Supreme Court of India
BALBIR KAUR & ANR.versusU.P. SECONDARY EDUCATION SERVICES SELECTION BOARD, ALLAHABAD & ORS.
- Citation
- 2008 INSC 691
- Decided
- 16 May 2008
- Disposal
- Appeal(s) allowed
- Bench
- K G BALAKRISHNAN
Holding
The ‘Note’ to sub‑rule (5) of Rule 12, 1998 Rules has overriding effect over Appendix A of the Intermediate Act, rendering the advertisements valid; Section 10 expressly excludes the principal post from reservation; region‑wise selection is permissible; the 6 August 1993 cut‑off is valid; and the language discrepancy caused no prejudice.
Summary
The Supreme Court examined the selection of principals for intermediate colleges under the U.P. Secondary Education Selection Board Act, 1982 and the 1998 Rules. The petitioners challenged the advertisements on six grounds, including the validity of counting lecturer or head‑master experience as qualifying experience, the absence of reservation for the principal post, region‑wise selection, the cut‑off date for regularising ad‑hoc principals, and discrepancies between Hindi and English versions of the notification. The Court held that the ‘Note’ appended to sub‑rule (5) of Rule 12 of the 1998 Rules overrides the experience requirement in Appendix A of the Intermediate Act, making the advertisements lawful; Section 10 of the Principal Act expressly excludes the principal post from the 1994 reservation Act; region‑wise selection does not violate Articles 14 and 16; the cut‑off date of 6 August 1993 is valid; and the language discrepancy caused no prejudice. Consequently, the Division Bench’s reversal of the Single Judge’s decision was set aside and the appeals were allowed.
Issues considered
- The effect of the ‘Note’ to sub‑rule (5) of Rule 12, 1998 Rules on the qualifying teaching‑experience requirement for the post of principal.
- Whether the advertisement prescribing four years of lecturer experience complies with the statutory qualifications.
- Whether Section 10 of the U.P. Secondary Education Services Selection Board Act, 1982 excludes reservation for the principal post under the U.P. Public Service (Reservation) Act, 1994.
- Whether region‑wise or district‑wise selection of principals violates Articles 14 and 16 of the Constitution.
- Whether the cut‑off date of 6 August 1993 for regularisation of ad‑hoc principals is arbitrary or discriminatory.
- Whether the discrepancy between Hindi and English versions of Appendix D on quality‑point calculation caused prejudice.
- Whether vacancies can be clubbed across the ‘year of recruitment’ as per Section 10 of the Principal Act and Rule 11 of the 1998 Rules.
Legislation cited
- Constitution of Indias. 14, s. 15, s. 16, s. 166, s. 348
- U.P. Intermediate Education Act, 1921
Subjects
principal appointmentteaching experiencestatutory interpretationreservationArticles 14,15,16regionwise selectionregularisation of ad‑hoc appointmentsU.P. Secondary Education Selection Board
Judgment
[2008] 9 S.C.R. 130
A BALBIR KAUR & ANR.
v.
U.P. SECONDARY EDUCATION SERVICES
SELECTION BOARD, ALLAHABAD & ORS.
(Civil Appeal Nos.3938-3939 of 2008)
B MAY 16, 2008
[K.G. BALAKRISHNAN, CJI, R.V. RAVEENDRAN AND
D.K. JAIN, JJ.]
c UP Secondary Education Selection Board Act, 1982 with
amending Acts of 1985, 1991, 1993, 1995 and 1998; Ss. 2(1),
10, 11, 32 and 33(C)IUP Secondary Education Services Se-
lection Board Rules, 1983 with amending Act of 1998; rr 112(b)
and 12(5)/UP Intermediate Education Act, 1921; Appendix A
D of Regulation I of Regulations framed thereunder/UP Public
Service (Reservation for Scheduli~d Castes, Scheduled Tribes
and Other Backward Classes Act. 1994:
Selection of Principals in eclucational institutions - UP
Board issuing advertisement for recruitment of Principals -
E Challenged by Principals officiatirg on adhoc basis on ground
of qualifications etc. - Dismissed by Single Judge of High
Court - Reversed by Division Bench of High Court setting
aside selection/appointment of Principals - Correctness of -
Held: Incorrect - Note appendeo to r 12(5) of the Rules ex-
F eludes teaching experience poss9ssed by Assistant Teacher
but making the experience posSE!SSed by serving Headmas-
ter/Lecturer relevant - The 'Note' has the effect of modifying
the conditions of qualifying experience mentioned in Appen-
dix A of Regulations under 1921 Act - Since the impugned
G advertisement is in conformity with the 'Note', the selection
procedure could not be faulted on that score - Division Bench
of the High Court erred in law in reversing the decision of Single
Judge of the High Court on this ground - Hence, judgment of
the Division Bench of the High Court, to the extent of revers-
H 1~
BALBIR KAUR & ANR. v. U.P. SECONDARY 131
EDUCATION
f
ing the decision of the Single Judge, is set aside restoring the A
;udgment of Single Judge of the High Court.
Direct recruitment of Principals - Reservation of vacan-
cies in accordance with 1994 Act - Requirement of - Held:
Not required - S.10 of 1994 Act expressly excludes the post
of the Principal from the purview of 1994 Act - Thus, intention B
of Legislature in not providing any reservation against the post
of Principal under the 1994 Act is manifestly clear - More-
over, providing reservation against the post of Principal would
result in 100% reservation which violates Articles 15 and 16 of
the Constitution - Thus, advertisement in question not viti- C
ated for want of provision for reservation - Constitution of In-
dia, 1950 - Articles 14 and 16.
Notification in Hindi and English in terms of Appendix D,
R 12(b) (i) of 1998 Rules - Ambiguity in Hindi version - Effect D
of - Held: No prejudice has been caused to respondents as
the discrepancy had been rectified by issuing a corrigendum
to that effect.
Amendment in 1982 Act - Insertion of r33(c) regulariz-
ing adhoc services of Principals holding the post upto August E
7, 1993, though amendment was made effective in 1998 -
Validity of - Held: Valid - In terms of amending Act of 1993
a/so, cut off date fixed for regularization of adhoc services of
Principals - Hence, it cannot be said that fixing of August 6,
1993 as the cut off date for regularization is arbitrary, warrant- F
ing interference by Supreme Court.
Selection - Region-wise/district-wise - Whether violative
of equality clause under Articles 14 and 16 of the Constitution
- Held: - No.
G
Words & Phrases:
Year of recruitment - Meaning of in the context of s. 2(1)
of the UP Secondary Services Selection Board Act, 1982.
Uttar Pradesh Secondary Selection Board issued an
H
132 SUPREME COURT REPORTS [2008] 9 S.C.R.
A advertisement in terms of U.P. Secondary Education Se-
lection Board Act, 1982, the Principal Act, for direct recruit-
ment to the posts of teachers, lecturers and the heads of
several institutions regionwise. The Board was also re-
quired to consider the names .of two senior most teach-
8 ers of the Institutions concerned, for which names were
to be forwarded by the management in accordance with
Rule 11 (2) (b) of the U.P. Secondary Education Services
Selection Board Rules, 1988. The advertisement so issued
by the Board was challenged by the serving Principals,
c who were officiating on ad hoc basis on the grounds that
(i) the cut off date as fixed in terms of the 1998 amend-
ment, for regularizing the ad-hoc Principals/teachers was
arbitrary, discriminatory and violative of Article 14 of the
Constitution of India; (ii) the exclusion and inclusion of
D candidates eligible for selection was not in conformity with
Appendix A of Regulation 1 of 'Chapter II of the Regula-
tions framed under the U.P. Intermediate Education Act,
1921, the Intermediate Act (iii) the regionwise consider-
ation and declaration of the result for the post of Heads
of the Institution, unlike the teachers, was violative of Ar-
E ticles 14 and 16 of the Constitution; (iv) sub rule (5) of
Rule 1"2 of the Rules was unreasonable and discrimina-
tory as it gave undue importance to educational qualifi-
cations and no importance to the service record; (v) the
manner of allocation of marks and the selection process
F was arbitrary and (vi) the Principal Act did not provide for
any reservation for the post of the Head of the Institution
for backward class or scheduled caste or scheduled tribe
candidates, which was contrary to the provisions and in
violation of the U.P. Public Service (Reservation for Sched-
G uled Caste, Scheduled Tribe and Other Backward
Classes) Act. The writ petitions were dismissed by the
Single Judge of the High Court. Aggrieved, the writ peti-
tioners filed appeals, which were allowed by the Division
Bench of the High Court holding that the advertisement
H issued by the Board prescribing teaching experience of
BALBIR KAUR & ANR. v. U.P. SECONDARY 133
EDUCATION
4 years as Lecturer for the post of Principal of an lnterme- A
diate College was contrary to the statutory requiremen,t
of academic qualifications stipulated in Appendix A o'f
Regulation 1 of Chapter II of Intermediate Act, as adopted
by sub rule 5 of Rule 15 of the Rules and as a result thereof
it was possible that many candidates having 4 years B
teaching experience of class IX and X could not apply,
resulting in serious prejudice to them and setting aside
the selections made in pursuance of the said advertise-
ments. Hence, the present appeals filed by the selected
candidates. c
Allowing the appeals the Court
HELD: 1.1 Rule 5 of the U.P. Secondary Education
Services Selection Board Rules, 1998 deals with academic
qualifications for appointment to the post of teacher and
0
contemplates that a candidate must possess qualification
as specified in Regulation 1 of Chapter II of the Regula-
tions made under the Intermediate Act. As per Appendix A
of the Intermediate Regulations, a candidate should have
four years experience of teaching classes X to XII. How- E
ever, the 'Note' appended to sub rule (5) of Rule XII ex-
cludes the teaching experience of Agsistant Teacher for
being construed as qualifying him for the post of Princi-
pal of an Intermediate College, although the afore-ex-
tracted Appendix A provides for it. The 'Note' appended
to sub rule (5) of R XII of 1998 Rules clearly stipulates that F
for selection to the post of the Principal of an Intermedi-
ate College, and for the purpose of calculating the experi-
ence, services rendered as Headmaster of a High school
or as a Lecturer only has to be taken into consideration.
Obviously, the expression 'teaching experience' as con- G
templated in the 'Note' would apply both to the required
experience and the experience more than that and, there-
fore, even for required experience only service rendered
as Headmaster/Lecturer is relevant. (Para - 19)
H
134 SUPREME COURT REPORTS [2008] 9 S.C.R.
A 1.2 It is trite that true nature of a statutory provision
has to be determined from the content of the provision,
its import gathered from the language implied and the lan-
guage construed in the context in which the provision
was enacted. (Para - 20) [152-E]
B Dattatraya Govind Mahajan & Ors. vs. State of
Maharashtra & Anr. (1977) 2 SCC 548 and Rani Choudhury
vs. Lt. Col. Suraj Jit Choudhury (1982) 2 SCC 596 - relied
on.
c 1.3 Section 32 of the U.P. Secondary Education Se-
lection Board Act provides that the provision of the U.P.
Intermediate Education Act, the Intermediate Act and
Regulations made thereunder will continue to be in force
1 in case they are not inconsistent with the Principal Act
.- and the Rules made thereunder. 'Note' to sub rule (5) of
0
Rule 12 of 1998 Rules prescribes the requirement of ex-
perience f~r the post, which is different from what is pre-
scribed in the said Appendix A and, therefore, there being
a cOrtflict between the two provisions, in the teeth of Sec-
' tion 32, the said 'Note' shall have an overriding effect over
E Appendix A insofar as the question of experience is con-
cerned. In this view of the matter, this court is in agree-
ment with the Single Judge of the High Court that the im-
pugned advertisements were in conformity with the said
'Note' and, therefore, the selection procedure could not
.,, F be faulted on that score. The contention of the writ peti-
tioner that some persons who possessed essential quali-
fications had been excluded from consideration or any
person who ought not to have been considered for the
said post had been considered for selection is well
G founded. Hence, the Division Bench had erred in law in
reversing the decision of the Single Judge on the point.
(Para - 22) [153-A-F] ·
2.1 Having examined the issue in the light of the U.P.
H Public Service (Reservation for Scheduled Caste, Sched-
BALBIR KAUR & ANR. v. U.P. SECONDARY 135
EDUCATION
uled Tribes arid Other Backward Classes) Act, 1994, Sec- A
· ti on 10 of the 1982 Act, the Principal Act and the settled
position in law, this Court is of the view that the stand of
the respondents is not well founded. Under Section 10 of
the Principal Act, the management is required to intimate
the number of vacancies to be filled by way of selection B
by direct recruitment. While doing so, the management is
also required to intimate the number of vacancies to be
reserved for the candidates belonging to the Scheduled
· Castes, Scheduled Tribes and Other Backward Classes
of citizens in accordance with the 1994 Act. However, c
Section 10 expressly excludes the post of the Principal
from the purview of the 1994 Act. Thus, from a plain read-
ing of the said provision, the intention of the Legislature
is manifestly clear. The legislature, in its own wisdom did
not think it proper to provide for any reservation under
0
> the 1994 Act for the post of head of the institution. Indubi-
tably, there is no challenge to the validity of Section 10 of
the Principal Act. Moreover, the post of the Principal in an
educational institution being in a single post cadre, in the
light of the clear dictum laid down by this Court, such a
post cannot be subjected to reservation. It will result in E
100 per cent reservation, which is not permissible in terms
of Articles 15 and 16 of the Constitution of India. (Para -
28) [156-F-H, 157 -A,B]
PG/ Chandigarh vs. Faculty Association (1998) 4 SCC 1 F
- followed.
Dr. Chakrdhar Paswan vs. State of Bihar (1988) 2SCC
214 - relied on.
2.3 Neither the Principal Act, nor the rules made there- G
under or the 1994 Act provide for clubbing of all educa-
tional institutions in the State of U.P. for the purpose of
reservation and, therefore, there is no question of club-
bing the post of the Principals in all the educations insti-
tutions for the purpose of applying the principle of reser- H
136 SUPREME COURT REPORTS [2008] 9 S.C.R.
A vation under the 1994 Act. This Court is in agreement with
the High Court that the advertisements impugned in the
writ petition were not vitiated for want of provision for res-
ervation. It is also pertinent to note that none of the re-
spondents belong to the reserved category of Scheduled
B Castes or Scheduled Tribes or other Backward Classes.
All of them are from the general category. Therefore, even
otherwise they have no locus standi to raise the plea of
reservation. (Para - 28) [157-D,E,F]
3. Section 2(1) of the Principal Act, as amended by
C the U.P. Secondary Service Commission and Selection
Board (Amer1dment) Act, 1992 defines "year of recruit:
ment" 1o mean a period of twelve months commencing
from 1st day of July of a calendar year. Section 10 of the
Principal Act prescribes the procedure for determination
D of number of vacancies and directs the management to
determine the number of vacancies, ·existing or likely to
fall vacant during the year of recruitment'. On a bare read-
ing of the provision, it is manifestly clear that when a se-
lection is held in a "year of recruitment" then all the exist-
E ing vacancies and the vacancies likely to fall vacant dur-
ing the year of recruitment are clubbed and notified. More-
over, Section 11 of the Principal Act also contemplates
preparation of a panel of the selected candidates with re-
spect to the vacancieS' notified under Section 10(1)
F thereof. It is clear that though it may be desirable for bet- ,
ter administration but neither Section 10 nor Section 11
of the Principal Act nor the 1998 Rules as such mandate
that selection or determination of vacancies must be
yearwise and, therefore, all the vacancies which are "ex-
G isting or which are likely to'fall vacant during the year of
recruitment" can be clubbed irrespective of the year of
occurrence of the vacancy. Moreover, second proviso to
Rule 11 (2) (a) also contemplates that the vacancies exist-
ing on the date of commencement of these Rules as well
as the vacancies which are likely to arise on 30th June,
H
BALBIR KAUR & ANR. v. U.P. SECONDARY 137
EDUCATION
"' t
1998, shall be included in the consolidated statement by A
.. the management and sent to the Board for making selec-
tion which shows that all the existing vacancies irrespec-
tive of the year of occurrence can be clubbed for being
filled up together by the Board. In this view of the matter,
it cannot be said that Rule 11(2) (a) of the Rules is in con- B
flict with the provisions of Section 10(1) of the Principal
Act, as is sought to be pleaded on behalf of the respon-
dents. Hence, the view taken by the High Court that the
Board and the Management have not committed any er-
ror in clubbing vacancies which were existing on the date c
of selection is approved. (Para - 30) [158-D-H, 159-A,B,C]
4. This Court is of the view that insofar as the final
results are concerned, the issue that there was difference
in the Hindi and English version of the notification given
).
in Appendix 'D' framed in terms of R 12 (5)(i) of the 1998 D
Rules on the basis whereof quality points were to be cal-
culated is of no consequence. Admittedly, there was no
ambiguity in the Hindi version of the said Appendix, which
had been followed by the Board. Though, technically the
respondents' stand that the corrigendum had not been E
issued strictly as per the procedure prescribed may have
some substance but this Court is convinced that in the
final analysis no prejudice has been caused to them be-
cause the stated discrepancy had been rectified and the
1 English version had been brought in consonance with F
the Hindi version. In this view of the matter, it is not nee-
essary to dilate on the scope and effect of Article 348(3)
of the Constitution, to which reference was made by coun-
sel for the parties. (Para - 32) [160-C,D,E]
5.1 There is no warrant for accepting as a general G
proposition that a regionwise or districtwise selection is
-( per se violative of equality clause enshrined in Articles 14
and 16 of the Constitution. It would be discriminatory only
when the person, who alleges discrimination, demon-
strates certain appreciable disadvantages, qua similarly H
138 SUPREME COURT REPORTS [2008] 9 S.C.R.
.;
A situated persons, which he would not have faced but for
the impugned State action. Therefore, the onus was on '
the writ petitioners to show by cogent material that by re-
sorting to regionwise selection, they were placed in some
disadvantageous position as compared to their counter-
B parts or that in this process merit was the casualty. (Para
- 34) [161-A,B]
~
5.2 In the- present case, neither Section 10 of the Prin-
cipal Act nor any other statutory provision forbids
regionwise selection. Besides, no restriction was imposed
c upon the candidates insofar as their choice for the regions
was concerned. An eligible candidate could apply in any
of the regions and his application was to be considered
in accordance with the Rules. It has neither been pleaded
nor can it be held that the right of any eligible candidate
D to apply in a particular zone was curtailed or that an equal .,
opportunity to compete had been denied to the respon-
dents. It is not even the case of the respondents that a
less meritorious candidate has been selected on account
of regionwise selection. (Para - 35) [161-C,D,E]
E Radhey Shyam Singh & Others, etc. vs. Union of India &
Ors. (1997) 1 SCC 60; Nidamarti Maheshkumar vs. State of
Maharashtra and Ors. (1986) 2 SCC 534 and Minor P
Rajendran vs. State of Madras & Ors. AIR (1968) SC 1012 -
held inapplicable. r
F
5.3 The respondents have neither pleaded nor placed
on record any material to show that as a result of
regionwise selection they have not been selected despite
the fact that they were more meritorious as compared to
the selected candidates. Hence, the selection process
G
cannot be struck down as violative of the principles enun-
ciated in Articles 14 and 16 of the Constitution. (Para - 35) }
[162-A,B]
6.1 Section 33C of the Principal Act was inserted with
H effect from 20th April, 1998 providing for the regulariza-
BALBIR KAUR & ANR. v. U.P. SECONDARY 139
EDUCATION
.,.. tion of ad-hoc Principals who had been appointed by pro- A
motion on or after 31st July, 1988 but not later than 6th
August, 1993, in accordance with Section 18 of the Princi-
pal Act, which pertained to ad-hoc appointments. Section
16 of the Principal Act which contemplates that all appoint-
ments will be made through the Selection Board, was sub- 8
stituted by the 1993 Amendment Act and was enforced with
effect from 7th August, 1993. (Para - 37) [162-G,H, 163-A]
6.2 Though Section 18 was reintroduced by the 1995
Amendment Act with certain conditions yet the Legisla-
ture fixed 6th August, 1993 as the cut off date as the State c
Government had decided to make regular selections and
steps in that behalf had already been initiated. Thus, it
cannot be held that fixing of 6th August, 1993 as the cut
off date for regularization is arbitrary or whimsical, war-
ranting interference by the Court. Moreover, the State is D
not obliged to regularize all ad-hoc appointments merely
on the strength of their continuance on the post for a long
period, particularly when their original appointments were
not made by following a due process of selection as en-
visaged in the relevant rules. Hence, the judgment of the E
Division Bench to the extent it has reversed the decision
of the Single Judge is set aside; the decision of the Sing le
Judge is restored and as a consequence, the writ peti-
tions filed by the respondents stand dismissed. (Paras -
37 & 38) [163-C,D,E,F] F
Secretary, State of Karnataka & Ors. vs. Umadevi (3) &
Ors. (2006) 4 SCC 1 - relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3938-3939 of 2008
G
From the final Judgment and Order dated 29/9/2003 of
the High Court of Judicature at Allahabad in Special Appeal
Nos. 286 and 485 of 2001
WITH
H
140 SUPREME COURT REPORTS [2008) 9 S.C.R.
A C.A. Nos. 3806-3817, 3828-3838, 3841-3842, 3844,
3846-3864, 3866-3901, 3903-3905, 3907-3921, 4085-4087
and 3924-3937 of 2008 and Contempt Petition (C) No. 269/
2005 in S.L.P. (C) No. 2961/2004.
M.N. Krishnamani, S.R. Singh, Rakesh Dwivedi, J.N.
8
Dubey, S.R. Setia, Sunil Gupta, Dinesh Dwivedi, Dr. R.G. Padia,
Hari Om Yaduvanshi, Dr. Monika Gusain, Anil Kumar, Pratap
Kalra, T.N. Singh, Umang Tripathi, Niranjana Singh, Abhishek
Chaudhary, Ram Ekbal Roy, M.P. Jha,AtharAlam, SumbulAthar,
Azhar Alam, R.C. Mishra, Dr. Meera Agarwal, Manoj Swarup,
C Lalita Kohli, Anubhav Kumar (for M/s. Manoj Swarup & Co.),
J.P. Pandey, D.N. Mishra, Punit Agrawal, Praveen Kr. Singh,
Ajay Choudhary, Vibhakar Misra, Pankaj Kr. Singh, Mukesh
Verma, S.P. Jha, Dr. Vinod Tewari, M.R. Shamshad (for K.L
Janjani), Dr. Ajay Kumar, Ranbir S. Yadav, Anurag Dubey, Anu
D Sawhney, Meenesh Dubey, Upasana Tiwari, Gautam Awasti,
Nikhil Jain (for S. Srinivasan), Shalini Kumar, Neeru Vaid, Syed
Ali Ahmad (for R.D. Upadhyay), Vinita G. Upadhyay,
Awadheshwar Singh, Rajeev Sharma, D.K. Sinha, R.K. Vats,
Sangeeta Das, S.S. Jain, Ajay Veer Singh Jain, Dr. Vipin Gupta,
E Meera Mathur, Vivek Singh, T.N. Saxena (for S.N. Singh),
Deepak Goel, S. Janani, Nidhi, P.K. Jain, Shaim Narain Singh,
S.W.A. Qadri, Manoj Mishra, Rajeev Dubey, Pramod Swarup,
Praveen Swarup, Bharat Ram, Hen Lata Budgujan, Shail Kumar
Dwivedi, lmtiazAhmed, Naghma lmtiaz (forV.N. Raghupathy),
F Rachana Srivastava, Ajay Choudhary, Kuldip Singh, Mohd.
lrshad Hanif, Aditya Sharma, Anil Sharma, Deepak Goel, K.S.
Rana, V.K. Singh, Rohit Pandey, S.N. Singh (forY.P. Dhingra),
Raj Kr. Gupta, Shea Kr. Gupta (for A.N. Baradaiyar), Chandini
Sharma, S. Srinivasan, Shankar Divate, L.B. Rai, Kamal
G Pandey, Shekhar Jha, Malvika Trivedi, Sandeep Singh,
Pradeep Misra, Yatish Mohan, Vikas R., E.C. Vidya Sagar,
SatyajitA. Desai,Amol N. Suryawanshi, Vikram Saluja (forV.R.
Anumolu), Z.K. Faizan, Goodwill lndeevar, R.K. Tripathi, Nikhil
Majithia, Prashant Kumar, 8. Aggarwalla, Rajiv Mehta, S.S.
Bandyopadhyay, Mohan Paney, Ajay Kumar, Manoj Swarup, Dr.
H
BALBIR KAUR & ANR. v. U.P. SECONDARY 141
EDUCATION [D.K. JAIN, J.]
l.P. Singh, Merusagar Samantary, Vairagya Vardhan, C.D. A
Singh, Gunratan Pandey, Kiran Suvarna, Adesh K. Gill,
Nagendra Singh, Anil K. Sharma, Vishwa Pal Singh, R.C.
Verma, T.N. Singh, Jyoti Saxena, H.C. Aggarwal, Sashi Kiran,
Vipin K. Saxena, M.P. Shorawala, N.M. Popli (for Bharat
Sangal), G.S. Sharma, V.K. Sharma, R.A. Sharma (for S.k. B
Sabharwal), Anoop Kr. Srivastava, A. Deepankar, A.K. Misra,
K.K. Tyagi, I. Ahmad, Abhilasha, P. Narasimhan,R.K. Gupta,
S.K. Gupta, Arun Yadav (for A.N. Bardayar), Sunil Kr. Singh,
Mukti Singh, Anil Kr. Jha, Shashindra Tripathi, Ramesh Chandra
Pandey, Shailendra Bhardwaj, P.R. Dhania, Milind Kumar, c
Dharmendra, P.D. Sharma, Sanjay Singh, Arun Kr. Beriwal, Shail
Kr. Dwivedi, Pramod Dayal, Dinesh Kumar Garg, S.K. Verma,
Shakil Ahmed Syed, Arna Das, Vishwajit Singh, Atishi Dipankar,
Arvind Verma, Mamta Tiwari, Swati Sinha, Jayasree Singh (for
M/s. Fox Mandal & Co.), J.P. Dhanda, S.K. Bhatt, A.K. Sharma D
and Vimal Kumar Jad for the Appearing Parties.
The Judgment of the Court was delivered by
D.K. JAIN, J. Permission to file the Special Leave Peti-
tions is granted.
E
2. Delay condoned.
3. Leave granted.
4. Challenge in this batch of appeals is to a common judg-
ment rendered by a Division Bench of the High Court of Judica- F
tu re at Allahabad in Special Appeal No. 159 of 2001 and other
connected appeals, partly disagreeing with and reversing the
view of the learned Single Judge in regard to the selection of
Principals of various institutions, by direct recruitment.
5. To comprehend the controversy in these cases, it would G
suffice to refer to the facts in SLP (C) Nos.19335-19336 of 2003,
which was otherwise treated as the lead case.
6. On 12th August, 1998, 24th December, 1999 and 3rd
March, 2002, U.P. Secoridary Selection Board (hereinafter re- H
142 SUPREME COURT REPORTS [2008] 9 S.C.R.
A ferred to as the Board) issued advertisements inviting applica-
tions for direct recruitment to the posts of teachers, lecturers
and the heads of several Institutions. In these appeals we are
concerned with the selection of heads of the Institutions/Princi-
pals. The advertisements were issued under the U.P. Second-
B ary Education Selection Board Act, 1982 (hereinafter referred
to as the Principal Act). In the advertisement, the vacancies for
the post of Principal in respective Institutions were indicated
regionwise. The candidates were to be considered regionwise
and results were also to be declared regionwise. The candi-
C dates were required to give the choice of not more than three
institutions in order of preference and if he wanted to be con-
sidered for any part:cular institution or institutions and not for
other institutions he could mention this fact in the application. In
addition to the candidates applying directly, the Board was also
required to consider the names of two senior-most teachers of
D the Institution concerned. These two senior-most teachers were
not required to apply but their names were to be forwarded by
the management in accordance with Rule 11 (2) (b) of the U.P.
Secondary Education Services Selection Board Rules, 1998
E (for short 'the 1998 Rules'). Nonetheless, they could apply for
other Institutions as well.
7. The said advertisements were challenged by the Prin-
cipals, who were already heading some institutions on ad-hoc
basis, and the senior-most teachers of various institutions mainly
F on the grounds that : (i) the cut off date i.e. 6th August, 1993
fixed by the 1998 amendment, for regularizing the ad- hoc Prin-
cipals/teachers was arbitrary, discriminatory and violative of Ar-
ticle 14 of the Constitution of India (ii) the exclusion and inclu-
sion of candidates eligible for selection was not in conformity
G with Appendix A of Regulation 1 of Chapter II of the Regulations
framed under the U.P. Intermediate Education Act, 1921 (for
short 'the Intermediate Act') (iii) the regionwise consideration
and declaration of the result for the post of Heads of the Institu-
tion, unlike the teachers, was violative of Articles 14 and 16 of
the Constitution; (iv) sub rule (5) of Rule 12 was unreasonable
H
BALBIR KAUR & ANR. v. U.P. SECONDARY 143
EDUCATION [D.K. JAIN, J.]
and discriminatory as it gave undue importance to educational A
qualifications and no importance to the service record; (v) the
manner of allocation of marks and the selection process was
arbitrary and (vi) the Principal Act did not provide for any reser-
vation for the post of the Head of the Institution for backward
class or scheduled caste or scheduled tribe candidates, which B
was contrary to the provisions and in violation of the U.P. Public
Service (Reservation for Scheduled Caste, Scheduled Tribe
and Other Backward Classes) Act, 1994 (for short the 1994
Act).
8. On the basis of rival stands of the parties, including the C
State, the learned Single Judge formulated as many as 15 points
for determination.
9. The learned Single Judge answered all the 15 points,
so formulated, against the writ petitioners. Consequently, vide D
order dated 14th February, 2001, all the writ petitions were dis-
missed.
10. Being aggrieved, the writ petitioners carried the mat-
ter in Special Appeals to the Division Bench. The Division Bench
affirmed the view taken by the learned Single Judge on all the E
points except on one point (No.(iii)), namely, in regard to the
requirement of minimum qualification mentioned in the adver-
tisements. The Division Bench held that under sub rule (5) of
Rule 15 of the Rules, the qualification as laid down in Appendix
A of Regulation 1 of Chapter II of the Intermediate Act had been F
adopted for appointment to the post of teachers, which includes
Principals. For the post of Principal, the said provision provides
only for 4 years teaching experience of class IX to XII and not
the teaching experience of 4 years as Lecturer, as prescribed
in the advertisements. Therefore, by prescribing in the adver- G
tisement 4 years teaching experience as a Lecturer, the Board
had exceeded its jurisdiction, which, being contrary to law could
not be permitted. Thus, the Division Bench came to the conclu-
sion that the advertisement issued by the Board prescribing
teaching experience of 4 years as Lecturer for the post of Prin- H
144 SUPREME COURT REPORTS [2008] 9 S.C.R.
A cipal of an Intermediate College was contrary to the statutory
requirement of academic qualifications stipulated in Appendix
A of Regulation 1 of Chapter II of Intermediate Act, as adopted
by sub rule 5 of Rule 15 of the Rules and as a result thereof it
was po.ssible that many candidates having 4 years teaching
B experience of class IX and X could not apply, resulting in seri-
ous prejudice to them. Accordingly, the appeals were allowed
and the selections made in pursuance of the said advertise-
ments were set aside. It is this common judgment which is ques-
tioned in these appeals by the selected candidates.
C 11. Although we have heard learned counsel for the par-
ties on all the issues which have been answered by the Divi-
sion Bench against the writ petitioners, we shall first deal with
the central point, namely, the prescription of minimum teaching
experience as Lecturer, stipulated in the impugned advertise-
D ments, on which the Division Bench disagreed with the learned
Single Judge and has struck down the advertisements and
quashed the entire selection process for the said post.
12. Mr. Rakesh Dwivedi, learned senior counsel appear-
ing in the lead case for the selected candidates, the appellants
E herein, submitted that in the light of the 'Note' appended to sub~
rule (5) of Rule XII of the 1998 Rules, the requirement of mini-
mum experience as stipulated in Appendix A of Regulation 1 of
Chapter II of the Regulations framed under the Intermediate Act,
stands modified and, therefore, the advertisements being in
F conformity with the 'Note' could not be struck down as being in
conflict with the said Appendix. Learned counsel argued that
the 'Note' expresses the legislative intent and being a part of
the Rules, framed in terms of Section 35 of the Principal Act,
has full efficacy and cannot be ignored. In support of the propo-
G sition that Notes/Explanations are one of the modes by which
the legislature expresses itself and the words used therein alone
being the repository of legislative intent, any 'Note' or the 'Ex-
planation' must be construed according to its plain language
and not on a priori considerations, reliance was placed on the
H decisions of this Court in Oattatraya Govind Mahajan & Ors.
BALBIR KAUR & ANR. v. U.P. SECONDARY .145
EDUCATION [D.K. JAIN, J.]
Vs. State of Maharashtra & Anr. 1 , Rani Choudhury Vs. Lt. Col. A
Suraj Jit Choudhury2 and M/s.Aphali Pharmaceuticals Ltd. Vs.
State of Maharashtra & Ors.3. It was also contended that in
view of Section 32 of the Principal Act, the said Appendix has
to give way to the new Rules and, therefore, with regard to the
post of a Principal, insofar as the experience is concerned, the B
minimum qualification would stand modified in terms of the said
'Note'. It is, thus, asserted that there is no conflict between the
contents of the impugned advertisements and the relevant Rules.
13. Dr. R.G. Padia, learned senior counsel appearing on
behalf of the ad-hoc Principals, on the other hand, submitted C
that insofar as the academic qualifications under Rule 5 of the
1998 Rules are concerned, qualifications specified in Regula-
tion 1 of Ghapter II of the Regulations made under the Interme-
diate Act having been adopted for the purpose of 1998 Rules
as well, the minimum qualification for the post of Principal can- D
not be at variance with what is specified in the said Appendix,
which includes experience of teaching classes IX to Xii and,
therefore, experience of teaching classes IX & X had been er-
roneously excluded in the impugned advertisements. It is
pleaded that Rule 12 (5) of the 1998 Rules cannot have the E
effect of altering or modifying the conditions of qualifying expe-
rience mentioned in the Appendix of the said Regulations.
14. In order to appreciate the rival stands on the issue, it
would be expedient to briefly notice the historical background
of the statutory provisions relating to the selection of heads of F
educational institutions in the State of U.P. Prior to the enact-
ment of the Principal Act, by U.P. Act No.5of1982, selections
for the posts of Head of the educational institutions were made
as per the provisions of the Intermediate Act by the Selection
Committee constituted by the Committee of Management, G
managing the institution, with the prior approval of the concerned
District Inspector of Schools. Minimum qualifications for the post
of the Head in an Institution were prescribed in Appendix A in
reference to Regulation 1 of Chapter II of the Intermediate Act.
However, with the coming into force of the Principal Act, with H
146 SUPREME COURT REPORTS (2008) 9 S.C.R
A effect from 14th July, 1981, selections for the posts were en-
trusted to a Commission, in order to ensure that good and com-
petent persons were selected and appointed to the said posts.
Relevant rules in this behalf were framed by the State Govern-
ment for the first time in the year 1983, called the U.P Second-
B ary Education Services Commission Rules, 1983. However vide
Notification dated 13th July, 1998, the 1998 Rules, enforced
with effect from 8th August, 1998, were notified. As noted above,
selections in question were held under the 1998 Rules.
15. It appears that in order to obviate the diffic~lty faced
c by the ad-hoc teachers and the Principals/Heads oft e lnstitu-
tion, who had been continuing on the postfor a long ~e and to
bring an end to adhocism, the Principal Act was a nded in
the year 1985 by which Section 31-A was inserted, re_,iularizing
certain appointments. Another amendment was ma~e in the
D Principal Act in the year 1991, inserting Section 33-A for regu-
larizing some more ad-hoc appointments. It was enforced on
7th August, 1993. In the year 1993, by another amendment in
the Principal Act, Section 33-B was introduced, regularizing
some more ad-hoc appointments. In the year 1995, by way of
E an amendment in the Principal Act, enforced with effect from
28th December, 1994, four Regional Selection Boards, which
were established by the 1993 amendment, were abolished and
one Commission for the entire State was provided for. In the
year 1998, yet another amendment, effective from 20th April, }
F 1998, was made to the Principal Act, entrusting the entire se-
•
lection process to the Board in place of the Commission. By
the said amendment, Section 33-C was also inserted in the
Principal Act by which ad-hoc teachers and Heads, who were
appointed not later than 6th August, 1993, were sought to be
regularized.
G
16. The pivotal Rule 5 of the 1998 Rules, prescribes aca-
demic qualifications for appointment to the post of teacher. It
reads as follows:
"5.Academic qualifications.-A candidate for appointment
H
....
BALBIR KAUR & ANR. v. U:P. SECONDARY 147
EDUCATION [D.K. JAIN, J.]
· to a post of teacher must possess qualifications specified A
in Regulation 1 of Chapter II of the Regulations made
under the Intermediate Education Act, 1921."
17. Chapter II of the Intermediate Act deals with appoint-
ment of heads of institutions and teachers. Regulation 1 of the
said Chapter stipulates that the minimum qualification for ap- B
.I
pointment as heads of institutions and teachers in any recog-
nized institution, whether by direct recruitment or otherwise, shall
be as given in Appendix A. As per the said Appendix, the es-
sential qualification for the post of head of the institution is as
follows: C
S.No. Name of the post & Age Desirable
educational training qualification
experience
1 2 3 4 D
1. Head of the institution Mini (1) Trained M.A. or mum
M.Sc. or M.Com. or 30 M.Sc. (Agri) or any years
equivalent post-graduate or any other degree which
is awarded by corporate body specified in above-
E
mentioned para one and should have at least
teaching experience of four years in classes 9 to 12
in any training institute or in any institution or University
<, specified in above-mentioned para one or in any
degree college affiliated to such University or F
institution, recognized by Board or any institution
affiliated from Boards of other States or such other
institutions whose examinations are recognized by
the Board, or should the condition is also that he/she
should not be below 30 years of age . G
.;
Or
2. First or second class post-graduate degree along
with teaching experience of ten years in intermediate
classes of any recognized institutions or third class H
148 SUPREME COURT REPORTS [2008] 9 S.C.R.
A post-graduate- degree with teaching experience of
fifteen years.
Or
3. Trained post-graduate diploma-holder in science.
B The condition is that he has passed this diploma
course in first or second class and have efficiently
worked for 15 or 20 years respectively after passing
such diploma course."
18.Part Ill of the 1998 Rules lays down the procedure for
C recruitment to various categories of teachers. Rule 10 (a) thereof
provides that the mode of recruitment of Principal of a11
Intermediate College or Headmaster of a High School shall be
by direct recruitment. The number of vacancies for the purpose
of direct recruitment are determined and notified in the manner
D laid down in Rule 11. Rule 12 lays down the procedure for direct
recruitment. Relevant portion'thereof reads thus:
"12. Procedure for direct recruitment.-(1) The Board shall,
in respect of the vacancies to be filled by direct .
E recruitment, advertise the vacancies including those
reserved for candidates belonging to Scheduled Castes,
Scheduled Tribes and Other Backward Classes of citizens
in at least two daily newspapers, having wide circulation
in the State, and call for the applications for being
F considered for selection in the proforma published in the
advertisement. For the post of Principal of an Intermediate
College or t'1e Headmaster of a High School, the name
and plac _1 the institution shall also be mentioned in the
advertisement and the candidates shall be required to
G
give the choice of not more than three institutions in order
of preference and if he wishes to be considered for any
particular institution or institutions and for no other
institution, he may mention the fact in his application.
(2) ........ .
H
BALBIR KAUR & ANR. v. U.P. SECONDARY 149
EDUCATION [D.K. JAIN, J.]
' .
(3) ........ . A
(4) The Board shall prepare lists for each category of
posts on the basis of quality points specified in Appendix
'B' or Appendix 'C', as the case may be, marks in written·
examination and marks for experience as follows:
B
(i) 30 per cent marks on the basis of quality points;
(ii) 40 per cent marks on the basis of the written
examination; and
(iii) 20 per cent marks for experience more than the · c
required experience in such manner that 4 marks
shall be allotted for having doctorate's degree and 2
marks shall be given for each year of such experience
with maximum of 16 marks.
Notes (1) - The teaching experience for this purpose D
shall be counted only for the recognized High School/
Intermediate College(s) or Junior High School and
such certificate shall actually mention the date of
appointment, date. of joining and the scale of pay
and duly signed by the Principal/Headmaster and E
countersigned by the District Inspector of Schools or
Zila Basic Shiksha Adhikari, as the case may be,
with full name of the countersigning authority.
(2) Any Wrong information submitted in this regard shall
make the applications of such candidates liable to F
be rejected and for this the candidate himself shall
be solely responsible. ·
(5) The Board shall, in respect to the selection for the post
of Headmaster and Principal, allot the marks in the G
following manner-
(i) 60 per cent marks on the basis of quality points
specified in Appendix 'D';
(ii) 20 per cent marks for having experience more than H
150 SUPREME COURT REPORTS [2008] 9 S.C.R.
A the required experience, 1 mark for each research
paper published with a maximum of 4 marks and 2
marks for each year of such experience with a
maximum of 16 marks; and
(iii) 10 per cent marks for having doctorate degree.
B
Note.- For the purpose of calculating experience the
service rendered as Headmaster of Junior High
School or as assistant teacher in a High School/
Intermediate College shall be counted in the case of
c selection of Headmaster; and for selection of
Principal, the service rendered as Headmaster of a
High School or as a Lecturer shall only be counted.
The provision of sub-rule (4) of Rule 12 regarding
the certificate of experience shall mutatis mutandis
apply.
D
(6) The Board, having regard to the need for securing due
representation of the candidates belonging to the
Scheduled Castes/Scheduled Tribes and Other Backward
Classes of citizens in respect of the post of teacher in
E lecturers and trained graduates grade, call for interview
such candidates who have secured the maximum marks
under sub-clause (4) above and for the post of Principal/
Headmaster, call for interview such candidates who have
secured maximum marks under sub-clause (5) above in
F such manner that the number of candidates shall not be
less than three and not more than five times of the number
of vacancies.
Provided that in respect of the post of the Principal or
Headmaster of an institution the Board shall also in
G addition call for interview two senior-most teachers of the
institution whose names are forwarded by the
Management through Inspector under Clause (b) of sub-
rule (2) of Rule 11.
(7) The Board shall hold interview of the candidates and
H
, ~ .~t~
BALBIR KAUR & ANR. v. U.P. SECONDARY 151
EDUCATION [D.K. JAIN, J.]
• 10 per cent marks shall be allotted for interview. The marks A
obtained in the written test and the quality points by the
eligible candidates shall not be disclosed to the members
of the Interview Board:
Provided further that in the interview, ten per cent marks
shall be divided in the following manner: B
(i) . 4 per cent marks on the basis of subjecUgeneral
knowledge;
(ii) 3 per cent marks on the basis of personality; and
c
"· (iii) 3 per cent marks on the basis of ability of expression.
(8) The Board then, for each category of post, prepare
panel of those found most suitable for appointment in order
of merit as disclosed by the marks obtained by them after
adding the marks obtained under sub-clause (4) or sub- D
clause (5) above, as the case may be, with the marks
obtained in the interview. The panel for the post of Principal
or Headmaster shall be prepared institution-wise after
giving due regard to the preference given by a candidate,
if any, for appointment in a particular institution whereas E
for the posts in the lecturers and trained graduates grade,
it shall be prepared subject-wise and group-wise
respectively, If two or more candidates obtain equal marks,
the name of the candidate who has higher quality points
shall be placed higher in the panel and if the marks F
obtained in the quality points are also equal then the name
of the candidate who in older in age shall be placed higher.
In the panel for the post of Principal or Headmaster, the
number of names shall be three times of the number of the
vacancies and for the post of teachers in the lecturers and
G
trained graduates grade, it shall be larger (but not larger
than twenty-five per cent) than the number of vacancies .
.,
..._ ................
..... 19. As noted supra, Rule 5 of the 1998 Rules deals with
H
152 SUPREME COURT REPORTS [2008] 9 S.C.R.
A academic qualifications for appointment to the post of teacher
and contemplates that a candidate must possess qualification
as specified in Regulation 1 of Chapter II of the Regulations
made under the Intermediate Act. As per Appendix A of the
Intermediate Regulations, a candidate should have four years
B experience of teaching classes X to XII. However, the 'Note'
appended to sub rule (5) of Rule XII excludes the teaching
experience of Assistant Teacher for being construed as qualifying
him for the post of Principal of an Intermediate College, although
the afore-extracted Appendix A provides for it. The 'Note' clearly
c stipulates that for selection to the post of the Principal of an
Intermediate College, with which we are concerned, for the
purpose of calculating the experience, services rendered as
Headmaster of a High school or as a Lecturer only has to be
taken into consideration. Obviously, the expression 'teaching
experience' as contemplated in the 'Note' would apply both to
0
the required experience and the experience more than that
and, therefore, even for required experience only service
rendered as Headmaster/Lecturer is relevant.
20. It is trite that true nature of a statutory provision has to
E be determined from the content of the provision, its import gath-
ered from the language implied and the language construed in
the context in which the provision was enacted. In Dattatraya
Govind (supra) and Rani Choudhury (supra), this Court has
said that mere description of a certain provision, such as ex-
F planation, is not decisive of its true meaning. It is the intention
of the legislature which is paramount and mere use of a label
cannot control or deflect such intention. In Dattatraya Govind's
case, it was observed that the legislature has different ways of
expressing itself and in the last analysis the words used alone
G are the true repository of legislative intent.
21. Applying the afore noted principles, we are of the opin-
ion that the 'Note' appended to sub rule (5) of Rule 12 of the
1998 Rules has the effect of modifying the conditions of qualify-
H ing experience mentioned in Appendix A of the Regulations
BALBIR KAUR & ANR. v. U.P. SECONDARY 153
EDUCATION [D.K. JAIN, J.]
under the Intermediate Act. A
22. Having come to the said conclusion, the issue which
still survives for consideration is whether for appointment to the
post of Principal, the qualifying experience as stipulated in the
said 'Note' would apply or the one prescribed in the Appendix-
A to Regulation I of Chapter II of the Regulations made under B
the Intermediate Act. In our view, answer to the question can be
found in Section 32 of the Principal Act, which provides that the
provision of the Intermediate Act and Regulations made there-
under will continue to be in force in case they are not inconsis-
tent with the Principal Act and the Rules made thereunder. As C
noted hereinbefore 'Note' to sub rule (5) of Rule 12 of 1998
Rules prescribes the requirement of experience for the post,
which is different from what is prescribed in the said Appendix
A and, therefore, there being a conflict between the two provi-
sions, in the teeth of Section 32, the said 'Note' shall have an D
overriding effect over Appendix A insofar as the question of ex-
perience is concerned. In this view of the matter, we are in agree-
ment with the learned Single Judge that the impugned adver-
tisements were in conformity with the said 'Note' and, there-
fore, the selection procedure could not be faulted on that score. E
We do not think that the contention of the writ petitioner that
some persons who had essential qualifications had been ex-
cluded from consideration or any person who ought not to have
been considered for the said post had been considered for
selection, is well founded. We have, therefore, no hesitation in F
holding that the Division Bench had erred in law in reversing
the decision of the learned Single Judge on the point.
23. We may now advert to other points on which the Divi-
sion Bench has endorsed the view taken by the Single Judge
and has negatived the stand of the respondents. As noted G
above, out of the fifteen points formulated and decided by the
learned Single Judge, the Division Bench had disagreed with
him only on the issue regarding the requirement of minimum
qualification mentioned in the advertisements. In order to ward
off any preliminary objection regarding the right of the respon- H
154 SUPREME COURT REPORTS [2008] 9 S.C.R.
A dents to be heard on the points decided against them by the
Division 13ench, without preferring independent petitions, Dr.
Padia, learned counsel for the respondents sought our permis-
sion to be heard on these points. In order to assert Respon-
dents' right of being heard on the points answered against them,
B learned counsel placed reliance on the decisions of this Court
in Ramanbhai Ashabhai Patel Vs. Dabhi Ajitkumar Fulsinji
and Ors 4, J.K. Cotton Spinning & Weaving Mills Company
Ltd. Vs. Collector of Central Excise 5, Jamshed Hormusji Wadia
Vs. Board of Trustees, Port of Mumbai and Anr. 6, Bharat Kala
c Bhandar Ltd. Vs. Municipal Committee, Dhamangaon 7 ,
Nalakath Sainuddin Vs. Koorikadan SulaimanB and Manage-
ment of Northern Railway Co-operative Society Ltd. Vs. Indus-
trial Tribunal, Rajasthan, Jaipur and Anr. 9
24. In Ramanbhai's case (supra) this Court had said that
D while dealing with an appeal before it, this Supreme Court has
the powm to decide all the points arising from the judgment
appealed against and even in the absence of an express provi-
sion like Order XU, Rule 22 of the Code of Civil Procedure, it
can devise an appropriate procedure to be adopted at the hear-
E ing. It was observed that there could be no better way of supply-
ing the deficiency than by drawing upon the provisions of a gen-
eral law like the Code of Civil Procedure and adopting such of
those provisions as are suitable. It was held that normally a party
in whose favour the judgment appealed from has been given is
F not granted special leave to appeal from it and, therefore, con-
siderations of justice require that in appropriate cases a party
placed in such a position should be permitted to support the
judgment in his favour, even upon the grounds which were nega-
tived in that judgment. Subsequently, explaining the issue a little
G further, in Jamshed Hormusji Wadia's case (supra) it was ob-
served that the permission to the respondent to support the de-
cree or decision under appeal by laying challenge to a finding
recorded or issue decided against him is not given because
Order 41 Rule 22 CPC is applicable to appeals preferred un-
der Article 136 of the Constitution; it is because of a basic prin-
H
BALBIR KAUR & ANR. v. U.P. SECONDARY 155
EDUCATION [D.K. JAIN, J.]
ciple of justice applicable to Courts of superior jUrisdiction. It A
was, thus, held that a person who has entirely succeeded be-
fore a Court or Tribunal below cannot file ari' appeal solely for
the sake of clearing himself from the effect of an adverse find-
ing or an adverse decision on one of the issues as he would not
be a person falling within the meaning of the words 'person ag- B
grieved'. However, in ari appeal or revision, as a matter of gen-
> eral principle, the party who has an order in his favour, is· en-
titled to show that even if the order was liable to be set aside on
the grounds decided in his favour, yet the order could be sus-
tained by reversing the finding on some other ground which was c
decided against him in the court below.
25. In the light of the aforenoted legal position, we permit-
ted Dr. Padia to address us on those points which were de-
cided by the High Court against the respondents.
D
26. To start with, Dr. Padia contended that the High Court
was not correct in holding that there could not be any reserva-
. tion for the post of head of a high school or an intermediate
college. According to the learned counsel, in all public appoint-
ments made by the Union Public Service Commission or the
State Public Service Commission, provision for reservation is E
always made in respect of Scheduled Castes and Backward
Class category candidates. It was argued that under the provi-
sions of 1994 Act, in all appointments to be made in the State
Public Service, reservation in terms of the said Act had to be
provided for and, therefore, by not providing for similar reser- F
vation in the advertisements in question, selections made pur-
suant thereto are per se illegal, being violative of Article 16(4)
of the Constitution. In support, reliance was placed on a Divi-
sion Bench decision of the Allahabad High Court in the case of
Onkar Datt Sharma & Ors. Vs. State of U. P & Ors. 10 wherein it G
was held that for the post of a head of the institution in degree/
post-graduate colleges throughout the State of U.P., the prin-
ciple of reservation as provided under the 1994 Act would ap-
ply. According to the learned counsel, the reservation Act (the
. 1994 Act) being a special statute, it would prevail over the Prin- H
156 SUPREME COURT REPORTS [2008] 9 S.C.R.
A cipal Act. Relying on the decision of this Court in Or. Suresh
Chandra Verma & Ors. Vs. The Chancellor, Nagpur Univer-
sity & Ors 11 ., it is urged that if the advertisements are held to be
bad for ignoring the provision for reservation, these have to be
struck down in entirety.
B 27. Learned counsel for the appellants, on the other hand,
submitted that the post of Principal being a single post, the pro-
visions of the 1994 Act shall have no application. According to
the learned counsel, the heads of several institutions are nei-
ther treated nor do they belong to a common cadre. Their em-
C players are different. The Board only makes the selection of the
head of the institution concerned and the appointment letters
are issued by the respective committees of the management. It
was further submitted that though the Principal Act was enacted
in the year 1982, yet Section 10 thereof expressly excludes the
D post of Principal from the purview of 1994 Act, which applies
only to the post of teachers. It was asserted that the post of the
Principal being a single cadre post, the policy of reservation
cannot be applied as it would amount to 100 per cent reserva-
tion, which is not permissible in law. In support, reliance was
E placed on the decisions of this Court in Or. Chakrdhar Paswan
Vs. State of Bihar 12, Bhide Girls Education Society Officer, Zila
Parishad Education 13, Chetana Oilip Motghare Bhide Girls
Education Society 14 , PG/ ChandigarhVs. Faculty Associa-
tion15, State of UP Vs. M.C. Chattopadhyay 16
F 28. Having examined the issue in the light of the 1994 Act,
Section 1O of the Principal Act and the settled position in law,
we are of the view that the stand of the respondents is not well
founded. Under Section 10 of the Principal Act, the manage-
ment is required to intimate the number of vacancies to be filled
G by way of selection by direct recruitment. While doing so, the
management is also required to intimate the number of vacan-
cies to be reserved for the candidates belonging to the Sched-
uled Castes, Scheduled Tribes and Other Backward Classes
of citizens in accordance with the 1994 Act. However, Section
H 10 expressly excludes the post of the Principal from the pur-
BALBIR KAUR & ANR. v. U.P. SECONDARY 157
EDUCATION [D.K. JAIN, J.]
t
view of the 1994 Act. Thus, from a plain reading of the said A
provision, the intention of the Legislature is manifestly clear. The
legislature, in its own wisdom did not think it proper to provide
for any reservation under the 1994 Act for the post of head of
the institution. Indubitably, there is no challenge to the validity of
Section 10 of the Principal Act. Moreover, the post of the Prin- B
cipal in an educational institution being in a single post cadre,
in the light of the clear dictum laid down by this Court, such a
post cannot be subjected to reservation. It will result in 100 per-
cent reservation, which is not permissible in terms of Articles
15 and 16 of the Constitution of India. In PG/ Chandigarh's case c
(supra) a Constitution Bench of this Court, while holding that
plurality of posts in a cadre is a sine qua non for a valid reserva-
tion, affirmed the view taken in Chakradhar Paswan Vs. State
of Bihar and Ors. 17 . In that case, it was held that there cannot be
any reservation in a single post cadre and the decisions to the
> D
contrary, upholding reservation in single post cadre either di-
rectly or by device .of rotation of roster were not approved. Be-
sides, as noted above, neither the Principal Act, nor the rules
made thereunder or the 1994 Act provide for clubbing of all edu-
cational institutions in the State of U.P. for the purpose of reser-
vation and, therefore, there is no question of clubbing the post E
of the Principals in all the educations institutions for the pur-
pose of applying the principle of reservation under the 1994
Act. We are, therefore, in agreement with the High Court that
~ the advertisements impugned in the writ petition were not viti-
ated for want of provision for reservation. It is also pertinent to F
note that none of the respondents belong to the reserved cat-
egory of Scheduled Castes or Scheduled Tribes or other Back-
ward Classes. All of them are from the general category. There-
fore, even otherwise they have no locus standi to raise the plea
of reservation. G
~ 29. It was then contended by learned counsel for the re-
spondents that under Section 10 of the Principal Act, vacan-
cies are to be notified in respect of each year of recruitment
and if the vacancies are clubbed together, the basic purpose of
H
158 SUPREME COURT REPORTS [2008] 9 S.C.R.
A 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
B respect of that recruitment year. Therefore, the person who be-
came 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
c taking recourse to the second proviso to Rule 11 (2) (a) of the
1998 Rules. Learned counsel asserts that in the light of clear
provision of Section 10 of the Principal Act, the said Rule can-
not be resorted to.
30. We do not find much substance in the contention. Sec-
D tion 2(1) of the Principal Act, as amended by the U.P. Second-
ary 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
E for determination of number of vacancies and directs the man-
agement 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
F and the vacancies likely to fall vacant during the year of recruit-
ment are clubbed and notified. Moreover, Section 11 of the Prin-
cipal Act also contemplates preparation of a panel of the se-
lected candidates with respect to the vacancies notified under
Section 10(1) thereof. It is clear that though it may be desirable
G for better administration but neither Section 10 nor 11 of the
Principal Act nor the 1998 Rules as such mandate that selec-
tion or determination of vacancies must be yearwise and, there-
fore, all the vacancies which are "existing or which are likely to
fall vacant during the year of recruitment" can be clubbed irre-
spective of the year of occurrence of the vacancy. Moreover,
H
BALBIR KAUR & ANR. v. . U.P. SECONDARY. 159
.. EDUCATION [D.K. JAIN, J.]
second proviso to Rule 11 (2) (a) also contemplates. that the A
vacancies existing on the date of commencement of these Rules
as well as the vacancies which are likely to arise on 30th June,
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 B
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 re-
spondents. We have, therefore, no hesitation in endorsing the c
view taken by the High Cou.rt that the Board and the Manage-
ment have not committed any error in clubbing vacancies which
were existing on the date of selection.
31. It was then submitted by Dr. Padia that there was dif-
ference in the Hindi and English version of the notification given D
in Appendix D framed in terms of Rule 12(5) (i) of the 1998
Rules, on the basis whereof quality points were to be calcu-
lated. According to the learned counsel, in the Hindi version
weightage to the percentage of marks in the high school, inter-
mediate, graduate and post-graduate degree was in the ratio E
of 1,2,4 and 8 respectively whereas in the English version it
was only 1,2,3 and 4. The submission was that in case the Hindi
version was followed then maximum marks that could be
1 awarded, as calculated in terms of Appendix D would be 174
and in case English version was to be followed then it would F
come to only 124. Further, the Board had scaled the said marks
upto 300 by multiplying the quality point marks of the candidate
by 300/174 as the total marks out of which the merit was to be
declared had been taken as 500 and 60 per cent of it came to
300. But this was down by following the Hindi version. The Con-
G
..;
tention was that in case the English version was to be followed,
the quality point marks had to be calculated after giving due
weightage for graduate and post-graduate degree and also it
was to be scaled upto 300 by multiplying the quality point marks
of300 by 124 and not by 174, which would result in some differ-
(!
H
.-
160 SUPREME COURT REPORTS [2008] 9 S.C.R.
A ence. Learned counsel contended that though the State Gov-
ernment had issued a corrigendum on 17th January, 2001 and
the English version of the Appendix B, C and D of the Rules
was corrected, the English translation of the corrigendum was
published only on 31st January, 2001. According to the learned
B counsel, this amounted to a retrospective amendment, carried
out with a view to validate the result and, therefore, the same
was violative of Article 166 of the Constitution. Learned coun-
sel urged that the corrigendum also suffered from a technical
defect inasmuch as the same had to be issued only in the name
C of the Governor and not by the Secretary as was done in the
instant case.
32. We are of the view that insofar as the final results are
concerned, the issue raised is of no consequence. Admittedly,
there was no ambiguity in the Hindi version of the said Appen-
D dix, which had been followed by the Board. Though, technically
the respondents stand that the corrigendum had not been is-
sued strictly as per the procedure prescribed may have some
substance but we are convinced that in the final analysis no
prejudice has been caused to them because the stated dis-
E crepancy had been rectified and the English version had been
brought in consonance with the Hindi version. In this view of the
matter, we deem it unnecessary to dilate on the scope and ef-
fect of Article 348(3) of the Constitution, to which reference was
made by learned counsel for the parties.
F 33. Dr. Padia also contended that the regionwise selec-
tion and declaration of the results for the post of the Principals
is not only violative of the procedure prescribed in Section 10
of the Principal Act; it will also lead to discriminatory results . It
was pleaded that the procedure adopted is against the spirit of
G Articles 14 and 16 of the Constitution and the principles of law
enunciated by this Court in Radhey Shyam Singh & Others,
etc. Vs. Union of India & Ors. 18 , Nidamarti Maheshkumar Vs.
State of Maharashtra and Ors. 19 and Minor P Rajendran Vs.
State of Madras & Ors. 20
H
>
BALBIR KAUR & ANR. v. U.P. SECONDARY 161
EDUCATION [D.K. JAIN, J.]
1-
34. In our view, the said contention is also not well-founded. A
There is no warrant for accepting as a general proposition that
a regionwise or districtwise selection is per se violative of equal-
ity clause enshrined in Articles 14 and 16 of the Constitution. It
would be discriminatory only when the person, who alleges dis-
crimination, demonstrates certain appreciable disadvantages, B
·' qua similarly situated persons, which he would not have faced
but for the impugned State action. Therefore, the onus was on
)"
the writ petitioners to show by cogent material that by resorting
to regionwise selection, they were placed in some disadvanta-
geous position as compared to their counterparts or that in this c
process merit was the casualty.
35. In the present case, neither Section 10 of the Principal
Act nor any other statutory provision forbids regionwise selec-
tion. Besides, no restriction was imposed upon the candidates
insofar as their choice for the regions was concerned. An eli- D
gible candidate could apply in any of the regions and his appli-
cation was to be considered in accordance with the Rules. It
has neither been pleaded nor can it be held that the right of any
eligible candidate to apply in a particul<H zone was curtailed or
that an equal opportunity to compete had been denied to the E
respondents. It is not even the case of the respondents that a
less meritorious candidate has been selected on account of
regionwise selection. The ratio of the decisions, relied upon by
.. learned counsel for the respondents is not attracted to the facts
- of the present case. In the aforenoted decisions, zonewise, F
districtwise and unitwise allocation of seats and/or preparation
of separate merit list for each zone in respect of candidates
who appeared at the centres within the same zone were held to
be discriminatory on the ground that by resorting to these pro-
cedures, the objective of selecting the best possible candidates
G
was defeated. In all these cases, the petitioners had success-
..,
fully demonstrated that as a result of zonewise or districtwise
allocations, more meritorious candidates were denied admis-
sions/employment and candidates with low merit were selected,
which is not the case here. As noted above, in the present case
H
162 SUPREME COURT REPORTS (2008] 9 S.C.R.
A the respondents have neither pleaded nor placed on record any
material to show that as a result of regionwise selection they
have not been selected despite the fact that they were more
meritorious as compared to the selected candidates. In our opin-
ion, therefore, the selection process cannot be struck down as
B violative of the principles enunciated in Articles 14 and 16 of
the Constitution.
36. It was then argued by learned counsel for the respon-
dents that Section 33C inserted by the Amending Act is wholly
arbitrary, illegal and discriminatory inasmuch as though it had
C been enforced with effect from 20th April, 1998, it provided for
regularization of only such ad-hoc Principals who had been
appointed on or before 6th August, 1993. According to the
learned counsel, the said cut off date is arbitrary and discrimi-
natory as there is no nexus or relationship with the object sought
D to be achieved i.e. regularization of ad-hoc Principals as it would
exclude ad-hoc Principals who had been appointed after 6th
August, 1993 and prior to 20th April, 1998, the date of enforce-
ment of the said provision. It was also pointed out that by the
aforementioned provisions of regularization incorporated in the
E Principal Act by the Amendment Acts of 1993 and 1991, all ad-
hoc Principals, who were working on the date of enforcement
of those Amendment Acts were regularized whereas in the in-
stant case a gap of five years had been left between the cut off
date and the enforcement of the Amendment Act, which accord-
F ing to the learned counsel, is wholly unreasonable and arbitrary.
It was then pleaded that the cut off date of 6th August, 1993
deserves to be struck down and all Principals who were work-
ing on ad-hoc basis up to the date of enforcement of Section
33C are entitled to be regularized.
G 37. We are unable to persuade ourselves to agree with
learned counsel for the respondents. Admittedly, Section 33C ,.
of the Principal Act was inserted with effect from 20th April, 1998
providing for the regularization of ad-hoc Principals who had
been appointed by promotion on or after 31st July, 1988 but not
H later than 6th August 1993, in accordance with Section 18 of
BALBIR KAUR & ANR. v. U.P. SECONDARY 163
EDUCATION [D.K. JAIN, J.]
the Principal Act, which pertained to ad-hoc appointments. A
Section 16 of the Principal Act which contemplates that all ap-
pointments will be made through the Selection Board, was sub-
stituted by the 1993 Amendment Act and was enforced with
effect from 7th August, 1993. It prohibited appointments of teach-
ers and heads of the institutions, except on the recommenda- B
tion of the Commission. However, by virtue of Section 1(2) of
the 1993AmendmentAct, the date of enforcement of the Amend-
ment Act was left to the State Government and it was by virtue
of Notification dated 7th August, 1993 that the State Govern-
ment prescribed 7th August, 1993 as the date on which the c
Amendment Act except Section 13 thereof was to come into
force. Though Section 18 was reintroduced by the 1995 Amend-
ment Act with certain conditions yet the Legislature fixed 6th
August, 1993 as the cut off date as the State Government had
decided to make regular selections and steps in that behalf D
had already been initiated. Thus, it cannot be held that fixing of
6th August, 1993 as the cut off date for regularization is arbi-
trary or whimsical, warranting interference by the Court. More-
over, the State is not obliged to regularize all ad-hoc appoint-
ments merely on the strength of their continuance on the post
for a long period, particularly when their original appointments E
were not made by following a due process of selection as en-
visaged in the relevant rules. (See also: Secretary, State of
Kamataka & Ors. Vs. Umadevi (3) &. Ors. 21 )
38. In view of the aforegoing discussion, the appeals are F
allowed; the judgment of the Division Bench to the extent it has
reversed the decision of the Single Judge is set aside; the de-
cision of the learned Single Judge is restored and as a conse-
quence, the writ petitions filed by the respondents stand dis-
missed.
G
39. Delay condoned.
40. Leave granted.
41. The challenge in these appeals is to the interim or-
ders passed by the High Court in regard to the selection of Prin- H
164 SUPREME COURT REPORTS [2008] 9 S.C.R.
A cipals of various institutions, pursuant to·the advertisements
dated 12th August, 1998, 24th December, 1999 and 3rd March,
2002. In view of our judgment and order in Civil Appeals (Aris-
ing out of SLP (C) Nos.19335-36 of 2003) and other connected
appeals, these appeals are also allowed and the impugned or-
B ders passed by the High Court are set aside.
42. In view of our order in the main appeals, all pending
Applications and Contempt Petitions stand disposed of.
43. No order as to costs.
C SLP (C) Nos.1863-64 of 2004 and SLP (C) No.16502 of
2004
44. These petitions are delinked. Be listed in usual course.
S.K.S. Appeals allowed, Contempt Petitions
disposed of and SLPs (1) Nos. 1863-64
& 16502 of 2004. deliuked.
\•
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