Holding

Section 9(a) of the U.P. Act, 1982 and Rule 12(3) of the 1995 Rules are constitutionally valid, the interview‑based selection is not arbitrary, and the panel of 15 April 1997 was lawfully prepared, rendering the State Government’s notification ineffective.

Summary

The Supreme Court examined the validity of Sections 9, 10 and 11 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 and Rule 12(3) of the 1995 Rules, which prescribe selection of principals and headmasters solely by interview. The appellants challenged the selection process as an unconstitutional delegation of essential legislative functions and as arbitrary because interview alone was used and marks were not allocated separately for each evaluation item. The Court held that the legislature merely delegated the preparation of guidelines to an expert commission, which does not amount to an excess of delegation, and that interview‑based selection with overall evaluation is not arbitrary. It also found the panel of selected candidates dated 15 April 1997 was prepared before the government notification of 17 April 1997 and that the notification itself was not binding on the commission. Consequently, the High Court’s findings were affirmed and the appeals were dismissed, with the court leaving any pending regularisation claims to be considered by the Director of Education.

Issues considered

The constitutionality of delegating the power to prepare recruitment guidelines to the Commission under Section 9(a) of the U.P. Act, 1982.
Whether selection of principals/headmasters solely by viva‑voce interview under Rule 12(3) of the 1995 Rules is arbitrary or illegal.
Whether the panel of selected candidates dated 15 April 1997 was prepared before the State Government's notification of 17 April 1997 and the effect of that notification.
The validity of the State Government’s notification issued under Section 2 of the Uttar Pradesh State (Control Over) Public Corporation Act, 1975.
The entitlement of ad‑hoc principals/headmasters to regularisation under Sections 33‑A(l‑A) and 33‑C(1)(a)(ii) of the U.P. Act.

Legislation cited

Uttar Pradesh Intermediate Education Act, 1921s. 3, s. 6
Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982s. 10, s. 11, s. 35, s. 9(a)
Uttar Pradesh State Control Over Public Corporation Act, 1975s. 2

Subjects

Service LawSelection by InterviewDelegation of Legislative FunctionsAdministrative LawRegularisation of Ad‑hoc AppointmentsUttar Pradesh Education ServiceArbitrarinessStatutory Rules

Judgment

A KIRAN GUPTA AND ORS. ETC. ETC.
v.
STATE OF U.P. AND ORS. ETC.

SEPTEMBER 28, 2000

B [SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]

Service Law

UP. Secondary Education, Services Commission and Selection Boards
C Act, 1982-Section 9(a)-Validity of-Held provisions do not suffer from the
vice ofexcessive delegation of essential legislative functions-UP. Secondary
Education Service Commission Rules, 1995-Rule 12(3)-Selectionfor posts
of Principals and Headmasters-Exclusively by interview after scrutiny and
awarding quality points-Held neither arbitrary nor illegal.
D
Mode of Selection by interview-Allotment of marks-Assessment on
various heads as per guidelines framed by Secondary Education Services
Commission-Non-Allocation of separate marks for each item qnd awarding
marks in lump sum-Held, does not vitiate. the selection.

E Administrative Law.

Mala fides-UP. State Control Over Public Corporation Act, 1975-
Section-2-Notification issued restraining further selection from I 7.4. 1997-
Select list despatched -by the Service Commission on 15.4. 1997 received by
F Regional Deputy Director on 20.4.1997-Allegation that select list
antedated-Held, in the absence of any incontrovertible and irrefragable
material such allegation is unsustainable.

In 1982, U.P. Secondary Education Services Commission and Selection
Boards Act, 1982 (U.P. Act No. 5 of 1982) was enacted, which required the
G management of all schools to appoint teaching staff only on recommendation
by the Commission. Under Section 35 of the Act, the State Government was
given the power to make rules. The Government enacted the U.P. Secondary
Education Services Commission (Amendment) Rules, 1995. Rule 12 deals
with the procedure for direct recruitment of Teachers, Principals/Headmasters
H and Lecturers. The Commission is required to call for interview five
474
KIRAN GUPTA v. STATE 475
candidates for each vacancy on the basis of the quality points secured by them. A
The State of U.P. which had 1504 vacancies of teachers, Principals/
Headmasters, issued an advertisement inviting applications from eligible
persons to appoint suitable candidates. After short-listing the applicants, 7,500
500 candidates were called for interview and selection for the posts of
Principals/Headmasters of 13 regions, including the Meerut region, was B
completed. There were 258 posts in Meerut region and out of them interviews
were held for 253 posts. The selection of Principals/Headmasters in Meerut
region, based on oral interview and the panel of selected candidates were
challenged by the unsuccessful candidates who were senior most teachers,
in the High Court. C
The High Court upheld the constitutional validity of Sections 9, 10 and
11 of the U.P.. Secondary Education Services Commission and Selection
Boards Act, 1982 as amended by U.P. Act of1995 and also Rule 12 of the U.P.
Secondary Education Services Commission (Amendment) Rules, 1995 ('the
1995 Rules'). The selection of candidates by the U.P. Secondary Education D
Services Commission (for short 'the Commission') and the notifications issued
on August 3, 1996 and August 30, 1996 were found to be valid. The panel of
selected candidates prepared on April 15, 1997 was held not vitiated by the
notification issued by the Government of U.P. on April 17, 1997 and it was
directed that the same should be implemented by the educational authorities
in accordance with law; it was left open to the Director of Education, and if so E
ordered by him, to the Deputy Director of Education to inquire into the
requisite qualifications of the selected candidates; if it was found that the
requisite qualifications for the post of Principal/Headmaster were not
possessed by any of the selected candidates, the Director of Education/Deputy
Director of Education shall, determine the question and thereafter refer it to F
the Board which was directed to reconsider his selection after giving due
opportunity to the candidate and for that limited purpose the matter should be
deemed to be pending before the Board under the provisions of sub-section
(6) of Section 3 of the U.P. Intermediate Education Act, 1921 ('the Act') as
amended by the U.P. Act No. 25of1998.
G
The High Court took the view that their claims must have been settled
under sub-section (l·A) of Section 33-A of Act No. 5of1982 long before the
cut-off date (April 6, 1991). It was observed that if any dispute with regard to
any individual claim under the said provision is pending before the authority,
such claim might be considered. With regard to the claim based on Section
33-C(l)(a)(ii), on the basis that some of them were appointed prior to August H
476 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A 7, 1993 and therefore they are entitled to be regularised, the High Court
opined that the provisions of Section 33-C came into force on April 20, 1998,
long after the vacancies were notified to the Commission and in respect of
which the selection had already been completed by that date, and therefore, in
view of sub-section (6) of Section 33-C their claim did not survive.

B In appeal to this Court, the appellants contended that by Sections 9 and
10 ofU.P. Act No. 5of1982, the essential legislative functions of laying down
guidelines have been assigned to the Commission, that inasmuch as Rule 12
of the 1995 Rules prescribes selection of suitable candidates by oral interview
without laying down any criteria, the said provisions are illegal and
C unconstitutional and are liable to be struck down, that even assuming that
the impugned provisions ofU.P. Act No. 5of1982 and Rule 12 (3) are valid,
the process of selection by interview alone confers arbitrary power on the
Commission; that allotment of 15 per cent of the total marks for interview, is
arbitrary, so the selection made s~lely on the basis of viva voce was a fortiori
illegal, that the vice in sub-rule (3) is it mandates selection of candidates only
D by interview, that there is no provision for comparison of educational
qualification, administrative experience, service record and character roll
without which selection solely on the basis of interview will be arbitrary and
that in the guidelines framed by the Commission no separate marks are
allocated for each of the seven items and the members of the Commission did
E not award separate marks under each item and therefore the selection was
arbitrary and liable to be set aside; that in view of wide spread allegations of
favouritism and arbitrariness in the selection and preparation of panel of
selected candidates, the State Government issued a notification under Section
2 of the Uttar Pradesh State Control Over Public Corporation Act, 1975 (Act
41/75) on April 17, 1997, directing the Commission not to take any steps to
F make selection by direct recruitment of the candidates for being appointed as
teachers including Principals/Headmasters and not to prepare any panel of
candidates after the date of the notification; The Commission ante dated the
panel as ifit was prepared on April 15, 1997. That panel was received by the
Regional Deputy Director of Education on April 20, 1997 and that, it would
G show that the panel was not prepared before the date of the notification, that
in the interests of justice, this Court might peruse the original records of
interview and preparation of panel and determine its validity, that their claim
for regularisation in the posts in which they have been working as ad hoc
Principals/Headmasters, may be ordered, and that indeed they stood
regularised under Section 33-A (1-A) of Act No. 5of1982 Act as amended in
H 1991 read with Section 33-C (1) (a) (ii) and (c).
KIRAN GUPTA v. STATE 477
The Respondents-selected candidates contended that there is no A
delegation of essential legislative functions by the Legislature under Sections
9 and 10 ofU.P. Act No. 5of1982, that preparation of guidelines in regard to

...
method of recruitment by the Commission which consists of experts, the most
competent body, is a matter of giving effect to the legislative policy, that under
Rule 12 (3) of the 1994 Rules, (i) the Government rightly prescribed selection
by interview for appointment of the in service teachers, at the fag end of their B
service career, to the posts of Principals/Headmasters, and (ii) the selection
was entrusted to an expert body, well-informed on the subject and whose
opinion in regard to selection of the candidates, in the absence of allegation
of malafide, would be proper and legal and that a written test in such cases
would be the most inappropriate method; that the scheme for selection of the C
candidates, required awarding quality points for academic qualifications,
training, administrative experience, etc. and it was on the basis of the marks

... secured by them that they were short-listed and called for interview for judging
their personality keeping in view the seven factors specified in the guidelines
by the Commission and thus, there was nothing arbitrary or illegal in the
selection process, having regard to the items specified in the guidelines D
awarding of separate marks under each item would lead to most undesirable
consequences and even disastrous results, that in such cases overall
evaluation alone is the best method and that was adopted by the Commission,
and that merely because the panel of April 15, 1997 was not sent through the
inspector but was sent directly and was received by the Regional Deputy E
Director on April 20, 1997 it could not be concluded that the panel was ante-
dated.

The Commission submitted that after the date of the notification, no
panel was prepared and that the preparation of panel was completed and it
was despatched from Allahabad on April 15, 1997 before the date of the said F
notification and that no adverse inference could be drawn on the ground that
it was received at Meerut by the Regional Deputy Director on April 20, 1997.
The register of despatch was placed before Court to show that the panel was
despatched on April 15, 1997 itself. The Secretary of the Commission
produced the original panel and the original records of interviews conducted G
by the Coinmission •
...
Dismissing the Appeal, the Court

HELD: 1. That Section 9(a) of U.P. Act No. 5of1982 is vaJid since
there is no delegation of essential legislative function. It is too late in the day H
478 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A to question the delegation of legislative functions to the Government or a
subordinate authority. However, what cannot be delegated is essential
legislative functions. The Legislature has constituted a Commission w~ich
is a statutory body consisting of experts and left the question as to how it
should proeeed with the method of recruitment and promotion of Teachers to
B the posts of Principals/Headmasters to that Commission. A plain reading of
clause (a) of Section 9 shows that the'legislature has delegated the power of
preparation of guidelines on matters relating to the method of recruitment to
the Commission which is in sphere of effectuation of the legislative policy
rather than in the realm or laying down a legislative policy. (486-A-E-F]

C In re The Delhi Laws Act, 1912 (1951) SCR 747 and The Ajmer-Merwara
(Extension of Laws) Act, 1947 v. The Part C States (Laws) Act, 1950; (1951]
SCR 747, referred to.

i .;\. bare reading of Section 4 makes it evident that the Commission
was composed of members of whom one member was having a position of
D eminence in judicial services and the other members were experts in the field
of education. Inasmuch as the Commission was an expert body and it was
entrusted with the duty of selection of Teachers, Principals/Headmasters, it
would be the most competent body to lay down guidelines on matters relating
to method of recruitment and promotion of teachers to the posts of Principals/
E Headmasters. Indeed laying down of guidelines by the Commission in such
matters when it is so authorised by an Act of the legislature or by statutory
Rules is a well accepted princ'iple and no exception can be taken to it•.
(487-E-F]

Dr. Krushna Chandra Sahu and Ors. v. State of Orissa and Ors., (1995]
F 6 sec 1, referred to.

3. It cannot be said that selection on the basis of viva voce only is
arbitrary and illegal and that since allocation of 15% marks for interview
was held to be arbitrary by this Court, selections solely based on interview is
G a fortiori illegal. It will be useful to bear in mind that there is no rule of
thumb with regard to allotment of percentage of marks for interview. It depends
on several factors and the question of permissible percentage of marks for ·
an interview and test has to be decided on the facts of each case. However, the
decision of this Court with regard to reasonableness of percentage of marks
allotted for interview in cases of admission to educational institutions/schools
-
H will not afford a proper guidance in determining the permissible percentage
KIRAN GUPTA v. STATE 479

.;
·· of marks for interview in cases of selection/appointment to the posts in various A
services. There is no illegality in Rule 12 (3) of the 1995 Rules providing for
selection of suitable candidates based on their performance in the interviews
for appointment to the posts of Principals/Headmasters. [490-E-F; 492-HJ

Shri Janki Prasad Parimoo and Ors. v. State ofJammu & Kashmir and
Ors., (1973) 1 SCC 420; Lila Dhar v. State of Rajasthan and Ors., (1981) 4 B
SCC 159; Dr. Keshav Ram Pal v. U.P. Higher Education Services Commission,
Allahabad & Ors., [1986) 1 SCC 671; Periakaruppan v. State ofT.N., (1971)
1 SCC 38; Ajay Hasia v. Khalid Mujib Sehravardi, [1981) 1 SCC 722; Anzar
Ahmad etc. v. State of Bihar and Ors. etc., (1994) 1 SCC 150; A.P. State
Financial Corporation v. C.M Ashok Raju and Ors., (1994) 5 SCC 359 and
Siya Ram v. Union of India and Ors., (1998) 2 SCC 566, referred to.
c

- 4. Items mentioned in the guidelines are various aspects which have to
be kept in mind in evaluating a candidate for his suitability and fitness for
being appointed as Principals/Headmasters of a institution/school. There is
no illegality in the procedure of overall evaluation of the candidate without
fixing marks for each of the items noted above, adopted by the Commission,
D
and on this ground the Court is not inclined to hold that the selection is
arbitrary. (494-C)

Dr. Keshav Ram Pal v. U.P. Higher Education Services Commission,
Allahabad & Ors., (1986) 1 SCC 671, referred to. E
5. On examination of the original lists from the records of interview, it
") appears that the selection of the candidates took place between November 1996
and February 1997 but it was communicated by the Commission at Allahabad
to various educational authorities including the Regional Deputy Director,
Meerut on April 15, 1997. The laxity with which an office generally functions F
should neither be a matter of any surprise for panel of selected candidates of
April 15, 1997 from Allahabad to reach the Regional Deputy Director of
Education, Meerut on April 20 nor could it furnish any basis to make an
allegation of ante dating. In view of this finding, it is unnecessary to go into
the other questions as to the validity of the notification and its effect on the
panel of candidates dated April 15, 1997. On scrutiny of the records, the Court
G
is satisfied that the allegations of malpractice and illegality in respect of
selection and empanelling are baseless and untenable. [496-H; 497-A-B)

6. A perusal of sub-section (1-A) of Section 33-A discloses that to attract
the provisions of this sub-section the teacher which includes Principals/ H
-.
480 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Headmaster should fulfil the following conditions : (i) he must have been
appointed on ad hoc basis against a substantive vacancy; (ii) his appointment
should have been made in accordance with para 2 of the Uttar Pradesh
Secondary Education Services Commission (Removal of Difficulties) Order
1981, as amended from time to time; (iii) he must possess the qualification
prescribed under the provisions of the Act or he should be exempted under
B the provisions of the said Act, and (iv) he should have been continuously
serving in the institution/school from the date of his ad hoc appointment till
the date of commencement of the Uttar Pradesh Secondary Education Services
Commission and Selection Boards (Amendment) Act, 1991. As individual

C
particulars of the appellants on these aspects are not available, the observation
by the High court that if any such cases are pending the same may be examined
and appropriate order be passed in accordance wit.h the terms of the said
provisions is correct. If any of the Appellants makes a claim under these
--
D
provisions within three months of this judgment to the Director of Education,
the same shall be considered within three months from the date of receipt of
such representation and the result be communicated in writing to the candidate.
(500-D-F)
-
7. Insofar as claim based on Section 33-C(l)(a)(ii) is concerned, the

-
candidate has to show that the following conditions are satisfied: (i) a teacher
was appointed by promotion on ad hoc basis in the post of Principal/
Headmaster; (ii) the appointment by promotion was made on or after July 31,
E 1988 but not after August 6, 1993; (iii) though the appointment was an ad
hoc appointment, it was against a substantive vacancy; (iv) the appointment
was in accordance with Section 18 of U.P. Act No. S of 1982; and (v) the
appointee has been continuously serving in the institution/school from the
date of such appointments upto the date of commencement of Uttar Pradesh
F Secondary Education Services Commission (Amendment) Act, 1998 (i.e. April
20, 1998). Even if an incumbent satisfies all these conditions, his right will
be defeated by sub-section (6) of Section 33-C if on April 20, 1998 such
vacancy has already been filled or selection for such vacancy has been made
in accordance with the U.P. Service and Selection Board Act, 1982. The
particulars of the Appellants who claim to fulfil these requirements are not
G available, therefore, it shall be left open to the Director of Education who shall
look into the claims made under this provision. (500-G-H; 501-A-B)
The Court observed that the regularisation of the candidates under
Section 33-C(l )(a)(ii) is made to depend on a mere chance of a substantive
vacancy either being filled in or the selection for that vacancy being completed,
H there may still be cases where the posts of Principals/Headmasters may be
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.] 481

lying vacant either because the selected candidates did not join or because A
the incumbents having obtained posting of their choice vacated the posts or
for any other reasons the posts might have fallen vacant and in all such cases
the benefit of Section 33-C(l)(a)(ii) has to be given to the ad hoc appointees.
A similar direction was issued in cases of claims based under Section 33-
A(l-A) of the said Act.] [501-D]
B
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5579-5582 of
2000.

From the Judgment and Order dated 6.10.98 of the Allahabad High Court
) in S.A. Nos. 24897, 18350, 35995/97 and 31115of1996.
c
WITH
Civil Appeal Nos. 5583-90 of 2000

P.K. Goswami, R.B. Mahrotra, Subodh Markandeya, Kailash Vasdev,
Ms. Vanita Sahni, Pramod Dayal, B.M. Sharina, Yash Pal Dhingra, Shrish D
Kumar Misra, T.N. Singh, E.C. Vidya Sagar, S.A. Syed, Ms. Chitra Markandeya,
Ms. Feroze Bano, R.B. Misra, RC. Kaushik, H.K. Puri, Anil K. Chopra, Dinesh
Kumar Garg, C.L. Sahu, Ranbir Yadav, Naresh Kumar, K.L. Janjani and Sudhir
... Kumar Gupta for the appearing parties .

The Judgment of the Court was delivered by E
SYED SHAH MOHAMMED QUADRI, J. Leave to file appeal is granted
in all the Petitions for Special Leave.

The common judgment and order of a Division Bench of the High
Court of Judicature at Allahabad in a batch of writ petitions and special F
appeals delivered on October 6, 1998 is under challenge. The unsuccessful
writ petitioners are the appellants in these appeals. The controversy in the
writ petitions as also in these appeals relates to the selection and appointment
of Principals/Headmasters of various recognised private aided intermediate
colleges and secondary schools in Uttar Pradesh and other allied matters.
G
The conclusions reached by the Division Ben~h of the High Court, in
the impugned judgment, may be summarised as follows :

(l) the constitutional validity of Sections 9,10 and 11 of the U.P.
Secondary Education Services Commission and Selection Boards
Act, 1982 (for short, 'U.P. Act No. 5 of 1982') as amended by U.P. H
482 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Act No. 15 of 1995 and also Rule 12 of the U.P. Secondary
Education Services Commission (Amendment) Rules, 1995 (for
short, 'the 1995 Rules'), was upheld;

(2) the selection of candidates by the U.P. Secondary Education
Services Commission (for short, 'the Commission') and the
B notifications issued on August 3, 1996 and August 30, 1996 were
found to be valid;
(3) the panel of selected candidates prepared on April 15, 1997 was
held not vitiated by the notification issued by the Government
ofU.P. on April 17, 1997 and it was directed that the same should
c be implemented by the educational authorities in accordance with
law; and
(4) it was left open to the Director of Education, and if so ordered
by him, to the Deputy Director of Education to inquire into the
requisite qualifications of the selected candidates; if it is found
D that the requisite qualifications for the post of Principal/Headmaster
were not possessed by any of the selected candidates, the Director
of Education/Deputy Director of Education shall, after giving him
reasonable opportunity of being heard, determine the question
and thereafter refer it to the Board which was directed to
reconsider his selection after giving due opportunity to the
E candidate and for that limited purpose the matter should be
deemed to be pending before the Board under the provisions of
sub-section (6) of Section 3 of the U.P. Intermediate Education
Act, 1921 (for short, 'the Act') as amended by the U.P. Act No.
25of1998.
F The factual matrix in which the aforementioned conclusions are
recorded by the High Court needs to be noticed here.

For educational purposes, the State ofU.P. was divided into 13 regions
which had 1504 vacancies of teachers, Principals/Headmasters, as on December
G 13, 1995 when an advertisement was issued inviting applications from the
eligible persons to appoint suitable candidates. It appears that about one lakh
applicants responded. After short-listing them under the 1~95 Rules, 7,500
candidates were called for interviews and selection for the posts of Principals/
Headmasters of 13 regions, including the Meerut region, was completed. This
-
batch, we are told, relates to selection of Principals/Headmasters in Meerut
H region. There were 258 postS in that region and out of them interviews were
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.) 483

held for 253 posts. The selection of Principals/Headmasters in Meerut region, A
based on oral interview and the panel of selected candidates of April 15, 1997,
were challenged by the unsuccessful candidates by filing writ .Petitions in the
High Court. The validity of the provisions of Sections 9 and I 0 of U.P. Act,
No. 5of1982 and Rule 12 of the 1995 Rules was also questioned. The senior
teachers working as ad hoc Principals/Headmasters, who were not selected,
sought their regularisation under the provisions of U.P. Act, No. 5 of 1982. B
The contesting respondents supported the legality of the impugned provisions
and defended both the procedure adopted and the panel of the selected
candidates prepared by the Commission. The claim for regularisation, it was
pleaded, was unfounded. On these pleas, the High Court recorded the •
aforementioned findings and thus disposed of all the cases by the impugned C
order which gave rise to these appeals.

Mr. l>.K. Goswami, the learned senior counsel appearing for the appellants
in Civil Appeal Nos. 5579-82 of2000 [@ S.L.P. (C) Nos. 19035--38/98], advanced
the following contentions: (i) By Sections 9 & 10 ofU.P. Act, No. 5of1982,
the essential legislative functions of laying down guidelines have been D
assigned to the Commission and that inasmuch as Rule 12 of the 1995 Rules
prescribes selection of suitable candidates by oral interview without· laying

- down any criteria, the said provisions are illegal and unconstitutional 1td are
liable to be struck down; and (ii) even assuming that the impugned provisions
ofU.P. Act, No. 5of1982 and Rule 12(3) are valid, the process of selection E
by interview alone confers arbitrary power on the Commission; he elaborated

- this submission by placing reliance on various decisions of this Court and
asserted that in cases when 15 per cent of the total marks were prescribed for
interview, it was held to be arbitrary so the selection solely on the basis of
viva voce was a fortiori illegal.
F
These and other contentions, which will be referred to presently, urged
by Mr. Goswami were adopted by Mr. P.N. Misra, learned senior counsel, Mr.
Pramod Dayal, Mr. B.M. Sharma, Mr. P.K. Jain, Mr. Shrish Kumar Mishra,
learned counsel appearing for the appellants in the other appeals.

G

-- Mr. Shanti Bhushan, learned senior counsel appearing for the
respondents - selected candidates, has contended that there is no delegation
of essential legislative functions by the Legislature under Sections 9 and 1O
ofU.P. Act No. 5 of 1982; that preparation of guidelines in regard to method
of recruitment by the Commission which consists of experts, the most competent
body, is a matter of giving effect to the legislative policy. He argued that H
484 SUPREME COURT REPORTS [2000) SUPP; 3 S.C.R.

A under Rule 12(3) of the 1995 Rules, (i) the Government rightly prescribed
selection by interview for appointment of the in- service teachers, at the fag
end for their service career, to the posts of Principals/Headmasters, and (ii)
the selection was entrusted to an expert body, well-informed on the subject
and whose opinion in regard to selection of the candidates, in the absence
allegation of mala fide, would be proper and legal and that a written test in
B such cases would be the most inappropriate method. The scheme for selection
of the candidates, submitted the learned counsel, required awarding quality
points for academic qualifications, training, administrative experience, etc. and
it was on the basis of the marks secured by them, that they were short-listed
and called for interview for judging their personality keeping in view the
C seven factors specified in the guidelines by the Commission, thus, there was
nothing arbitrary or illegal in the selection process.

Mr. Subodh Markandeya, learned senior counsel for the State of U.P.,
supported the judgment of the High Court in regard to validity of the impugned
provisions.
D
To appreciate these contentions, it will be necessary to refer to the
relevant enactments from the maze of legislation dealing with matters relating

E
to education and appointment of Teachers, Principals/Headmasters, in Uttar
Pradesh. The first enactment to be noticed is the U.P. Intermediate Education
Act, 1921 (for short 'the Act'). A Board is established under the Act to
regulate and supervise the system of education, including appointment of
-
teachers at the high school and intermediate level m U.P. The Act conferred
power on the Board to frame Regulations for purposes of the Act. Regulation
lO(dd) of the Regulations, framed by the Board, prescribed the procedure for
filling up the vacancies of teachers and of the Heads of Institutions/schools
F by direct recruitment in any aided recognised institution/school. Sections
16-E and 16-F of the Act were substituted to bring about a change in the
mode of appointment of teachers by the management of private educational
aided institutions (for short, 'the management') and to provide for appointment
of teaching staff after selection by a Committee comprising of representatives
G of the management and experts nominated by authorities of the education
department. Later, the power of the management to appoint teaching staff was
restricted only for a period not exceeding 'six months'. Series of Orders called
'U.P. Secondary Education (Removal of Difficulties) Orders' were issued. We
concern ourselves with the Second Order of 1976 by which the words 'not
extending beyond June 30, 1976' were s.ubstituted for 'six months' and the
H Fifth Order of 1976 issued on November 27, 1976 which brought about two
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.] 485
important changes: {i) it regularised all temporary appointments made by the A
management on or before June 30, 1975; and (ii) it extended the period, earlier
fixed for ad hoc appointments under various orders, till December 31, 1976 or
till regular appointments, whichever is earlier. Section 16-GG was inserted in
the Act by U.P. Act 5 of 1977 with effect from April 21, 1977. The said
provision deals with the regularisation of appointment of ad hoc teachers B
made between August 18, 1975 and September 30, 1976. By a subsequent
Order, the period was again extended till May 20, 1977 or till regular selection,
whichever is earlier. In 1982, U.P. Secondary Education Services Commission
and Selection Boards Act, 1982 (U.P. Act No. 5 of 1982) was enacted, which
mandated the management to appoint teaching staff only on recommendation
by the Commission. The State Government was given the power to make rules C
under Section 35 ofU.P. Act, No. 5of1982. On May 8, 1995, the Government
made the 1995 Rules. Rule 12 of the said Rules prescribes procedure for
appointment of teaching staff by direct recruitment.

Sections 9 and 10 ofU.P. Act, No. 5of1982, which are impugned, read
as under : D
"9. Powers and duties of Commission.-The Commission shall have
the following powers and duties, namely -

(a) to prepare guidelines on matters relating to the method of
recruitment and promotion of such categories of teachers as are E
specified in the Schedule;

(b) to (j) *** *** ***
l 0. Procedure of selection of teachers specified in the Schedu/e-

(1) For the purposes of making appointment of a teacher specified F
in the Schedule, the management shall notify the vacancy to the
Commission in such manner and through such officer or authority
as may be prescribed.
(2) The procedure of selection of candidates for appointment to the
posts of such teachers shall be such as may be prescribed :
G
. Provided that the Commission shall, with a view to inviting talented
persons, give wide publicity in the State to the vacancies notified
under sub-section (l)."

A perusal of Section 9 shows that it enumerates the powers and duties
of the Commission which include preparation of guidelines on matters relating H
486 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A to the method of recruitment and promotion of teachers. It is the validity of
clause (a) of Section 9 that is impugned on the ground of delegation of
essential legislative functions. In our view, the contention is wholly
misconceived. It is too late in the day to question the delegation of legislative
functions to the Government or a subordinate authority. However, what cannot
B be delegated is essential legislative functions. It will be useful to reproduce
here the observations of Mukherjea, J. In re The Delhi Laws Act, 1912, the
Ajmer-Merwara (Extension of Laws) Act, 1947 v. The Part C States (Laws)
Act, 1950 [1951] SCR 747 at 982:

"If the legislature hands over its essential legislative powers to an
outside authority, that would, in my op~nion amount to a virtual
c abdication of its powers and such an act would be in excess of the
limits of permissible delegation. The essential legislative function
consists in the determination or choosing of the legislative policy and
of formally enacting that policy into a binding rule· of conduct. It is
open to the legislature to formulate the policy as broadly and with as
D little or as much details as it thinks proper and it may delegate the rest
of the legislative work to a subordinate authority who will work out
the details within the framework of that policy."

The essence of the essential legislative function lies in the legislature
formulating a policy in respect of a matter within its field of legislation and
E translating it into words of an enactment to clothe it with binding authority.
The legislative policy, as could be gathered from the aforementioned
provisions, appears to us to constitute a Commission which is a statutory
body consisting of experts and leave the question as to how it should
proceed with the method of recruitment and promotion of Teachers to the
F posts of Principals/Headmasters to that Commission. A plain reading of that
clause shows that the legislature has delegated the power of preparation of
guidelines on matters relating to the method of recruitment to the Commission
which is in the sphere of effectuation of the legislative policy rather than in
realm of laying down a legislative policy. The composition of the Commission
under Section 4 of U.P.Act No. 5 of 1982 is as follows :
G "4. Composition of the Commission.-
(!) The Commission shall consist of a Chairman and not less than
six and not tnore than eight other members to be appointed by
the State Government.

H (2) Of the members -
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.) 487
(a) One shall be a person who occupies or has occupied, in the A
opinion of the State Government, a position of eminence in Judicial
Services;
(b) Two shall be persons who occupy or have occupied, in the
opinion of such Government, a position of eminence in the State
Education Services; and B
(c) Others shall have teaching experiences as -

(i) Professor of any University established by law in Uttar
Pradesh; or

(it) Principal of any college recognised by or affiliated to any C
such University for a period of not less than ten years; or

(iii) Principal of any institution recognised under the Intermediate
Education Act, 1921 for a period of not less than fifteen
years.
D
(3) Every appointment under this Section shall take effect from the
date on which it is notified by the State Government."

A bare reading of Section 4 makes it evident that the Commission was
composed of members of whom one member was having a position of eminence
in judicial services and the other members were experts in the field of education. E
.
-
Inasmuch as the Commission was an expert body and it was entrusted with
the duty of selection of Teachers, Principals/Headmasters, it would be the
most competent body to lay down guidelines on matters relating to method
of recruitment and promotion of teachers to the posts of Principals/
Headmasters. Indeed laying down of guidelines by the Commission in such
matters when it is so authorised by an Act of legislature or by statutory Rules F
is a well accepted principle and no exception can be taken to it. [See : Dr.
Krushna Chandra Sahu and Ors. v. State of Orissa and Ors., [1995) 6 SCC
I].

A perusal of Section 10 shows that it deals with the procedure for G
selection of teachers specified in the Schedule to U.P.Act No. 5of1982. The
schedule specifies the following as teachers for purposes of Section 10 : (1)
Principal of an Intermt;ldiate College; (2) Lecturer of an Intermediate College;
(3) Headmaster of a High School; and (4) Trained Graduates, Grade Teachers
of Higher Secondary School. Further, Section 2(k) of that Act defmes 'teacher'
to include a principal or a headmaster. H
488 SUPREME COURT REPORTS (2000) SUPP. 3 S.C.R.

A Sub-section (1) of Section 10 enjoins the management to notify the
vacancy for making appointment of a teacher specified in the Schedule to the
Commission in such manner as may be prescribed. Sub-section (2) of Section
l 0 says that the procedure for selection of a candidate for appointment to the '
post of a teacher shall be as may be prescribed. The Commission is mandated
B to give wide publicity in the State to the vacancies notified under sub-section
(I) to invite talented persons. The Government of U.P. has prescribed in Rule
12 of the 1995 Rules procedure for recruitment of teachers. Nothing has been
pointed out and we also find nothing which would render the provisions of
Section 10 as unconstitutional.

Rule 12 (3) of the 1995 Rules, which is the subject matter of challenge,
c is extracted hereunder :
"12. Procedure of direct recruitment -
(3) The Commission shall hold interview· of the candidates and, for
each category of post prepare panel of those found most suitable
D for appointment in order of merit as disclosed by the marks
obtained by them 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 for the posts
in the lecturers and trained graduates (L.T.) grade, it shall be
E prepared subjectwise and groupwise respectively. If two or more
candidates obtain equal marks in interview, the name of the
candidate who has higher quality points shall be placed higher
in the panel and if the marks obtained in the interview as well as
~ the quality points of two or more candidates are equal, the name
F of the candidate who is 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 vacancy and for
the post of teachers in the lecturers and trained graduates (L.T.)
grade, it shall be larger (but not larger than twenty five per cent)
than the number of vacancies.
G
Explanation.- For the purposes of this sub- rule the word groupwise
means in accordance with the groups specified in the Explanation to
sub-rule (2) of Rule 11."

Rule 12 deals with the procedure for direct recruitment of Teachers,
H Principals/Headmasters and Lecturers. The procedure for selection of the
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.] 489

Principals and Headmasters is as follows: Sub-rule (1) requires the Commission A
to advertise the vacancies, inter alia, for the post of Principal of an Intermediate
College or the Headmaster of a High School duly specifying the name and
place of the institution/school and inviting application from the candidates
who are required to give their choice in respect of three institutions/schools
in the order of preference for which they desire to be considered. Sub-rule
(2), insofar as it relates to selection of Principals/Headmasters, directs that the B
Commission should scrutinise the applications and prepare the list having
due regard to the representation of the candidates belonging to Scheduled
Castes, Scheduled Tribes and other Backward Classes. The Commission is
required to call for interview five candidates for each vacancy on the basis
of the quality points secured by them. C
Sub-rule (3), quoted above, directs that the Commission shall hold
interviews of the candidates for each category of posts and prepare a panel
of those found suitable for appointment in order of merit as disclosed by the
marks obtained by them in the interview. The panel for the posts of Principals/
Headmasters has to be prepared institution-wise keeping in view the preference D
given by the candidates, if any, or in respect of a particular institution/school.
The panel should contain the names of the candidates three times of the
number of vacancies. The vice in sub-rule (3), it is argued, is, it mandates
selection of candidates only by interview. What is complained of is that there
is no provision for comparison of educational qualification, administrative E
experience, service record and character roll without which selection solely on
the basis of interview will be arbitrary. It may be noted that the scheme for
selection of the candidates, under consideration, is in two stages. The first
stage is evaluation at the time of screening, as envisaged in Appendix D of
the 1995 Rules, which provides for awarding of quality points under six items.
For academic qualification marks are awarded, under items l to 4, based on F
the percentage of marks secured in (1) High School; (2) Intermediate; (3)
Graduate degree; and (4) Post-graduate degree in accordance with formulae
noted therein. Item No. 5 deals with awarding of marks for training depending
upon whether the candidate secured the first or the second or the third
division in theory and practical. And at item No. 6 provision is made for G
awarding marks for administrative experience; 2 marks are given for each year
of experience, subject to a maximum of 15 marks.· Thus, it is noticed that at
the stage of awarding quality points academic qualification, training and
administrative experience of candidates are taken into consideration. The
candidates are called for interview on the basis of the 'quality points' secured
by them. Regarding non- consideration of service record and character roll by H
490 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A the Commission, no allegation was made in the writ petitions. However, Mr.
T.N. Singh, the learned counsel for the Commission, on instructions, submitted
that service records of senior teachers were before the Commission at the time
of interview.

Now we shall advert to the cases cited at the Bar.
B
In Shri Janki Prasad Parimoo and Ors. v. State ofJammu and Kashmir
and Ors., [ 1973] l SCC 420, the challenge was against selection for the posts
of Headmasters made by the Selection Committee on the basis of interview.
A Constitution Bench of this Court while approving the method of selection
C by interview, held that when appointment to higher posts were made it might
be perfectly legitimate to test the candidate at a properly conducted interview.
It was observed that the efficiency of a teacher and his qualification to be
appointed. as a Headmaster depended upon several considerations - his
character, his teaching experience, ability to manage his class, his popularity
with. the students and the high percentage of successful students he was able
D to produce; and that all those matters must be necessarily taken into
consideration before making a selection.

It is difficult to accept the omnibus contention that selection on the
basis of viva voce only is arbitrary and illegal and that since allocation of 15%
E marks for interview was held to be arbitrary by this Court, selections solely
based on interview is a fortiori illegal. It will be useful to bear in mind that
there is no rule of thumb with regard to allotment of percentage of marks for
interview. It depends on several factors and the question of permissible
percentage. of marks for an interview test has to be decided on the facts of
each case. However, the decisions of this Court with regard to reasonableness
F of percentage of marks allotted for interview in cases of admission to
educational institutions/schools will not afford a proper guidance in determining
the permissible percentage of marks for interview in cases of selection/
appointment to the posts in various services. Even in this class, there may
be two categories: (i) when the selection is by both a written test and viva
G voce; and (ii) by viva voce alone. The courts have frowned upon prescribing
higher percentage of marks for interview when selection is on the basis of
both oral interview and a written test. But, where oral interview alone has
been the criteria for selection/appointment/promotion to any posts in senior
positions the question of higher percentage of marks for interview does not
arise. Therefore, we think it an exercise in futility to discuss these cases-
H Minor A. Peeriakaruppan etc. v. State of Tamil Nadu and Ors., [1971] 1 SCC
KIRAN GUPTA v. STATE (SYED SHAH MOHAMMED QUADRI, J.] 491

38 and Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., [1981] 1 A
SCC 722, relied upon by Mr. Goswami, which deal with admission to educational
institutions/schools and also cases where prescribed method of recruitment
was written test followed by interview-Ashok Kumar Yadav & Ors.. v. State
ofHaryana & Ors., [ 1985] 4 SCC 417; D. V. Bakshi & Ors. v. Union ofIndia
& Ors., (1993] 3 SCC 663 and Krishan Yadav & Anr. v. State of Haryana & B
Ors., (1994] 4 SCC 165.

However, it will be apt to refer to the decision of a three-Judge Bench
of this Court in Lila Dhar v. State of Rajasthan and Ors., [1981] 4 SCC 159.
There, the impugned selection for the posts of District Munsifs under
Rajasthan Judicial Service Rules was made by the Rajasthan Public Service C
Commission. The ratio of marks allocated for written test and interview was
75:25. Speaking for the Court, Justice 0. Chinnappa Reddy pointed out:

"In the case of admission to a college, for instance, where the
candidate's personality is yet to develop and it is too early to identify
the personal qualities for which greater importance may have to be D
attached in later life, greater weight has per force to be given to
performance in the written examination. The importance to be attached
to the interview-test must be minimal. Therefore, the ratio of the
decisions in Minor A. Peeriakaruppan etc. v. State of Tamil Nadu
and Ors., [1971] 1 SCC 38 and Ajay Hasia and Ors. v. Khalid Mujib
Sehravardi and Ors., [1981] l sec 722, in this regard, cannot be E
applied in case of services to which recruitment has necessarily to be
made from persons of mature personality, interview test may be the
only way, subject to basic and essential academic and professional
requirements being satisfied."

That case has been consistently followed in various judgments of this Court. F
We refer to a few of them here.

In Dr. Keshav Ram Pal v. U.P. Higher Education Services Commission,
Allahabad & Ors., [1986] 1SCC671, referring to the view taken by this Court
in Periakaruppan v. State of T.N., (supra) and Ajay Hasia v. Khalid Mujib G
Sehravardi, (supra) that the importance to be attached to the interview test
must be minimal, this Court commented that in the case of services to which
recruitment had necessarily to be made from persons of mature personality,
interview test might be the only way, subject to basic and essential academic
and professional requirements being satisfied and that subjecting such persons
to a written examination might yield unfruitful and negative results, apart from H
492 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A it being an act of cruelty to those persons.
In Anzar Ahmad etc. v. State of Bihar and Ors. etc., [1994] l SCC 150,
for appointment to the posts of Unani Medical Officer the Government
prescribed that the Public Service Commission shall select the candidates on
the basis of interview. The Commission allocated 50% marks for academic
B qualification and 50% for interview. This Court, after referring to the
aforementione.~. cases and relying upon Lila Dhar 's case, upheld the method
of selection by interview alone. That decision was followed in A.P. State
Financial Corporation v. C.M Ashok Raju and Ors., [1994] 5 SCC 359. In that
case also selection of candidates by interview without a written test was t
C upheld by this Court. The posts of Managers in the A.P. Financial Corporation
were to be filled by interview without a written test. The Corporation approved
the promotion criteria by viva voce without a written test and allocated marks
under various heads; among them for interview 25% and for length of service
15% marks were prescribed. A Division Bench of the High Court while
upholding the allocation of marks under various heads, reduced the percentage
D of marks for interview from 25% to 15% and increased percentage of marks
for length of service from 15% to 25%. On appeal, this Court held that the
High Court fell into patent error in reaching the conclusion that 25% marks
for interview were, in the facts of that case, excessive. It was observed that
there was no dispute that no written test was prescribed for promotion to the
E post of Manager and above and the selection/promotion was only by viva
voce test, so no limit could be imposed for prescribing the marks for interview.

In Siya Ram v. Union of India and Ors., [1998] 2 SCC 566 one of the
grounds of attack was that the Rules regarding selection for the post of Chief
Personnel Inspector in Railways, permitted only oral test in the form of viva
p voce and no written examination was held. It was contended that the result
of a selection merely on the basis of viva voce could not be reasonably fair
and was liable to lead to arbitrariness. There, out of 100 marks, 50 were
allotted for professional ability without prescribing any norms. While rejecting
the contention, this Court, following the Lila Dhar 's case, held that at times
for certain posts only interview was considered to be the best method of
G selection.

For all these reasons, we fmd no illegality in Rule 12(3) of the 1995 Rules
providing for selection of suitable candidates based on their performance in
the interviews for appointment to the posts of Principals/Headmasters.

H The next prong of attack on the interview test is that in the guidelines
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.] 493
framed by the Commission no separate marks are allocated for each of the A
seven items and the members of the Commission did not award separate
marks under each item therefore the selection was arbitrary and liable to be
set aside. Mr. Shanti Bhushan, on the other hand, supported the selection and

- argued that having regard to the items specified in the guidelines awarding
of separate marks under each item would lead to most undesirable consequences
and even disastrous results. He has submitted that in such cases overall
B
evaluation alone is the best rriethod and that was adopted by the Commission.

In the guidelines framed by the Commission the following aspects are
to be kept in mind while evaluating a candidate :

"Madhyamik Shiksha Ayog-The candidates called for interview have
c
to be adjudged by members of the Board for 75 Marks, keeping in view the
following factors.

l. Personality.
2. Knowledge of the subject. D
3. Knowledge of current ideas and problems of the educational
work diagnostic attitude towards them.
. 4. General Knowledge .
5. Administrative ability regarding school management. E
6. Self expressive and impressive views.
. 7. Achievement in curricular activities of the regional and State
levels."

It is true that maximum marks for each item were not allocated. A perusal F
of the original lists of participants in the interviews for the posts of Principals/
Headmasters with reference to each institution/school, shows that the members
of the Commission who interviewed the candidates awarded marks in lump
but separately after evaluating the candidate on the basis of aforementioned
factors.
G
~ On a careful consideration of the factors contained in the above quoted
guidelines, we find considerable force in the submission of Mr. Shanti Bhushan
that overall evaluation rather than awarding of marks for each item will lead
to proper and correct results. Assuming that each of the factors in the
guidelines is allocated equal marks; in a given case, if the personality of the H
494 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A candidate and his administrative ability regarding school management are
miserably poor but his knowledge of current ideas and problems of educational
work, general knowledge and achievement in curricular activities etc., are
good and he secures higher marks than a candidate who is having good
personality, possess imaginative administrative ability regarding the school
B management and satisfies the other factors certainly the former candidate will
not be better than the latter as a Principal/Headmaster for an institution/
school. Such examples can be multiplied by permutation and combination. In
our view, items mentioned in the guidelines are various aspects which have
to be kept in mind in evaluating a candidate for his suitability and fitness for
being appointed as the Principal/Headmaster of a institution/school. We,
C therefore, do not find any illegality in the procedure of overall evaluation of
the candidate without fixing marks for each of the items noted above, adopted
by the Commission, and on this ground we are not inclined to hold that the
selection is arbitrary.

Here, we may with advantage mention a decision of this Court in Dr.
D Keshav Ram Pal v. U.P. Higher Education Services Commission, Allahabad
& Ors., (supra). In that case also selection for the post of Principal was under
consideration. The appellant who claimed to possess higher academic
qualifications and the longest experience, was not selected. He challenged the
selection on the ground that although the basis of selection was the candidate's
E academic attainments, teaching experience, administrative experience and
suitability for the post of Principal, marks were not separately allocated under
e;ch of those heads, therefore, the procedure was arbitrary and resulted in
arbitrary selection. This Court held that the interview board was not obliged
..
to subdivide the marks and selection could not be said to be arbitrary in the
absence of such subdivision.
F
It may be noticed here that initially there was no provision for considering
two senior-most teachers of each institution/school in which the vacancy of
Principal/Headmaster existed. On a decision taken by the Government that
two senior-most teachers of each of the institutions/schools, where vacancy
G of Principal/Headmaster existed, should also be interview_ed, the Commission
in its Extra-Ordinary Meeting held on April 24, 1996, took the following
decision :

"On the report ofHon'ble Member Shri S.L. Adarsh the commission
considered that the Regulation 1983 are not in force at present.
H Therefore, the procedure which has been laid down for interview in
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.] 495

- the present Regulations shall be complied with. Two senior most
teachers shall participate in the selection process, they would be
considered only for their respective institutions where they have been
A

serving. No special preference has been provided in the present
Regulations as such their interviews would be held in the same manner
as prescribed for the direct candidates from open market and they B
would be awarded marks as per the same procedure. In case, if any
of the two senior teachers of each institution secures higher marks
then he/she would be taken as selected and the other senior teacher
would be left out at that very point of time and the other general
candidates would be considered for other institutions in the Region
on the basis of marks obtained in the interview." c
The appellants are unsuccessful senior most teachers of various institutions/

- schools who have challenged the method of selection for the in-service
teachers to find a way to the post of Principal/Headmaster. It is a common
case that in the interview, the in-service candidates were not given any
special preference and in their selection the same procedure, as was adopted D
in the case of general candidates, was applied. Between the two senior most
teachers of each institution/school whoever secured higher marks was selected
for that institution/school and no candidate from the general pool was selected
ignoring the claim of the senior teachers for their institution/school which is
reasonable and fair from the point of view of senior teachers of the institution/ E
school concerned.

The penultimate challenge is against the panel of selected candidates
prepared on April 15, 1997. It was submitted that in view of wide spread
allegations of favouritism and arbitrariness in the selection and preparation
of panel of selected candidates, the State Government issued a notification F
under Section 2 of the Uttar Pradesh State (Control Over) Public Corporation
Act, 1975 (Act 41/75) on April 17, 1997, directing the Commission not to take
any steps to make selection by direct recruitment of the candidates for being
appointed as teachers including Principals/Headmasters and not to prepare
any panel of candidates but in violation thereof the Commission selected the G
candidates after the date of the notification and ante dated the panel as if it
was prepared on April 15, 1997. That panel was received by the Regional
Deputy Director of Education on April 20, 1997 and that, according to Mr.
Goswami, would show that the panel was not prepared before the date of the
notification. It was urged that in the interests of justice, this Court might
peruse the original records of interview and preparation of panel and determine H
496 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A its validity. Mr. Shanti Bhushan met that argument by challenging the
notification itself on the ground of lack of power in the Government to issue
such a notification to interdict the functioning of a statutory body and
-
submitted such an illegal notification did not bind the Commission. It was
further submitted that merely because the panel of April 15, 1997 was not sent
B through the Inspector but was sent directly and was received by the Regional
Deputy Director on April 20, 1997 it could not be concluded that the panel
was ante-dated. Mr. Singh, learned counsel appearing for the Commission,
submitted that after the date of the notification, no panel was prepared and
that the preparation of panel was completed and it was despatched from
Allahabad on April 15, 1997 before the date of the said notification and that
C no adverse inference could be drawn on the ground that it was received at
Meerut by the Regional Deputy Director on April 20, 1997. He placed before
us the register of despatch to show that the panel was despatched on April
15, 1997 itself. The secretary of the Commission produced the original panel
and the original records of interviews conducted by the Commission.

D The questions that arise are : (i) whether the selection and preparation
of the panel was completed before April 15, 1997; if not, (ii) whether the
notification of April 17, 1997 issued under Section 2 of the Act 41/75 is valid
in law; and (iii) what is the effect of the said notification on the impugned
panel?
E
At the outset, we may observe that the allegation that to get over the
notification of April 17, 1997 the panel was ante dated to April 15, 1997 is
fraught with very serious inferences, namely, the member of the Commission
joined together to conspire to get over the said notification and having
selected the candidates ;md prepared the panel after April 17, 1997 showed
F on record as if it was done on April 15, 1997 which are patently illegal acts.
The allegation is too wild and preposterous to be entertained in the absence
of any incontrovertible and irrefragable material to support it and to rebut the
presumption of regularity of the official record and we outrightly reject the
same.

G ·A perusal of the original panel of April 15, 1997 discloses that it · •
contains the names of the selected candidates for the posts of Principals/
Headmasters of various schools in different cities of Meerut region. On
examination of the original lists from the records of interview, it appears that
the selection of the candidates took place between November 1996 and
H February 1997 long before the date of the preparation of the panel and it
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.] 497
appears to us that the panel was prepared before April 15, 1997 but it was A
communicated by the Commission at Allahabad to various educational
authorities including the Regional Deputy Director, Meerut on April 15, 1997.
In the court we perused the calendar of 1997 and noted that between April
16, 1997 and April 20, 1997 fell public holidays for Ram Navami, Id'ul Zuha
and Sunday. The laxity with which an office generally functions should
neither be a matter of any surprise for panel of selected candidates of April B
15, 1997 from Allahabad to reach the Regional Deputy Director of Education,
Meerut on April 20 nor could it furnish any basis to make a rabid allegation
of ante dating. In view of this finding, it is unnecessary to go into the other
questions as to the validity of the notification and its effect on the panel of
candidates dated April 15, 1997. C
Now, one important aspect reg~rding the validity of panel of April 15,
1997 remains to be considered.

In view of the allegations with regard to the selection and empanelling
of the candidates, this Court by Order dated September 29, 1999 directed the D
Vigilance Department to submit a copy of the vigilance inquiry report. At the
time of hearing when we asked the learned counsel for the State about the
report we were infonned that the Vigilance Department did not prepare the
report. The explanation given to us was that the records were with this Court
· but this is incorrect because at the time of hearing, having found that the E
records were not available, we issued notice to the Secretary to attend the
Court alongwith the records and that is how the records were made available
to this Court on April 5, 2000.

To ascertain whether the impugned panel of April 15, 1997 represents
correctly the candidates who were selected by the Commission, we perused F
the original records keeping in mind the provisions of rule 12(3) of the 1995
Rules and the guidelines framed by the Commission with regard to selection
of the senior teachers, extracted above, and verified the lists of candidates
who participated in the interview in respect of each institutions/schools. In
the lists marks awarded to the candidates are also noted. We may indicate G
here that for purposes of conducting interviews for the posts of Principals/
Headmasters in different institutions/schools in the Meerut region, each of
the institutions/schools was assigned a code number. There are in all 258
code numbers. Thus, each list of candidates who were called for interview for
the post of Principal/Headmaster of an institution/High School contains a
code number. In each list under the caption 'senior teachers of the institution/ H
498 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A school' the names of two senior teachers of the institution/school are noted
and under the caption 'candidates' the names of general candidates are
mentioned. Against their names marks awarded by each member of the
Commission and the average marks secured by the candidates are also written.
The word 'chayanit' is noted in Hindi against the name of the senior teacher
who secured higher marks than the other candidates in the list and was
B selected. Where only one senior teacher from that institution/school
participated in the interview and he secured higher marks, he was accordingly
selected. But where a general candidate secured higher marks than the senior
teachers of the institution/school he was not selected and a tick mark was put
against the name of the general candidate, which does not indicate that he
C was necessarily selected for the same institution/school. Inasmuch as we are
not concerned with the selection of the general candidates, we did not further
pro.be into the matter.

Though at the time of the argument it was submitted that all the
appellants except two, appeared for interviews in Meerut region, the particulars
D of the appellants as to when and from which institutions/schools they appeared
for interview, were not furnished so we were unable to verify as to how many
marks they secured and whether their non-inclusion in the impugned panel
is correct or not. From the record, supplied to us, we could find about 200
such lists. The names of the appellants, [except that of Kiran Gupta - appellant
E in Civil Appeal Nos. 5579-82 of2000 (@ S.L.P. (C) Nos. 19035-38/98)], do not
figure therein. The name of Kiran Gupta who is a senior teacher, is found in
the list bearing code No. 239, category 02. She secured 42 marks whereas a
general candidate secured 45 marks therefore her name was not included in
the impugned panel and she cannot have any grievance for not being selected.

F On the scrutiny of the records, to the extent we have done, we are
satisfied that the allegations of malpractice and illegality in respect of selection
and empanelling are baseless and untenable.

We are left with the last contention of the appellants that their claim for
G regularisation in the posts in which they have been working as ad hoc
Principals/Headmasters, may be ordered. Indeed, their contention is that they
stood regularised under Section 33-A(l-A) of Act No. 5 of 1982 Act as.
amended in 1991 read with Section 33-C(l)(a)(ii) and (c). The High Court took
the view that their claims must have been settled under sub-section (I-A) of
Section 33-A of Act No. 5 of 1982 long before the cut- off date (April 6, 1991 ).
H It was observed that if any dispute with regard to any individual claim under
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.) 499

.. the said provision is pending before the authority, such claim might be A
considered. With regard to the claim based on Section 33-C(l)(a)(ii), on the
basis that some of them were appointed prior to August 7, 1993 and therefore
they are entitled to be regularised, the High Court opined that the provisions
of Section 33-C came into force on April 20, 1998, long after the vacancies
were notified to the Commission and in respect of which the selection had
already been completed by that date, therefore, in view of sub-section (6) of B
Section 33-C their claim did not survive.

It will be apt to quote the said provisions here :

"33-A. Regularisation of certain appointments.-
c
(l) *** *** ***

(l-A). Every teacher appointed by promotion, on ad hoc basis against
a substantive vacancy in accordance with paragraph 2 of the Uttar
Pradesh Secondary Education Services Commission (Removal of
Difficulties) Order, 1981, as amended from time to time, who possesses D
the qualifications prescribed under, or is exempted from such
qualifications in accordance with the provisions of, the Intermediate
Education Act, 1921 shall, with effect from the date of commencement
of the Uttar Pradesh Secondary Education Services Commission and
Selection Boards (Amendment) Act, 1991, be deemed to have been
appointed in a substantive capacity provided such teacher has been
E
continuously serving· the institution from the date of such ad hoc
appointment to the date of such commencement.

33-C(J) Any teacher who,-

(a)(i) *** *** *** F
(ii) was appointed by promotion on or after July 3 I, 1988 but not later
than August 6, 1993 on ad hoc basis against a substantive vacancy
in the post of a Principal or Head Master in accordance with Section
18;
G
(b) *** *** ***

- (c) has been continuously serving the institution from the date of
such appointment up to the date of the commencement of the Uttar
Pradesh Secondary Education Services Commission (Amendment) Act,
H·.
1998;
500 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A (d) ••• ••• •••
shall be given substantive appointment by the management.
(2),-f3), (4), (5) ••••••

(6) Nothing in this section shall be construed to entitle any teacher
B to substantive appointment, if on the date of commencement of the
Ordinance referred to in clause (c) of sub-section (l) such vacancy
had already been filled or selection for such vacancy has already been
made in accordance with this Act."

C Insofar as the claim based on Section 33-A(l-A) is concerned, a perusal
of sub-section (1-A) of Section 33-A discloses that to attract the provisions
of this sub-section the teacher which includes Principal/Headmaster should
fulfil the following conditions : (i) he must have been appointed on ad hoc
basis against a substantive vacancy; (ii) his appointment should have been
made in accordance with para 2 of the Uttar Pradesh Secondary Education
D Services Commission (Removal of Difficulties) Order 1981, as amended from
time to time; (iii) he must possess the qualification prescribed under the
provisions of the Act or he should be exempted under the provisions of the
said Act; and (iv) he should have been continuously serving in the institution/
school from the date of his ad hoc appointment till the date of commencement
E of the Uttar Pradesh Secondary Education Services Commission and Selection
Boards (Amendment) Act, 1991. In this batch of cases as individual particulars
of the appellants on these aspects are not available, the High Court, in our
view, rightly observed that if any such cases are pending the same may be
examined and appropriate order be passed in accordance with the terms of the
said provisions. We can only add that if any of the appellants makes a claim
F under these provisions within three months of this judgment to the Director
of Education, the same shall be considered within three months from the date
of receipt of such representation and the result be communicated in writing
to the candidate.

G Insofar as claim based on Section 33-C(l)(a)(ii) is concerned, the
candidates has to show that the following conditfons are satisfied : (i) a
teacher was appointed by promotion on ad hoc basis in the post of Principal/
Headmaster; (ii) the appointment by promotion was made on or after July 31,
1988 but not after August 6, 1993; (iii) though the appointment was an ad hoc
appointment, it was against a substantive vacancy; (iv) the appointment was
H in accordance with Section 18 ofU.P.Act No. 5of1982; and (v) the appointee
KIRAN GUPTA v. STATE [SYED SHAH MOHAMMED QUADRI, J.] 501
has been continuously serving in the institution/school from the date of such A
appointment upto the date of commencement of Uttar Pradesh Secondary
Education Services Commission (Amendment) Act, 1998 (i.e. April 20, 1998).
Even if an incumbent satisfies all these conditions, his right will be defeated
by sub-section (6) of Section 33-C if on April 20, 1998 such vacancy has
already been filled or selection for such vacancy has been made in accordance
with the U.P. Service and Selection Board Act, 1982. Here again, the particulars B
of the appellants who claim to fulfill these requirements are not available,
therefore, we consider it appropriate to leave it to the Director of Education
who shall look into the claims made under this provision. As constitutional
validity of Section 33- C (6) has not been challenged in the High Court, we
do not propose to go into it here. However, we deem it proper to observe that C
the regularisation of the candidates under Section 33-C(l)(a)(ii) is made to
depend on a mere chance of a substantive vacancy either being filled in or
the selection for that vacancy being completed. There may still be cases
where the posts of Principals/Headmasters may be lying vacant either because
the selected candidates did not join or because the incumbents having
obtained posting of their choice vacated the posts or for any other reason D
the posts might have fallen vacant. In all such cases the benefit of Section
33-C(l)(a)(ii) has to be given to the ad hoc appointees. We issue a similar
direction as issued above in cases of claims based under Section 33A(l-A)
of the said Act.

Subject to the above observations, these appeals are dismissed. The
E
parties are directed to bear their own costs.

VM. Appeals dismissed.

-