--(1)

For the purposes of direct recruitment to the post of teacher,

the management shall determine the number of vacancies in

accordance with sub-section (1) of Section 10 and notify the

vacancies through the Inspector, in the Board in the manner

hereinafter provided.

(2)(a) The statement of vacancies for each category of

posts to be filled in by direct recruitment including the

vacancies that are likely to arise due to retirement on the last

day of the year of recruitment, shall be sent in quadruplicate,

in the proforma 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

subject-wise in respect of the vacancies of lecturer grade, and

group-wise in respect of vacancies of trained graduates grade.

The consolidated statement so prepared shall, along with the

copies of statement received from the Management, be sent by

the Inspector to the Board by July 31, with a copy thereof to the

Joint 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 Board in respect of any

particular year of recruitment:

Provided further that in respect of the vacancies existing

on the date of the commencement of these rules as well as the

vacancies that are likely to arise on June 30,1998, the

Management shall, unless some other dates are fixed under

the preceding proviso, send the statement of vacancies by July

20, 1998 to the Inspector and Inspector shall send the

consolidated statement in accordance with this sub-rule to the

Board by July 25, 1998.

Explanation:- For the purposes of this sub-rule, the word

group-wise in respect of the trained graduate's grade means in

accordance with the following groups, namely.

27

(b) With regard to the post of Principal or Headmaster,

the Management shall also forward the names of two senior-

most teachers, along with copies of their service records

(including character rolls) and such other records or particulars

as the Board may require from time to time.

Explanation-For the purpose of this sub-rule 'senior-most

teachers' mean the senior-most teachers in the post of the

highest grade in the institution, irrespective of total service put

in the institution.

(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

to 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 Board.

(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 10 and notify

them to the Board in the manner and by the date referred to in

the said sub-rule. The vacancies notified to the board under the

sub-rule shall be deemed to be notified by the Management of

such institution"

…..................

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.

(2) The criterion for promotion shall be seniority subject to

the rejection of unfit.

(3) The Management shall prepare a list 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

28

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 such

candidate."

Since the intimation of the vacancies for direct

recruitment under Rule 11 (2) of Rules, 1998 and details for

promotion under Rule 14 of Rules, 1998 are to be provided by

the Management in Appendix “A” to Rules, 1998, it is

worthwhile to reproduce Appendix “A”, which reads as follows:

“APPENDIX “A”

[See Rules 11 (2) and 14 (3)]

Requisition Form for the Recruitment of Candidates for

Appointment

to the post of Teacher/Principal/Headmaster

(To be sent in quadruplicate)

1.(i)Name of the Institution...............................

(ii) Place.....................

(iii) District......................

(iv) Number of Students........ Class............... Section

…...No ….........

(v) Names of Subjects; High

School/Intermediate....................

(vi) Number of Teachers …..........................................

2. (i) Name(s) of the post(s) to which selection is to be

made

(ii) Number of posts …...........................

(iii) Qualification for the post(s)..........................

29

(iv) Pay scale of the post...................................

3. Where the post for which selection to be made is of

Lecturer Trained Graduate 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.

4. Number of posts, if any, reserved for—

(a) Scheduled Castes.

(b) Scheduled Tribes.

(c) Other Backward Classes of citizens.

5. Names of all candidates eligible for promotion, their

qualification and length of service from date of regular

appointment in the grade from which promotion is to be

made.

6. Any other information, that the Board may desire to have

certified that the above information is correctly recorded and

verified from the relevant documents.

*This information shall be given in case of promotion and

required under sub-rule (3) of Rule 14.

Manager

Verified and forwarded to the Secretary, Uttar Pradesh

Secondary Education Services Selection Board, Allahabad (in

case of appointment by direct recruitment) and to Joint Director

in case of appointment by promotion.

District Inspector of Schools”

It is also worthwhile to record that the C.T. Grade was

declared a dying cadre under the Government Order dated 11

th

August, 1989. The Government Order provides that on

substantive vacancies being caused in C.T. Grade subsequent

to 11

th

August, 1989, the same shall be deemed to be

converted into L.T. Grade. Section 33-D which was added to

the Act, 1982 vide U.P. Act No. 25 of 1998 provides that all

those who have completed ten years of continuous service in

C.T. Grade would be deemed to be teachers in L.T. grade. For

ready reference Section 33-D of Rules, 1998 is being quoted

herein below:

30

"33 D. Special provision for certificate of

Teaching grade teachers.--Every teacher in the

Certificate of Teaching grade, who is a trained

graduate and,

(a) has completed ten years continuous

satisfactory service in the said grade on or before

January 1, 1986 shall, with effect from January 1,

1986 ; or

(b) completes the said service of ten years

after January 1, 1986 shall with effect from the

date of completion of the said service of ten

years ; be deemed to have been appointed in the

Trained Graduate Grade."

The amendments, which had been made in the Act, 1982

and the Rules from time to time had following effect:

Under Section 10 of the Parent Act, the Management

had to notify the vacancies to the Commission for making

appointment of teachers specified in Schedule while in respect

of teachers other than those specified in Schedule, the

Management had to notify the vacancies to the Selection Board

as is clear from Section 15 of the Parent Act.

For the first time under the U.P. Act 1 of 1993 the concept

of determination of vacancies by the Management of the

institution, was provided for, with a direction that the vacancies

likely to fall vacant during year of recruitment shall be included

in such determination.

This procedure continued under U.P. Act No. 15 of 1995,

except that under amended Section 10, the provision for

intimation of the vacancies of teachers not mentioned in

Schedule of Act, 1982 to the Board was done away with, as

C.T. Cadre had been declared to be a dying cadre.

Section 10 as amended by U.P. Act No. 1998 required

31

determination of vacancies but restricted such determination to

be in respect of the post to be filled by direct recruitment, while

Section 12 provided for constitution of Selection Committee for

each region for promotion.

Percentage of posts of Lecturers' grade and L.T. grade to

be filled by direct recruitment and by promotion has been

provided under Rule 10 of Rules, 1998, referred to herein

above. The power was given to the management to determine

the number of vacancies existing or likely to fall vacant during

the year of recruitment. Thus the initial task of determining the

vacancy is on the management by identifying the number of

vacancies that are existing or are likely to fall vacant, on

account of retirement etc. during the year of recruitment.

The procedure to ascertain the quota in which a vacancy

would fall is regulated by the Act and Rules, inasmuch as, this

would involve the nature of the vacancy and the post that was

held by the earlier incumbent. This would mean as to what

subject was taught by the earlier incumbent and the current

requirement of the institution. Rule 10 of the 1998 Rules clearly

provides for the appointment in the Lecturers Grade 50% by

direct recruitment and 50% by promotion from amongst

substantively appointed teachers of the Trained Graduate

Grade (L.T. Grade).

The vacancies of Trained Graduate Grade (L.T. Grade)

are to be filled by direct recruitment except for 25% by

promotion as per Rule 10(c)(ii) of 1998 Rules.

After the vacancies for direct recruitment are determined,

the management is also obliged to calculate the applicability of

reservation for the candidates belonging to the reserved

category for the purpose of giving benefit to eligible candidates.

32

The aforesaid calculation therefore has to be in accordance

with the rules provided for reservation namely the Uttar

Pradesh Public Services (Reservation for Scheduled Castes,

Scheduled Tribes and Other Backward Classes) Act, 1994 Act,

as applicable in the State of U.P.

This determination by the management in respect of

direct recruitment is to be made under Rule 11 of the 1998

Rules quoted herein above. The statement of the vacancies so

determined by the management has to be sent to the District

Inspector of Schools by 15th of July of the year of recruitment

in proforma given in Appendix “A”, and the Inspector, after

verifying it from the records of his office, has to prepare a

consolidated statement of the vacancies of all the institutions in

the district subject-wise and group-wise in respect of Trained

Graduate Grade posts. The statement so prepared by the

Inspector must be sent by 31st of July of the year of recruitment

with a copy thereof to the Joint Director of Education. The State

Government has however, been given the power to fix other

dates for notification in respect of any particular year of

recruitment.

On this exercise being completed by 31st of July, if any

other vacancy occurs thereafter, for example by death or

resignation then the management within 15 days of its

occurrence, shall notify the said vacancy to the District

Inspector of Schools. The Inspector within 10 days of receipt of

such information send it to the U.P. Secondary Education

Services Selection Board for being notified. It is this procedure

which has to be followed for the notification/intimation of the

vacancies to the Board as per Section 10 of the 1982 Act read

with Rule 11 of the 1998 Rules.

The provisions of Sub-Rule (4) of Rule 11 also provide for

33

the alternative arrangement where there is a failure on the part

of the management to notify the vacancies by the date fixed.

The said rule authorizes the District Inspector of Schools to

determine the vacancies on the basis of the records that are

available in his office and notify it to the Board which shall be

deemed to be notified by the management of such institution.

It will be seen that determination of number of vacancies

is the responsibility of the Management at the first instance and

such determination has to be for the “year of recruitment” under

Rule 11(2) of Rules, 1998.

Rule 14 of Rules, 1998 which deals with the procedure of

recruitment by promotion does not require any fresh

determination of vacancies for the purposes of promotion, it

only requires that where the vacancies are required to be filled

by direct recruitment, details of teachers working in the feeding

cadre, who have completed five years of continuous service on

the “first day of year recruitment” and is possessed of the

requisite qualifications on that date be provided in proforma

given in Appendix 'A' to the Joint Director of Education.

On a simple reading of the aforesaid provisions, it will be

seen that the words “year of recruitment” have been used in (a)

first proviso to Rule 10 of Rules, 1998 relevant part whereof

reads as “if in any year of recruitment”, (b) in Rule 11 (2)

relevant part whereof reads as “on the last day of year of

recruitment”, (c) in 11 (4) relevant part whereof reads as “for

any year of recruitment” and (d) in Rule 14 (1) relevant part

whereof reads as “on the first day of the year of recruitment”.

The issue with regard to the determination of vacancies

under Rules 10 and 11 of Rules, 1998 has been subject matter

of consideration before the Full Bench of this Court in the case

34

of Prashant Kumar Katiyar (Supra) and in paragraph nos. 36

to 40 it has been held as follows:

“36.It is this entire exercise with regard to

determination that has to be performed

mandatorily by the management and the

District Inspector of Schools, to enable the

Board to advertise the vacancy as notified

which shall be done through wide publicity as

provided for under Section 10(2) of the 1982 Act

read with Rule 12(1) as quoted herein above.

37.The controversy raised in this

reference is vis a vis the impact of the action taken

by the management and the District Inspector of

Schools for determination of the vacancies and the

consequential advertisement made by the Board

and any attempt to alter the same by adopting the

exceptional modes of appointment.

38.In our opinion if the management

has determined the vacancy or the District

Inspector of Schools has done it as per Rule 11(4)

then in that event the alteration of such

determination and intimation is controlled only to

the extent as provided by sub-rule (3) of Rule 11

which authorises the management and the

Inspector to notify any fresh vacancy that may

have occurred after such notification. The

management or the District Inspector of Schools

therefore has not been empowered under the rules

to reverse the determination and it can only add to

it, subject to the contingency as contemplated

under sub-rule (3) of Rule 11. This however does

not take away the power to correct any

arithmetical or calculative errors that may have

crept into such determination.

39.To our mind, the function of the

management and the District Inspector of Schools,

therefore, has to follow this procedure and it is trite

law that if a statute requires a thing to be done in a

particular manner then it should be done in that

manner alone and not otherwise. The procedure

under the Act and Rules is mandatory and it

has to be done in that manner alone. Reference

be had to Para 20 and 23 of the division bench

judgment in the case of Km. Poonam Vs. State of

35

U.P. 2008 (3) AWC Pg. 2852 and to Para 24 of the

decision in the case of U.P. Secondary Education

Service Selection Board Vs. State of U.P. 2011 (3)

ADJ Pg. 340. The rules have been framed

consciously by making a provision of limited

alteration in the determination by adding to the

vacancies on account of any fresh occurrence

during the year of recruitment itself. Thus

impliedly no power has been conferred for altering

the vacancies already determined and intimated to

the Board for the purpose of notification under the

Act and Rules. The requisition to fill up the

vacancies after having sent to the Board

therefore becomes unalterable as the Board

proceeds with the advertisement under Rule 12

by publishing the vacancy in accordance with

reservation rules and in accordance with the

subject-wise and group-wise vacancies against

which appointments are to be made inviting

applications from candidates giving their

preference of the institution which choice has to

be indicated by the candidate. At this stage, to

upset the procedure after advertisement by giving

any further leverage would be to disturb the entire

process of selection and if such a concession is

given, the management can indulge into

motivated manipulations which are not

uncommon and give rise to uncalled for

controversies ending up in litigation.

40.We would also like to put a note of

caution for the District Inspector of Schools

while performing his duty of verification of the

determination of vacancies. There can be

cases where the management deliberately

modifies a requirement in the name of

extending benefit to some candidate/teacher

who may be desirous of seeking promotion but

otherwise not eligible within the year of

recruitment. The management can withhold

such information and it is at this stage that the

District Inspector of Schools has to exercise

his powers under sub-rule (4). The management

at times may not cooperate with the District

Inspector of Schools and therefore the District

Inspector of Schools has to determine the vacancy

as per the records available in his office and

36

inform the Board. The responsibility therefore rests

on the District Inspector of Schools to

undertake this exercise by putting the

management to clear notice during the year of

recruitment itself. The District Inspector of

Schools on coming to know of any additional

vacancy if any that arises or the management

having withheld such information is obliged to

take action forthwith and disallow the

management from taking any undue advantage

in such situations. The vacancy that has occurred

during the year of recruitment has to be

mandatorily informed as noted herein above as

no selection can be held except through the

Board.”

Again, in paragraph 48 it has been held as under:

“There is no difficulty with regard to the

calculation of a post to be filled up by

absorption or by promotion which can also be

done by the management before determining

the vacancies in the year of recruitment. The

calculation has to be made for the year of

recruitment and sent by 31st of July. Thus any

claim thereafter having arisen will have to wait

for the vacancy to occur thereafter. The

calculation is not in respect of all possible

claims that may arise in future. This aspect is

clearly governed by the expression "year of

recruitment" as explained hereinabove and by

the calendar fixed under the rules. Accordingly

the same reasoning as in the case of transfers

would apply here and neither the management

nor the District Inspector of Schools can be

permitted to alter the process of

recruitment/appointment by taking recourse to

the provisos under Section 16 after the

vacancies have been determined and notified

to the Board under the provisions referred to

hereina bove.”

The relevant question referred and which has been

answered by the Full Bench in the case of Prashant Kumar

Katiyar (Supra) as contained in paragraph-93 (d) reads as

37

follows:

“93.In view of what has been said above, our

answer to the questions (a) and (c) referred to us

is as follows:-

…............

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 judgments to

that extent are affirmed .”

It is clear from simple reading of the three provisions,

namely, Rule 10, Rule 11 and Rule 14 of Rules, 1998 that the

rules contemplate determination of the vacancies for direct

recruitment within the quota prescribed for the post of Lecturer

and L.T. grade as per Rule 10 of Rules, 1998. As a logical

consequence of such determination of the posts for direct

recruitment, the remaining vacancies, if any, would fall within

the promotion quota, inasmuch as Rule 10 of Rules, 1998

contemplates only two sources of recruitment for the post of

Lecturer and L.T. grade teacher, namely, direct recruitment and

promotion. Therefore, determination of the vacancies within the

direct recruitment quota would necessarily entail that the

remaining posts are within the quota for other mode of

appointment i.e. promotion.

It is at this point of determination of posts for direct

recruitment that the proviso to Section 10 comes into play, all

the vacancies, which cannot be filled by way of promotion may

be filled by direct recruitment.

One of the cardinal principle of interpretation is that

where the draftsman uses the same word/phrase in similar

38

contexts, he must be presumed to intend it in each place to

bear the same meaning (Reference Chairman Indore Vikas

Pradhikaran versus Pure Industrial Coke and Chemicals

Ltd.; [(2007) 8 SCC 705 Pr. 70].

Relevant paragraph of the judgment of the Apex Court in

the case of Chairman Indore Vikash Pradhikaran (Supra)

reads as follows:

“76.It is also well-settled that in the absence of

any context indicating a contrary intention, the

same meaning would be attached to the word

used in the later as is given to them in the earlier

statute. It is trite that the words or expression

used in a statute before and after amendment

should be given the same meaning. It is a settled

law that when the legislature uses the same

words in a similar connection, it is to be

presumed that in the absence of any context

indicating a contrary intention, the same

meaning should attach to the words. [See

Lenhon v. Gobson & Howes Ltd., (1919) AC 709

at 711, Craies on Statute Law, Seventh Edition,

page 141 and G.P. Singh's Principles of Statutory

Interpretation, Tenth edition, page 278].”

The words are generally used in same sense throughout

in a Statute unless there is something repugnant in the context

(Reference Bhogi Lal Chunni Lal Pandya versus State of

Bombay; AIR 1959 SC 356).

Logically the same meaning is to be attached to the same

words/phrases throughout the Statute unless of course

something repugnant is found in the context which requires for

taking a different view.

39

We may record that absolutely nothing could be shown to

the Court by the learned counsel for the respondent-petitioner

to suggest any repugnancy in reading phrase “year of

recruitment” at all the four places i.e. in Rule-10, Rule-11 (2),

Rule-11 (4) and Rule-14 of Rules, 1998 in the same manner.

In our opinion, “the last day of year of recuritment” as

provided for under Rule 11 (2) of Rules, 1998 would mean “the

last day of 12 calender month” starting from “1

st

July” and

ending on “30

th

June” following which would be 30

th

June, like-

wise “first day of year of recruitment” as provided for under

Rule 14 would mean “the first day” i.e. of the 12 calender

months starting from first July and ending on 30

th

June

following i.e. 1

st

July.

The provisions cannot be read to mean that while

determining the vacancies for direct recruitment under Rule 11

(2), year of recruitment would be 12 calender months starting

from 1

st

July of a different calender year, while under Rule 14 of

Rules, 1998 the phrase “year of recruitment” would mean a

period of 12 calender months starting from 1

st

of July of a

different calender year. The provisions of Rules, 10, 11 and 14

of Rules, 1998 have to be read as a continuous chain of

different determinations/actions. The year of recruitment has to

be one and the same for the proviso to Rule 10, Rule 11 (2),

Rule 11(4) and Rule 14 (2) of Rules,1998 i.e. 12 calender

months starting from 1

st

of July of the same calender year.

Another important aspect of the matter which needs

mention is that in respect of the vacancies to be filled by direct

recruitment, intimation has to be forwarded to the Commission

in proforma given in Appendix 'A' while in respect of vacancies

to be filled by way of promotion, under Rule 12 information in

respect of teachers eligible for promotion has to be provided in

40

same proforma given in Appendix 'A' to the Joint Director of

Education.

Clause '3' of proforma in Appendix 'A' requires specially

the disclosure of the vacancies by the Management for direct

recruitment as well as of the vacancies for promotion. Proforma

in Appendix 'A' to be supplied by the Management in the matter

of direct recruitment under Rule 11 (2) (a) of Rules, 1998 has to

be pari materia to the information to be supplied in proforma in

Appendix 'A' to the Joint Director of Education under Rule 14

(2) of Rules, 1998 for promotion.

The proforma given in Appendix 'A' necessarily requires

disclosure of the fact as to what number of vacancies have

been determined by the Management to be filled by direct

recruitment and those to be filled by promotion. In our opinion,

there cannot be any variance in the proforma which has to be

supplied by the Management in respect of the vacancies

determined to be filled by direct recruitment under Rule 11 (2)

of Rules, 1998 and the details of the teachers, who are to be

considered for promotion in proforma given in Appendix 'A' to

the Joint Director of Education. Information in that regard has to

be common. Otherwise the same may lead to a precarious

situation, where the same vacancy may be notified to the Board

for direct recruitment as well as for promotion to the Joint

Director of Education or a vacancy being not notified either to

the Selection Board for direct recruitment or for promotion to

the Joint Director of Education.

Even otherwise, we are of the opinion that keeping of first

day of year of recruitment under Rule 12 fluid, to be determined

on the whims and discretion of the Management would lead to

nepotism and favoritism as has been highlighted by the Full

Bench of this Court in the case of Prashant Kumar Katiyar

41

(Supra), in paragraph 33 quoted above with which we

respectfully agree.

It is settled rule of statutory interpretation that anomalies,

injustice and absurdities have to be avoided while reading a

statutory provision.

Reference may also be had to the judgment of the Apex

Court in the case of Aswini Kumar Ghosh vs. Arabinda

Bose; 1953 SCR Page-1, where-under it has been held as

under:

“At times the intention of the legislature is

found to be clear but the un-skillfulness of the

draftsman in introducing certain words in the

statute results in apparent ineffectiveness of the

language and in such a situation, it is permissible

for the Court to read the statute so as to make it

effective.”

It is important to note the stand of the State Government,

as is reflected from the affidavit filed on 15

th

February, 2017 by

Principal Secretary, Secondary Education, Government of U. P.

at Lucknow. Along with affidavit, the Principal Secretary of the

State, has enclosed a letter of the Secretary, U.P. Secondary

Education Services Selection Board, Allahabad dated 13

th

December, 1999, which reads as under:

“izs"kd] lsok es]

lfpo] leLr ftyk fo|ky; fujh{kd

ek0 f'k{kk lsok p;u mRrj izns'k

cksMZ bykgkcknA m0 iz0

i=kad& ek0 f'k0 p0 cks0@vf/k0@1828&1949@99&2000

fnukWd 13 fnlEcj 1999

fo"k;& lh/kh HkrhZ ,oa inksUufr ds lanHkZ es HkrhZ ds fo"; dh

fLFkfr Li"V djus ds lEcU/k esA

mi;qZDr fo"k;d ds lUnHkZ es eq>s ;g

42

dgus dk funsZ'k gqvk gS fd mRrj izns'k

ek/;fed f'k{kk lsok p;u cksMZ fu;ekoyh 1998

ds fu;e 10 es mfYyf[kr gS fd HkrhZ ds fdlh

o"kZ es inksUufr }kjk HkrhZ ds fy, mi;qDr ik=

vH;FkhZ miyC/k u gks rks inkas dks lh/kh HkrhZ }

kjk Hkjk tk ldrk gSA

lh/kh HkrhZ ds fy, fu;ekoyh ds fu;e 11 es

vo/kkj.k ,oa vf/klwfpr fd;s tkus ds O;oLFkk gSA blh ds

mifu;e ¼1½ es izcU/kd }kjk fjfDr;kW fujh{kd ds ek/;e ls

cksMZ dks vf/klwfpr dh tkuh gSA fu;ekoyh ds fu;e 11 ds

mifu;e ¼2½ ¼d½ es lh/kh HkrhZ }kjk Hkjs tkus okys izR;sd

Js.kh ds in ds fy, HkrhZ ds o"kZ ds vfUre fnukWd dks lsok

fuc`fRr gksus okyh lEHkkfor C;fDr;ksa dks lfEefyr djus ds

fy, fjfDr;ksa dks fooj.k ifjf'k"V ^d^ es fn;s x;s izi= es

HkrhZ ds o"kZ dh 15 tqykbZ rd fujh{kd dks Hkstus rFkk

fujh{kd }kjk bls 31 tqykbZ rd p;u cksMZ dks miyC/k

djkus ds funsZ'k gSaA

mDr fu;e ls Li"V gS fd HkrhZ ds o"kZ ds vfUre

fnukWd vFkkZr 30 twu 2000 dks lsok fuc`fRr ds

dkj.k lEHkkfor fjfDr;ksa dks lfEefyr djrs gq,

HkrhZ ds o"kZ dh 15 tqykbZ vFkkZr 15 tqykbZ

1999 rd izcU/krU= fujh{kd dks 4 izfr;ksa es

vf/k;kpu izsf"kr djsxk vkSj 31 tqykbZ 1999 rd

fujh{kd p;u cksMZ dks ;Fkk fufnZ"V O;oLFkk ds vuqlkj

HkstsxkA

mDr fLFkfr ls ;g Li"V gS fd tks fjfDr 30 twu

2000 dks Hkh gks jgh gS mldh HkrhZ dk o"kZ 1

tqykbZ 1999 ls ysdj 30 twu 2000 rd dk ekuk

x;k gSA fu;ekoyh ds fu;e 10 ds ijUrqd es

lh/kh HkrhZ ds vf/k;kpu Hkstus ds iwoZ ;g Hkh

ns[kuk gS fd inksUufr ds fy, 50 izfr'kr dksVs

ds vUrxZr ik= vH;FkhZ miyC/k gS ;k ughA ;fn

ugh rks lh/kh HkrhZ ls Hkjus dk vf/k;kpu p;u

cksMZ dks Hkstuk gSA

m0 iz0 ek/;fed f'k{kk lsok vk;ksx vf/kfu;e

43

1982 dks tks v/;kns'k la0 31 fnukWd 28-9-1994 rFkk

v/;kns'k la[;k 13 lu~ 1995 }kjk la'kksf/kr fd;k x;k

fd /kkjk 2 es HkrhZ dh o"kZ dh ifjHkk"kk fuEuor vafdr gSA

^^HkrhZ dk o"kZ dk rkRi;Z fdlh dysUMj o"kZ dh tqykbZ

ds izFke fnol ls izkjEHk gksus okys 12 ekl dh vof/k ls gSA

Li"Vr% izR;sd o"kZ HkrhZ dk o"kZ 1 tqykbZ dks

izkjEHk gksdj 30 twu rd gksxkA

inksUufr ds fy, vgZrk Li"V djrs gq, mRrj izns'k

ek/;fed f'k{kk lsok p;u cksMZ fu;ekoyh 1998 ds fu;e 14

¼1½ ds vUrxZr inksUufr }kjk HkrhZ gsrq mu C;fDr;ksa dks tks

izf'kf{kr Lukrd Js.kh ;k v/;kid izek.k&i= Js.kh] ;fn

dksbZ gks tks inksUufr ds fy, fofgr vgZrk;s j[krs gks vkSj

,slh HkrhZ ds o"kZ ds izFke fnukWd dks bl :i es

5 o"kZ dh fujUrj fu;fer lsok dh gks ;FkkfLFkfr

izoDrk Js.kh ;k izf'kf{kr Lukrd Js.kh dh inksUufr ds fy,

fopkj fd;s tkus dh O;oLFkk gSA

mDr fLFkfr es ;g Li"V gS fd&

¼1½ fo|ky; es ekSfyd fjfDr gksuh pkfg, vkSj og

inksUufr dksVs dh gksuh pkfg;sA

¼2½ izf'kf{kr Lukrd Js.kh ;k v?;kid izek.k i= Js.kh

es dk;Zjr gks rFkk in ds fy, fofgr 'kSf{kd ,oa izf'k{k.k

vgZrk ds lkFk&lkFk mu C;fDr;ksa dh HkrhZ ds o"kZ ds

izFke fnukad dks bl :i es 5 o"kZ dh fujUrj fu;fer

lsok Hkh gksuh pkfg,A inksUufr gsrq mu ij fopkj fd;k

tk;sxk vU;Fkk ughA

bl fu;ekoyh ds fu;e 14 ds mifu;e ¼1½ ds rgr

HkrhZ ds o"kZ ds izFke fnukWd dks 5 o"kZ dh fujUrj

fu;fer lsok vfuok;Z gSA lh/kh HkrhZ ls vf/k;kpu Hkstus ds

le; inksUufr gsrq ik= vH;FkhZ ds miyC/krk ds lEcU/k

es ;g ns[kuk vko';d gksxk fd tks fofgr vgZrk j[krs gks

mu lHkh v/;kidks dh HkrhZ ds o"kZ ds izFke fnukWd 1 tqykbZ

dks 5 o"kZ dh fu;fer lsok iw.kZ gks x;h gksA vFkkZr ;fn

dksbZ in 30 twu 2000 dks fjDr gksxk vkSj bl

ij inksUufr ds fy, ik= vH;FkhZ rHkh vgZ gksxsa

44

tcfd mudh 1 tqykbZ 1999 dks 5 o"kZ dh

fujUrj fu;fer lsok iw.kZ gks x;h gksA bl izdkj

izR;sd o"kZ dh 1 tqykbZ ls ysdj 30 twu rd dh vof/k es

tks Hkh dksbZ fjfDr gqbZ gS ;k gksxh mlds fy, inksUufr ds

fy, ml o"kZ dh 1 tqykbZ dks 5 o"kZ dh fujUrj fu;fer

lsok vko';d gSA ;fn ,sls ik= vH;FkhZ ugh gS rks

fjfDr;ks dks lh/kh HkrhZ ls Hkjus dk vf/k;kpu

izsf"kr fd;k tkuk pkfg;sA

d`i;k mDr ds ifjizs{; es fjfDr;ksa dk vo/kkj.k dj

tks fjfDr;kW lh/kh HkrhZ ls Hkjh tkuh gks mudk vf/k;kpu

p;u cksMZ dks fofgr O;oLFkk ds vuqlkj Hkstus dh O;oLFkk

lqfuf'pr dh tk;sA

Hkonh;

vo/k ujs'k 'kekZ

lfpo”

It has been explained that the year of recruitment has to

be the year of determination of the vacancies under Rule 10

read with Rule 11 of Rules, 1998 and first day of the year of

recruitment as provided for under Rule 12 would be 1

st

July of

the year referable to Rule 10 of Rules, 1998.

Judgments cited by Sri Anoop Trivedi, learned counsel

for the respondent-petitioner in the matter of interpretation of

statute do not lay down anything contrary to what has been

noticed herein above by us.

The legal principles cited above by Sri Anoop Trivedi,

learned counsel for the respondent-petitioner at bar are

unquestionable and are well established.

Now coming to the judgment of the Full Bench in the case

of Raeesul Hasan (Supra), it is worthwhile to mention that the

earlier Full Bench judgment of this Court in the case of

45

Prashant Kumar Katiyar (Supra) has gone unnoticed. It has

completely escaped the attention of the Full Bench in the case

of Raeesul Hasan (Supra). Because of this, the law laid down

by the Full Bench in the case of Prashant Kumar Katiyar

(Supra) to the effect that the exercise for determination of the

vacancies has to be performed mandatorily by the

Management at the first instance and, in case of failure, by the

District Inspector of Schools, as per the time table fixed under

Rule 11 of Rules, 1983 has gone unnoticed. The reasons

recorded in paragraph-40 by the Full Bench in the case of

Prashant Kumar Katiyar (Supra), for leaving the “year of

recruitment” for promotion at the discretion of the Management

are that it may permit the management to take undue

advantage and show favoritism to chosen few. The Full Bench

in the case of Prashant Kumar Katiyar (Supra) has further

observed that if the law requires something to be done in a

particular manner, then it has to be done in that manner alone

and not otherwise and in paragraph-29 has laid down that the

procedure under the Act and Rules is mandatory and it has to

be performed in that manner alone.

Another important aspect of the matter which has

escaped the attention of the Full Bench in the case of Raeesul

Hasan (Supra) is the intimation of the vacancies in proforma in

Appendix 'A' for the purposes of direct recruitment to the

Selection Board as well as intimation of the names of the

persons to be appointed by way of promotion in the same

proforma given in Appendix 'A' to the Joint Director of

Education in Clause-3 of Appendix 'A' requires disclosure of

vacancies determined for direct recruitment and promotion

both.

We are also of the opinion that the view of the Full Bench

46

in the case of Raeesul Hasan (Supra), while holding that the

purpose for deletion of the words “by promotion” in Rule 11 of

Rules 1998 in juxtaposition with Rule 11 (2) of Rules, 1995, is

that no time limit has been fixed in the matter of intimation of

vacancies for which promotion is to be made, is not correct.

Rule 10 provides for two sources of appointment only i.e by

direct recruitment and promotion only, determination of number

of vacancies for direct recruitment in a recruitment year would

necessarily entail the determination of the vacancies which

would fall for promotion in the same recruitment year. Once the

vacancies for direct recruitment are determined, remaining

vacancies, if any, would fall within the promotion quota.

It has escaped the attention of Full Bench that there had

been a departure in the matter of procedure to be adopted for

direct recruitment/promotion as per Rules of 1995, vis-a-vis, the

procedure for promotion under Rule 12 of Rules, 1998. This

change was necessitated because of amendments made in

Section 10 and addition of Chapter III which includes Section

12 by the Act, 1998. Under Rule 11 (2) of Rules, 1998

intimation of the vacancies is to be ultimately communicated to

the Selection Board for advertisement for direct recruitment in

the proforma given in Appendix 'A' while list of teachers eligible

for promotion is to be communicated to the Joint Director of

Education in the proforma given in Appendix 'A'. It is for this

reason that the determination and intimation of vacancies for

promotion quota to the Selection Board, as provided under

Rule 11 (2) of Rules, 1995 was done away. The authority for

promotion has been identified as Regional Selection

Committee of which the Joint Director of Education is the

Chairman in place of Selection Board as provided earlier.

So far as the judgment of the Apex Court in the case of

47

Balbir Singh & Another versus U.P. Secondary Education

Services Selection Board, Allahabad & Others reported in

2008 (3) ESC 409 (SC) relied upon by the Full Bench in the

case of Raeesul Hasan (Supra) is concerned, it may be

noticed that in the judgment of the High Court in the case of

Anand Narain Singh versus Uttar Pradesh Secondary

Education Service, Selection Board reported in 2003 (2)

UPLBEC 899, giving rise to the appeal before the Apex Court

itself in the case of Balbir Singh (Supra), there is a specific

recital in paragraph nos. 64 and 129 (iv) to the following effect:

“64. The facts here are different than the two

cases previously mentioned in paragraph 58.

These cases are of direct appointment unlike

cases cited by the petitioners (paragraph 58)

on this point. Those cases related to

promotion. The vacancies in case of direct

appointments are notified by an advertisement and

all the vacancies as mentioned in the

advertisement have to be filled up. They are not

required to be filled up year-wise: at least there is

nothing in the Act or in the Rules to warrant this.

…......

129. My conclusions and directions are as follows:

…...........

(iv) In the present case, the appointments are

being made by direct recruitment and not by

promotion:

Vacancies need not be marked separately for any

particular recruitment year;

They could be clubbed together.

While filling these vacancies, the law as

applicable on the occurrence of vacancy need not

be applied.

…............”

It is, thus, clear that the Apex Court was considering the

matter pertaining to the appointment by direct recruitment only

48

and was not considering any issue with regard to the posts

which are to be filled by promotion.

It will be seen that the observations made by the Apex

Court in paragraph 30 to the effect that neither Section 10 nor

11 of the Principal Act nor Rules, 1998 mandate that selection

or determination of vacancies must be year wise and therefore,

all the vacancies which are “existing or which are likely to fall

vacant during the year of recruitment” can be clubbed together

for being filled by the Selection Board is in the background that

the number of vacancies received by the Selection Board from

the various institutions could be advertised together. The issue

of actual determination of the vacancies institution-wise for

direct recruitment and resultant by way of promotion in the year

year of recruitment was not subject matter of consideration

before the Apex Court in the case of Balbir Singh (Supra).

The judgment of the Apex Court in the case of Balbir

Singh (Supra) has to be read in the background, it was dealing

with the issue of clubbing of vacancies for direct recruitment of

different years by the Selection Board while making the

advertisement under challenge and nothing beyond it.

It has been repeatedly held by the Apex Court that a little

difference in the facts or additional facts may make a lot of

difference in the precedential value of a judgment [Reference

Bhavnagar University vs. Palitana Sugar Mills (P) Ltd. &

Ors. reported in 2003 (2) SCC, 111, which has been followed in

the case of Rajveer Singh vs. Chaudhary Devi Lal, reported

in AIR 2008 SCW 5817].

The Full Bench of this Court in the case of Raeesul

Hasan (Supra) has also failed to take notice of the circular

issued by the Secretary, U.P. Government at Lucknow dated

49

23

rd

January, 1998, which has been quoted herein above,

which specifically clarified the position with regard to the “first

day of year of recruitment” as provided for under Rule 14 of

Rules, 1998. The said circular was very much on record of the

connected writ petitions giving rise to the present reference in

the case of Raeesul Hasan (Supra).

From the amendments which have been effected, it will

be seen that earlier an incumbent was required to possess

prescribed minimum qualification on the date of occurrence of

vacancy. This requirement was amended in the year 1995 by

requiring the candidate to possess the qualification and

requisite experience on the first date of the year of recruitment

which provision has been maintained under Rules, 1998. This

became necessary as under Act, 1995, a provision for

determination of the vacancies by the Management was

introduced. This determination had to be done in respect of the

vacancies pertaining to the year of recruitment both under

Rules, 1995 and Rules, 1998 in a time bound manner at the

start of the year itself. Further proviso was added that any

vacancy which cannot be filled by promotion may be filled by

direct recruitment, which was not the position earlier.

In order to keep the determination of vacancies certain

specifically with reference to the posts which fall within the

promotion quota but could not be filled because of absence of

suitable candidate, it was decided that the date on which the

teacher of feeding cadre must possess the requisite

qualification must also be fixed well in advance i.e. a date prior

to the date on which the actual determination of the vacancies

for direct recruitment, which will include the vacancies within

promotion quota, which cannot be filled by promotion for want

of eligible candidate in the feeding cadre is made mandatorily

50

by the Management i.e. 15

th

July of the recruitment year. It is in this

background that Rule framing Authority decided to fix the first day of

year of recruitment as the crucial date for examining as to whether a

candidate within the feeding cadre is available for promotion or not,

inasmuch as in absence of any suitable candidate, the post has to

be requisitioned for direct recruitment.

It has to be kept in mind that the purpose for enactment of Act,

1982 was to ensure that suitable teacher becomes available in the

institution at the earliest so that the main objective of the institution

i.e. teaching does not suffer.

Even otherwise fixation of a particular date i.e. when a

candidate from feeding cadre is to be judged to be eligible or not

has to be fixed rather than being kept fluid at the whims and fancies

of the private Management.

We are, therefore, of the considered opinion that the Full

Bench in the case of Raeesul Hasan (Supra) does not lay down the

correct law.

For the aforesaid reasons, the answer to the questions as

referred is as under:

(a)The year of recruitment both for the determination of

vacancies for direct recruitment and for the purpose of Rule, 14 of

Rules, 1998 for determining the eligibility of the candidates for

promotion has to be one and the same. Full Bench judgment in

the case of Raeesul Hasan (Supra) does not lay down the correct

law

(b)With the determination of the vacancies for direct

recruitment, the number of posts within the promotion quota

stands determined and it is at this stage that the Committee

with reference to Rule 14 of Rules, 1998 has to decide as to

whether an eligible candidate for promotion within feeding

cadre is available or not. If the answer is in negative,

51

the vacancy has to be included within the quota for direct

recruitment.

(c)The Full Bench in the case of Prashant Kumar

Katiyar (Supra) has correctly held that the Management

cannot be provided leverage in the matter of determination of

the year of recruitment and in the matter of promotion, as it will

lead to nepotism and favoritism.

(d)Determination of the vacancies for direct

recruitment along with reservation to be applied has to be done

by the Management within the time frame fixed under Rule 11

(2) of Rules, 1998.

(e)So far as the post within the promotion quota is

concerned, the post remaining after determination of direct

recruitment quota would fall therein.

(Sunita Agarwal, J.) (Arun Tandon, J.) (V.K. Shukla,J.)

I agree. I agree.

(M.C. Tripathi,J.)

I agree.

Order Date :- 30.05.2017

Sushil/-

52

Court No. - 21

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

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.

For orders, see our order of date passed on the separate

sheets.

Order Date :- 30.05.2017

Sushil/-