Satyendra Kumar Singh vs State Of U.P. And 3 Others
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Allahabad High Court

Satyendra Kumar Singh vs State Of U.P. And 3 Others on 10 October, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:181294
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
WRIT - A No. - 4067 of 2023   
 
   Satyendra Kumar Singh    
 
  .....Petitioner(s)   
 
 Versus  
 
   State Of U.P. And 3 Others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Devansh Misra, Mohd Shere Ali, Sanjay Kumar Mishra, Shailesh Kumar Shukla   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Ashok Kumar Maurya   
 
     
 
 Court No. - 27
 
   
 
 HON'BLE SIDDHARTH NANDAN, J.      

1. Heard Shri Devansh Mishra, learned counsel for the petitioner as well as Shri L.M. Singh, learned Standing Counsel for the State-respondents and perused the record.

2. By way of aforesaid writ petition, the petitioner has challenged the order dated 08.01.2022 passed by respondent no.2 which has been passed on the premise that on account of the Government Order dated 31.10.2019, by way of which in consideration of the proposed amendment to the Rules 1978, the Government has taken a decision not to finalize the selection process which was already underway and further not to undertake any new selection process.

3. I have perused the impugned order dated 08.01.2022, wherein in view of the amendment to the Rules 1978, the selection process has been nullified on the ground that since the approval has not been granted, therefore, payment of salary to the petitioner on the post of Assistant Teacher cannot be made.

4. Learned counsel for the petitioner has argued that institution in question has received grant-in-aid from the State exchequer up to junior high school under the provisions of U.P. Junior High School (Payment of Salaries to Teachers and Other Employees) Act, 1978. The Committee of Management i.e. respondent no.4 passed a resolution authorizing the Manager to initiate the appointment as against the substantive vacancies which have fallen vacant. The Manager of the institution sought permission as required under the 1978 Rules vide its letter dated 28.09.2018 to fill up the vacant posts of Asst. Teachers, which was also granted by the respondent no.2. The vacancies were advertised in two widely circulated newspapers namely Rashtriya Sahara and Swatantra Chetna in its edition dated 17.10.2018. The petitioner, being eligible and having the requisite qualification, had applied for the said post and the selection committee was constituted including the nominee/observer of the respondent no.2, who was appointed by order dated 12.11.2018. The said selection committee proceeded, and in pursuance of the interview which was held on 21.11.2018 forwarded the selection for approval to respondent no.2 on 05.12.2018, which was duly received in the office of respondent no.2. In paragraph no.4 of the counter affidavit, it has been admitted that the documents dated 05.12.2018 was duly received in the office of District Basic Education Officer, Maharajganj on 06.12.2018.

5. Learned Standing Counsel has pointed out that letter dated 03.01.2019 was sent by the District Basic Education Officer, Maharajganj indicating some anomalies in the record.

6. In response, learned counsel for the petitioner has submitted that the anomalies indicated in the letter dated 03.01.2019 was made good by the Committee of Management. However, subsequently since the salary was not being released, the petitioner has approached this Hon?ble Court by way of filing the present writ petition with the following reliefs:

?(I). Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 08.01.2022 passed by the respondent no. 2 (Annexure No. 15 to this writ petition).

(II). Issue a writ, order or direction in the nature of Mandamus directing the respondents to make the payment of salary to the petitioner on the post of Assistant Teacher since the joining of petitioner in the institution forthwith.?

7. A short controversy which is involved in the aforesaid writ petition is that once the selection process has been initiated and in the facts of the present case, it is also evident that the same was completed subject to the approval being granted by the respondent no.2, then in between, whether the issuance of the Government Order dated 31.10.2019 by way of which the entire process was stalled by the Government, including the one which was in process can be justified or not?

8. Though, learned counsel for the petitioner has relied upon Rule 10 (5)(3) of Rules 1978 wherein it has been provided that if the District Basic Education Officer does not remit the matter back within one month, thereafter the Committee of Management can issue appointment letter on the basis of deemed approved, but in view of the order which is proposed to be passed, I need not get into the said controversy.

9. Since, in the impugned order the stand of the respondents are based on the Government Order dated 31.10.2019 and the subsequent amendment to the Rules 1978, the question which is to be determined by this Court is that once the rules of the games have been set and the process has been initiated, then as to whether during the process, the rules can be changed. In the present case, admittedly, the amendment came into place much subsequent to the initiation of the process while the selection process has concluded subject to the approval. The approval has not been granted on account of the Government Order dated 31.10.2019 and, consequentially, vide order impugned order dated 08.01.2022, eventually the salary has also been denied, which is the subject matter of the challenge in the present writ petition. Learned counsel for the petitioner has relied upon the judgment dated 25.04.2022 passed in Writ-A No. 7090 of 2021 (Smt. Indrakala Singh Vs. State of U.P. and 3 Others) in which the very same Government Order dated 31.10.2019 was under consideration.

10. I have perused the judgment and the controversy involved in Smt. Indrakala Singh (supra) which is identical to the controversy involved in the present case. The Hon?ble Court has held relying upon the judgment in the case of Committee of Management Adarsh Janta Madhyamik Vidhyalaya and Another Vs. State of U.P. in Writ-A No. 10509 of 2019 that the process of selection initiated prior to the date of issuance of the Government Order will not come in the way of approval of such appointment and proceeded to quash the impugned order therein by way of which the grant of approval relying on the Government Order dated 31.10.2019 was rejected. That furthermore, in Special Appeal No. 136 of 2023 (District Basic Education Officer and Others Vs. Committee of Management, Karwal Devi Kanya Laghu Madhyamik Vidhyalaya Karwal and Another), Division Bench of this Court, relying upon the Full Bench in Santosh Kumar Singh Vs. State of U.P. and Others, 2015 (5) AWC 4719 (D.B.), has reiterated a similar view, which has been taken by the learned Single Judge in the case of Smt. Indrakala Singh (supra) and had held that the subsequent amendment would not affect the validity of the selection process already initiated. For ready reference, paragraph nos. 9, 10, 11, 12, 13, 14 and 15 of the Santosh Kumar Singh (supra) are being quoted herein below:

"9. The decision in A.A. Calton (supra) is, therefore, an authority for the proposition that once a process of selection has been initiated, a subsequent amendment of the law by which the power to make an appointment has specifically been taken away from a statutory authority - in that case from the Director - would have no application to a pending selection process which must be governed by the law as it stood when the selection process was initiated. Undoubtedly, the Legislature does have the power to make a law with retrospective effect but unless the law is made expressly retrospective or retrospective by necessary implication, the position of law as it stood when the selection process was initiated, would govern the selection.

10. In certain other contexts, the Supreme Court has held, for instance, that a selection process has to be governed by the Rules and Government Orders in existence on the date on which the process is initiated. In N.T. Bevin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157, the Supreme Court held as follows:

"...Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended Rules or the amended Government orders, issued in exercise of its statutory power either by express provision or by necessary intendment indicate the amended Rules shall be applicable to the pending selections. See P. Mahendran v. State of Karnataka, (1990) 1 SCC 411 : JT (1989) 4 SC 459."

11. In State of Bihar v. Mithilesh Kumar, (2010) 13 SCC 467, the Supreme Court held that a change in the norms of recruitment could be applied prospectively and could not affect those who have been selected for being recommended for appointment after following the norms which were in place at the time when the selection process was commenced. The submission to the contrary was based on the decision in Shankarsan Dash v. Union of India, AIR 1991 SC 1612, to the effect that mere inclusion in a select panel did not confer indefeasible right to appointment. The Supreme Court explained the position in law as follows:

"The decisions which have been cited on behalf of the respondent have clearly explained the law with regard to the applicability of the rules which are amended and/or altered during the selection process. They all say in one voice that the norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect...While a person may not acquire an indefeasible right to appointment merely on the basis of selection, in the instant case the fact situation is different since the claim of the respondent to be appointed had been negated by a change in policy after the selection process had begun."

12. In a subsequent decision in Government of Andhra Pradesh v. Sri Sevadas Vidyamandir High School, (2011) 9 SCC 613, the Supreme Court held that a ban on recruitment to grant-in-aid posts had been issued after the school in question had been permitted by the State to fill up vacant posts. The Supreme Court held that in these circumstances, the State could not contend that the process of rationalization which was introduced subsequently, would also apply to private aided schools, where the process of recruitment had already been commenced pursuant to the approval granted earlier.

13. The judgment in A.A. Cotton (supra) has been recently followed in a decision of the Supreme Court in Kulwant Singh v. Daya Ram, (2015) 3 SCC 177, in the context of the principle that vacancies which had occurred prior to an amendment of rules would be governed by the un-amended rules and not by the amended rules where the amended rules are not made retrospective either expressly or by implication.

14. The judgment of the Division Bench in Subhash Chandra Tripathi's case was based on the law laid down by the Supreme Court in A.A. Cotton (supra). In the referring judgment, the Division Bench has doubted the correctness of that view based on a judgment of the Supreme Court in Shankarsan Dash (supra). In the view of the Division Bench, the Supreme Court has held that even a selection does not confer a right of appointment. Hence, the view which has been taken by the Division Bench is that a mere initiation of the process of selection will not result in the retention of the power of appointment by the authority concerned even when the power of appointment had been withdrawn under a statutory provision, in this case Section 33-E. The decision in Shankarsan Dash (supra) of a Constitution Bench of the Supreme Court dealt with the issue as to whether a candidate whose name appears in the merit list on the basis of a competitive examination acquires an indefeasible right of appointment as a Government servant merely because a vacancy exists. In that context, the Supreme Court held as follows:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 : (AIR 1973 SC 2216), Miss Neelim Shangla v. State of Haryana, (1986) 4 SCC 268 : AIR 1987 SC 169, or Jitendra Kumar v. State of Punjab, (1985) 1 SCR 899 : AIR 1984 SC 1850."

15. These observations of the Supreme Court would indicate that the issue in Shankarsan Dash (supra) was completely distinct. A candidate who is on a select list does not have an indefeasible right to appointment merely because a vacancy exists. That is not the issue in the present case. The issue in the present case is whether a process of selection which was initiated prior to the insertion of Section 33-E which rescinded the Removal of Difficulties Orders must be governed by the law as it then stood at the time when the process was initiated by the issuance of an advertisement. Plainly, the issue is not about the right of a particular candidate to appointment but whether the selection process should be governed by the law as it stood when the selection process was initiated. On this aspect, the consistent position of law has been laid down in the judgment of the Supreme Court in A.A. Cotton (supra)."

11. At this stage, learned counsel for the petitioner has brought to the attention of this Court that initially a direction was issued by the Additional Chief Secretary stalling the on going process of selection, in anticipation of amendment to the Rules of 1978; and, subsequently the State Government, vide its order dated 26.9.2019 and 31.10.2019, had imposed a ban on the selection and appointments of Assistant Teachers in non-government aided junior high schools. Later on, the State Government, in exercise of their powers under Section 19(1) of the Uttar Pradesh Basic Education Act, 1972 (for short, 'the Act of 1972'), issued a notification dated 04.12.2019, notifying the 7th Amendment Rules, amending the Rules of 1978. The 7th Amendment Rules, was enforced w.e.f. 04.12.2019, withdrawing the power of selection from the Managements of non-government aided junior high schools, vesting it in a Selection Board, constituted under the last mentioned Rules.

12. In these circumstances the Government Orders dated 26.09.2019 and 31.10.2019 are to be examined and to be determined whether on the strength of the said government orders the ongoing ongoing selections which were initiated prior to the 7th Amending Rules, could have been stopped or cancelled. It is not disputed that the two government orders dated 26.09.2019 and 31.10.2019 were issued much after the selection process was over. The decision of a Full Bench of this Court in Santosh Kumar Singh (supra) has already clarified that the selection process commenced under the existing Rules remains unaffected by any change or amendment to the Rules, unless the amended rules, expressly or by necessary implication, have retrospective effect.

13. A perusal of the 7th Amendment to the Rules, 1978 demonstrates that by virtue of Sub-Rule (2) of Rule 1, the said amendment is to come into the effect from the date of publication in the gazette and there is nothing to show that the amended Rules, either expressly or by necessary implication, is to be given effect retrospectively. Accordingly, the 7th Amendment Rules cannot be said to effect the selection process for the post of Assistant Teacher of the institution commenced much earlier to the coming into the effect of the new regime under the 7th Amendment Rules. It is not disputed that the entire selection process with respect to the appointment of the petitioner was prior to the coming into effect of the 7th Amendment Rules and admittedly, the petitioner had also joined the institution in question on 07.01.2019 as Assistant Teacher (English) and is continuing to work as such.

14. At this stage, the learned Standing Counsel has vehemently urged that the selection process cannot be said to be completed till an approval is granted by the competent authority and he has tried to buttress his argument by stating that since the approval was not granted, therefore, the selection has been cancelled by the Government Order dated 31.10.2019. However, I have perused the Government Order dated 31.10.2019 which merely states that the selection process is being deferred and does not state that the same is being cancelled. There is clearly a difference between deference and cancellation and, accordingly, the said argument is only noted to be rejected.

15. In view of the aforesaid facts and the settled law, I find that impugned order dated 08.01.2022 cannot be sustained in the eyes of law and the same is, accordingly, being set aside.

16. In view of the aforesaid, the following direction is being issued:

(i) Respondent no.2 is directed to consider the documents pertaining to the selection process which was forwarded by the respondent no.4 for approval and, in case, there is any anomaly remaining, he shall make an endeavour to seek the same from respondent no.4 and respondent no.4 is also directed to take immediate steps transmitting the document, if any, required by respondent no.2; following which the decision on approval of the selection may be taken within a reasonable time, if possible, within a period of one month from the date of clarification, if any, received from the respondent no.4 and the consequential orders pertaining to the release of salary may also be passed.

17. With the aforesaid observations and direction, the aforesaid writ petition is allowed.

(Siddharth Nandan,J.)

October 10, 2025

Sumit K.