THE STATE OF UTTAR PRADESH & ORS versus RACHNA HILLS & ORS. on 27 April 2023

[2023] 4 S.C.R. 969

THE STATE OF UTTAR PRADESH & ORS.

v.

RACHNA HILLS & ORS.

(Civil Appeal No. 1882 of 2023)

APRIL 27, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI ANDPAMIDIGHANTAM SRI NARASIMHA, J.]

Service Law: Uttar Pradesh Intermediate Education Act,1921: ss. 16-E, 16-FF – Appointment of teachers in minorityinstitutions – Procedure for selection and appointment – Initiationof the process of selection of teachers – Proposals forwarded to theDistrict Inspector of Schools-DIOS for approval – However, beforethe grant of the requisite approval, Regn 17 was amended, prescribinga new selection procedure – Thereafter, DIOS returned the proposalfor compliance with the new procedure – Writ petitions challengingthe decision of DIOS – High Court held that once the names areforwarded for approval of the DIOS, the selection process concludesand the proposed candidates acquire a vested right to be appointed;and that the vacancies that arise prior to the amendment of Ruleshave to be governed by the Rules that existed at the time suchvacancies arose – On appeal, held: Approval of DIOS is mandatoryfor appointment and that the Act injuncts the appointment of a teacherwithout such approval – Legal regime does not contemplate anyconcept of deemed appointment if the DIOS does not decide uponthe proposal within 15 days – Reliance on the principle that Rulesthat existed at the time when vacancies arose will govern theappointments is misplaced – Candidate has a right to be consideredin the light of existing Rules, which implies Rules in force as on thedate of consideration – On facts, the process of appointment cannotbe said to have been concluded without obtaining the mandatoryapproval of the DIOS, and as such, there is no vested right of thecandidate to be appointed before the amendment of Regulation –Unless the approval contemplated u/s. 16-FF(3) is accorded, noappointment could take place – Thus, the appointment would begoverned by the amended Regulations which is in force at the time ofconsideration – High Court erred in holding that the shortlistedcandidates acquired a vested right to be appointed – Order passedby the High Court is set aside – Regn 17, 18.

969

A

B

C

DEF

GH

970SUPREME COURT REPORTS

AAllowing the appeals, the Court

HELD: 1.1 Sub-section (3) of section 16-FF of the U.P.Intermediate Education Act 1921 provides that no personselected and proposed to be appointed as a teacher by theManagement shall be appointed till the proposal is approved byBthe DIOS. If the expressions ‘no person’, ‘shall be appointed’,and ‘unless’ employed in sub-section (3) are given their ordinarymeaning, which is the foremost of the linguistic canons ofconstruction of legislation, there is no hesitation in holding thatappointment is subject to the mandatory approval of DIOS. Theprocess of appointment cannot be said to have been concludedCwithout obtaining the mandatory approval of the DIOS, and assuch, there is no right, much less a vested right, of the candidateto be appointed. Thus, in view of the clear statutory mandateunder Section 16-FF(3) of the Act, the High Court has committedan error in coming to the conclusion that the Respondent nos. 1

Dto 3 have acquired a vested right to be appointed. [Paras 19,21][979-D-E; 980-E]

1.2 The appointments are to be made under Section 16-Eof the Act. Section 16-F of the Act provides for the constitutionand recommendation of Selection Committees and Section 16-EFF therein specifically relates to minority institutions. Regulation18(1) provides for the time within which an order of appointmentis to be issued by a Manager to the selected candidate. Accordingto which, where the recommendation is made by a SelectionCommittee constituted under sub-section (1) or (2) of Section16-F of the Act, an order of appointment is to be issued within 15Fdays of the receipt of the recommendation of the SelectionCommittee. Whereas, in the case of an institution referred to inSection 16-FF of the Act, i.e., a minority institution, as in theinstant case, it is to be issued within 15 days of the receipt of theapproval of the authority specified therein. Neither Section 16-FFGof the Act nor Regulation 18 provides the period within whichapproval is to be accorded. Further, neither of the two provisionsprovide for deemed appointment in the event of delay in grantingapproval. Therefore, unless the approval contemplated underSection 16-FF(3) is accorded, no appointment could take place.[Para 23][981-E-G]H

1.3 In any case, when the relevant statutory provision, i.e.Section 16-FF(3) itself makes approval by DIOS mandatory forappointment to the post of teacher, a Regulation made under theAct could not have provided for a ‘deemed appointment’.Subordinate legislation cannot transcend the prescription of astatutory provision. Additionally, sub-section (4) of Section 16-FF of the Act has to be read in conjunction with Section 16-FF(2)therein, which provides that “[t]he procedure to be followed by theSelection Committee referred to in sub-section (1) shall be such asmay be prescribed”. It is only in the cases where the selectionprocedure, as prescribed in the Regulations, is followed, thatthere cannot be a disapproval unless there is a lack of requisiteeligibility and qualifications. Thus, the question of deemedappointment does not arise under section 16-FF(4) of the Act.[Paras 24, 25][981-H; 982-A-C]

1.4 If the statutory provisions read with relevantRegulations were to provide for ‘deemed appointment’, therewould not have been a further remedy against an order ofdisapproval by the DIOS. Sub-section (5) of section 16-FFprovides the remedy to the College Management in the eventthe DIOS does not grant an approval. As per this, the Managementcan within three weeks from the date of receipt of disapproval,make a representation to the Regional Deputy Director ofEducation. In view of the legal provision as obtained under Section16- FF of the Act, read with Regulation 18, the submissions ofthe respondents’ that there is a ‘deemed appointment’ of selectionunder Regulation 18 is rejected. [Paras 26, 27][982-C-E]

1.5 Approval of DIOS is mandatory and that the Act injunctsthe appointment of a Teacher without such approval. The legalregime concerning the appointment of Teachers does notcontemplate any concept of deemed appointment if the DIOS doesnot decide upon the proposal within 15 days. Under thesecircumstances, the reference to and reliance on the principle thatRules that existed at the time when vacancies arose will governthe appointments is misplaced. [Para 29][982-G-H; 983-A]

AB

C

DE

F

G

H

A1.6 In any event, it is now a settled principle of law that acandidate has a right to be considered in the light of existingRules, which implies Rules in force as on the date of consideration.Thus, the submission by Respondents, that the vacancies thatexisted prior to the amendment of Regulation 17 of Chapter II,must be governed by unamended rules is rejected. [Paras 30 andB33][983-B; 985-C]

Smt. Rachna Hills case Special Appeal Defective No.42 of 2019; Raj Kumari Cecil (Smt.) v. ManagingCommittee of Laxmi Narain Bhagwati Devi VidyaMandir Girls’ High School (1998) 2 SCC 461 : [1997]C5 Suppl. SCR 542; Deepak Agarwal and Anr. v. Stateof U.P. and Ors. (2011) 6 SCC 725 : [2011] 4 SCR149; Rajasthan State Sports Council and Anr. v. UmaDadhich and Anr. (2019) 4 SCC 316 : [2019] 1 SCR585; State of Himachal Pradesh and Ors. v. Raj KumarDand Ors. 2022 SCC OnLine SC 680 – referred to.

Case Law Reference

From the Judgment and Order dated 16.01.2019 of the High CourtFof Judicature at Allahabad in SAD No. 42 of 2019.

With

Civil Appeal Nos. 1883 and 1884 of 2023.

Vikramjit Banerjee, ASG, V. K. Shukla, Sr. Adv., Harish Pandey,GAdv. for the Appellants.

Shankey Agrawal, Vikash Singh, Ms. Jaikriti S. Jadeja, ShreyansRaniwala, Gaurav Agarwal, Mrs. Shristi Gupta, Abhishek Sharma, Advs.for the Respondents.

H

The Judgment of the Court was delivered by PAMIDIGHANTAM SRI NARASIMHA, J.

1. Schools and intermediate educational institutions in the Stateof Uttar Pradesh are governed by the Uttar Pradesh IntermediateEducation Act, 1921[1], Rules and Regulations made thereunder. Theprocedure for the selection and appointment of Heads of Institutionsand Teachers in minority institutions is provided in Section 16-FF of theAct and Regulation 17 of the Regulations[2]. While the detailed procedurefor selection is laid down in Regulation 17, sub-section (3) of Section 16-FF of the Act mandates that no person selected as a Teacher shall beappointed unless the proposal for appointment is approved by the DistrictInspector of Schools[3].

2. In the present case, two minority institutions initiated the processof selection of Teachers and forwarded their proposals to the DIOS forapproval. Before the requisite approval was granted, the Governmentamended Regulation 17, prescribing a new procedure for selection.Consequently, the DIOS returned the proposal for compliance with thenew procedure. The institutions challenged the DIOS’ decision requiringthe Management to follow the new Rules by filing writ petitions underArticle 226 of the Constitution.

3. By the orders impugned before us, the High Court held that,once the Management forwards the names for approval of the DIOS,the selection process concludes and the proposed candidates acquire avested right to be appointed. The High Court also referred to and reliedon a principle that vacancies that arise prior to the amendment of Ruleshave to be governed by the Rules that existed at the time such vacanciesarose. The State of U.P. is in appeal before us. Supporting the decisionsof the High Court, the Respondents also argued before us that theRegulations contemplate a ‘deemed appointment’ if the DIOS does notconfirm the appointment within 15 days of receiving the proposal. Wehave answered all the three questions.

4. Allowing State’s appeals, we have held that the selection processconcludes only after the mandatory approval of the DIOS is granted.

1 hereinafter ‘the Act’.

2 Regulations under the Intermediate Education Act 1921, Chapter II, Regulation 17;hereinafter ‘Regulation 17’.

3 U.P. Intermediate Education Act 1921, section 16-FF(3) read with section 2(bb);hereinafter ‘DIOS’.

A

B

C

D

EF

G

H

AHaving examined the statutory regime along with the subordinatelegislation, we found that there is no place for a deemed appointment.We have also clarified that the principle relied on by the High Court forapplying old rules for past vacancies is neither applicable to the facts ofthe present cases nor good law in view of recent decisions of this Court.

B5. We will now refer to the necessary facts before recordingsubmissions of the parties, followed by reasons and our decision.

6. Facts in Civil Appeal Nos. 1882 and 1883 of 2023: RakhaBalika Inter College, Fatehgarh, Farrukabad, U.P., hereinafter referredto as the Respondent College, is a recognized aided minority institution,Cimparting education up to the level of intermediate. On 04.10.2017, theCollege issued an advertisement inviting applications for the selectionand appointment to three posts of Assistant Teachers. The SelectionCommittee constituted by the College processed the applications and,by its proceedings dated 17.01.2018, shortlisted and recommended thenames of Respondents nos. 1 to 3 to the College Management.D

7. The Management accepted the recommendation and by its letterdated 10.02.2018 sought the approval of the DIOS, Farrukabad, for theappointment of Respondent nos. 1 to 3 as Assistant Teachers. The DIOS,by his letter dated 08.03.2018, informed the Management that the proposalfor approval is incomplete and therefore suggested that necessaryEinformation with supporting documents may be furnished for the grantof approval.

8. Before the Respondent College could send the necessaryinformation, the Regulations prescribing the process of appointment wereamended. The amended provisions came into force w.e.f. 12.03.2018.FConsequently, the DIOS, by its letter dated 14.03.2018, returned theapplications to the Respondent College with a request to process theproposal as per the amended Regulations.

9. The Respondent-candidates challenged the above-referreddecision of the DIOS by filing writ petition before the High Court ofGJudicature at Allahabad[4]. The learned Single Judge, by an order dated07.05.2018, set aside the decision and directed the DIOS to reconsiderthe decision, on the ground that the amended Regulations would notapply as the selection process had attained finality.

10. Following the directions of the Single Judge, the DIOSreconsidered the matter and passed an order on 11.10.2018, stating thatthe selection process did not culminate in the grant of approval underSection 16-FF of the Act and as such the selection is not final. TheDIOS observed that before the appointment of Respondents could beapproved, the Regulations stood amended, necessitating compliance withthe new procedure for selection. This decision of the DIOS was againchallenged by the Respondent- candidates in a writ petition[5]. The learnedSingle Judge held that the order of the DIOS dated 11.10.2018 was incontravention of the earlier direction of the Court dated 07.05.2018 andtherefore directed the personal presence of the DIOS, Farrukabad. Ona subsequent day, i.e., on 16.01.2019, the Single Judge directed the DIOSto comply with the original direction of the Court dated 07.05.2018.

11. The State of Uttar Pradesh filed a writ appeal against theoriginal order of the Single Judge dated 07.05.2018[6]. By the orderimpugned herein, the Division Bench of the High Court dismissed thewrit appeal on the ground of delay as well as on the merits of the dispute.On merits, the Division Bench held that the selection process with respectto vacancies which arose prior to the amendment of the Regulationswould be governed by the unamended Regulations. Accordingly, it notedthat the amendment of Regulation 17 would have no bearing on therequest for approval by the DIOS. It is against this order dated 16.01.2019that the State of Uttar Pradesh filed the first Civil Appeal No. 1882 of2023. The connected Civil Appeal No. 1883 of 2023 arises out of thesubsequent order of the Single Judge dated 16.01.2019, directing theDIOS to comply with the original directions under order dated07.05.2018[7].

12. Facts in Civil Appeal No. 1884 of 2023: M/s FarrukabadCity Girls Inter College is a recognized aided minority institution. ThisCollege issued an advertisement on 04.12.2017 inviting applications forselection to the post of Assistant Teacher. In a similar turn of events,before the DIOS could consider granting approval, the amendedRegulations came into force on 12.03.2018. Consequently, the DIOS, byan order dated 19.03.2018, directed the College to resend the proposalfor approval after conducting the selection process in terms of the 5 Writ Appeal No. 27341 of 2018.

6 Special Appeal Defective No. 42 of 2019.

7 In Writ Appeal No. 27341 of 2018.

AB

C

D

E

F

G

H

Aamended Regulations. The recommended candidates filed a writ petition[8],which was allowed by the Learned Single Judge of the High Court on01.11.2018. State’s writ appeal[9]against the said order was dismissed bythe Division Bench on 18.01.2019 by simply following the decision in thefirst case, Smt. Rachna Hills case[10]. The third Civil Appeal No. 1884 of2023 is filed by the State against this decision of the Division Bench.B

13. Submissions by the Parties: Additional Solicitor General,Shri Vikramjit Banerjee and Shri VK Shukla, Senior Advocate assistedby Shri Harish Pandey, AOR appeared for the State of U.P. Theyhave submitted that the Single Judge, as well as the Division Bench,committed a serious error in assuming that the selection process wasCcomplete before the amendment dated 12.03.2018 had come into force.As the approval of DIOS was not granted, no vested right ofappointment was created in favour of the Respondents. Consequently,they submitted that the selection process would have to be governedby the new amended Regulations. They have also contended that asDthe legality of amended Regulations dated 12.03.2018 was notchallenged by the Respondents, the orders of the DIOS dated14.03.2018, 11.10.2018 and 19.03.2018 are in full compliance with thestatute as well as the Regulations.

14. On the other hand, Shri Shankey Agrawal, Shri Vikash Singh,EMs. Jaikriti S Jadeja, Shri Shreyans Raniwala, learned Advocates,appearing on behalf of the Respondents in Civil Appeal Nos. 1882 and1883 of 2023 and Shri Gaurav Agarwal, Ms. Shristi Gupta, and ShriAbhishek Sharma, learned Advocates appearing on behalf of theRespondents in Civil Appeal No. 1884 of 2023, supported the decisionsof the High Court. They contended that the selection process should beFdeemed to have been completed the moment the Committee ofManagement proposed the names for approval to the DIOS. They furthersubmitted that under sub- section (4) of Section 16-FF of the Act, theDIOS does not have the authority to withhold the approval except incases where the selected candidates do not possess minimumGqualifications. They rely on Regulation 18 to contend that the authoritiesare duty bound to grant approval within 15 days of the receipt of the 8 Writ Appeal No. 19069 of 2018.

9 Special Appeal Defective No. 38 of 2019.

H10 Special Appeal Defective No. 42 of 2019.

recommendation of the Selection Committee, failing which there shallbe a deemed appointment. They also relied on certain decisions of thisCourt to contend that Rules existing as on the date on which the vacancyarose will govern the selection process. They would, therefore, submitthat amendment of the Regulations cannot adversely impact theappointment of the present Respondents.

15. Issues: The following issues arise for consideration:

(i) Whether the selection process concluded, and the candidatesacquired a vested right to be appointed before theamendment of the Regulations?

(ii) Whether the Act, read with the Rules and Regulations madethereunder, contemplates ‘deemed appointment’ if theapproval of the DIOS is not given within a period of 15days?

(iii) Whether the posts of teachers could be filled as per theRules and Regulations that existed when the vacancies aroseand not as per the amended Regulations?

16. Educational institutions like the Respondent Colleges areconducted through a Committee of Management, recognised underSection 16-A of the Act[11]. The Management is empowered to appointTeachers as well as the Head of the Institution[12] as per the procedureprescribed in the Act, and the Regulations made thereunder. In thecase of institutions established and administered by minorities, theManagement constitutes a five- member Selection Committee toshortlist and recommend candidates for appointments to theManagement[13]. After receiving the recommendations of the SelectionCommittee, the Management proposes the names to the DIOS forapproval.

17. On 12.03.2018, the Government of Uttar Pradesh notifiedamendments to Chapter II of the Regulations, including Regulation 17,which now prescribes a written examination for the selection of Teachersin minority institutions.

11 hereinafter ‘the Management’.

12 U.P. Intermediate Education Act 1921, section 16-E.

13 U.P. Intermediate Education Act 1921, section 16-E read with proviso to section 16-FF(1).

A

B

C

DE

F

G

H

ARe issue no. 1: Whether the selection process concluded,and the candidates acquired a vested right to be appointed beforethe amendment of Regulations?

18. To consider the submissions of the Respondents that thecandidates whose names are recommended by the Management forBapproval by the DIOS acquire a vested right to be appointed as Teachers,it is necessary to examine Section 16-FF:

16-FF. Savings as to minority institutions

(1) Notwithstanding anything in sub-section C(4) of section 16-E, and section 16-F, the Selection Committeefor the appointment of a Head of Institution or a teacher ofan institution established and administered by a minorityreferred to in clause (I) of Article 30 of the Constitution shallconsist of five members (including its Chairman), nominatedby the Committee of Management:

DProvided that one of the members of the Selection Committeeshall —

(a) in the case of appointment of the Head of an Institution,be an expert selected by the Committee of Managementfrom a panel of experts prepared by the Director;E

(b) in the case of appointment of a teacher be the Head ofthe Institution concerned.

(2) The procedure to be followed by the Selection Committeereferred to in sub- section (1) shall be such as may beFprescribed.(3) No person selected under this section shall be appointed,unless—

(a) in the case of the Head of an Institution the proposalof appointment has been approved by the Regional DeputyGDirector of Education; and (b) in the case of a teacher such proposal has beenapproved by the Inspector.

(4) The Regional Deputy Director of Education or theInspector, as the case may be, shall not withhold approvalH

for the selection made under this section where the personselected possesses the minimum qualifications prescribed andis otherwise eligible.

(5) Where the Regional Deputy Director of Education or theInspector, as the case may be, does not approve of a candidateselected under this section, the Committee of Managementmay, within three weeks from the date of receipt of suchdisapproval, make a representation to the Director in the caseof the Head of Institution, and to the Regional Deputy Directorof Education in the case of a teacher.

(6) Every order passed by the Director or the Regional DeputyDirector of Education on a representation under sub-section(5) shall be final.”

19. Sub-section (3) of section 16-FF of the Act provides that noperson selected and proposed to be appointed as a teacher by theManagement shall be appointed till the proposal is approved by the DIOS.If the expressions ‘no person’, ‘shall be appointed’, and ‘unless’employed in sub-section (3) are given their ordinary meaning, which isthe foremost of the linguistic canons of construction of legislation, wehave no hesitation in holding that appointment is subject to the mandatoryapproval of DIOS. The process of appointment cannot be said to havebeen concluded without obtaining the mandatory approval of the DIOS,and as such, there is no right, much less a vested right, of the candidateto be appointed.

20. This Court had the occasion to examine the effect of approvalby the DIOS in Raj Kumari Cecil (Smt.) v. Managing Committee ofLaxmi Narain Bhagwati Devi Vidya Mandir Girls’ High School[14],while holding that the appointment of the petitioner therein wasunsustainable and incomplete, as the statutory pre-condition for theappointment, i.e., approval from the DIOS, was not obtained, it wasobserved:

“4. There is no dispute that the appellant did not possess thequalifications for being appointed as a Principal of the HigherSecondary School. It is also not disputed that the appointment A

B

C

D

E

F

G

H

Ais subject to approval of the competent authority under theIntermediate Education Act. It is correct that the competentauthority has power to relax the qualification but then againit is not disputed that the competent authority did not relaxthe qualification for theappointment of the appellant asPrincipal of the Higher Secondary School of theBrespondent….

....

13. … The appellant ceased to be Headmistress on upgradationof school of the respondent to the Higher Secondary SchoolCas the post was upgraded. She did not possess qualificationsto be appointed as Principal of the Higher Secondary School.Her qualifications were not relaxed.The competent authorityunder the Intermediate Education Act did not grant approvalfor her appointment as a Principal which is a preconditionunder the law. Since the appointment itself was not approvedDit was not necessary for the Managing Committee of the schoolto get consent of the authority concerned for the terminationof her services as a Principal.”

E21. In view of the clear statutory mandate under Section 16-FF(3)of the Act, we are of the opinion that the High Court has committed anerror in coming to the conclusion that the Respondent nos. 1 to 3 haveacquired a vested right to be appointed.

Re issue no. 2: Whether the Act, read with the Rules andFRegulations made thereunder, contemplates ‘deemedappointment’ if the approval of the DIOS is not given within aperiod of 15 days?

22. Respondents have relied on Regulation 18[15]to argue that ifthe DIOS fails to grant his approval within 15 days of the proposal madeby the Management, the proposed candidates shall be deemed to haveGbeen appointed. Regulation 18, is as under:

“(1) Within fifteen days of the receipt of the recommendationof the Selection Committee constituted under sub-section (1)

15 Regulations under the Intermediate Education Act, 1921, Chapter II, Regulation 18;Hhereinafter ‘Regulation 18’.

or (2) of Section 16-F, and in case of an institution referredto in Section 16-FF, the approval of the authority specifiedtherein, the Manager shall, on authorisation under resolutionof the Committee of Management, issue an order ofappointment by Registered Post to the candidate in the formgiven in Appendix ‘B’ requiring the candidate to join dutywithin ten days of the receipt of such order, failing which theappointment of the candidate will be liable to cancellation.

(2) In case of promotions and ad hoc appointments also aformal order of promotion or appointment in the form as nearas possible to the form referred to in Clause

(1) shall be issued to the person concerned under the signatureof the Manager.

(3) A copy of every order referred to in Clauses

(1) and (2) shall be sent to the Inspector and in case ofappointment of the head of institution, a copy thereof shallalso be sent to the Regional Deputy Director of Education.”

23. We have noticed that appointments are to be made underSection 16-E of the Act. Section 16-F of the Act provides for theconstitution and recommendation of Selection Committees and Section16-FF therein specifically relates to minority institutions. Regulation 18(1)provides for the time within which an order of appointment is to beissued by a Manager to the selected candidate. According to which,where the recommendation is made by a Selection Committee constitutedunder sub-section (1) or (2) of Section 16-F of the Act, an order ofappointment is to be issued within 15 days of the receipt of therecommendation of the Selection Committee. Whereas, in the case ofan institution referred to in Section 16-FF of the Act, i.e., a minorityinstitution, as in the instant case, it is to be issued within 15 days of thereceipt of the approval of the authority specified therein. NeitherSection 16-FF of the Act nor Regulation 18 provides the period withinwhich approval is to be accorded. Further, neither of the two provisionsprovide for deemed appointment in the event of delay in granting approval.Therefore, unless the approval contemplated under Section 16-FF(3) isaccorded, no appointment could take place.

24. In any case, when the relevant statutory provision, i.e. Section16-FF(3) itself makes approval by DIOS mandatory for appointment to AB

C

DE

F

G

H

Athe post of teacher, a Regulation made under the Act could not haveprovided for a ‘deemed appointment’. Subordinate legislation cannottranscend the prescription of a statutory provision.

25. Additionally, sub-section (4) of Section 16-FF of the Act hasto be read in conjunction with Section 16-FF(2) therein, which providesBthat “[t]he procedure to be followed by the Selection Committeereferred to in sub-section (1) shall be such as may be prescribed”.It is only in the cases where the selection procedure, as prescribed in theRegulations, is followed, that there cannot be a disapproval unless thereis a lack of requisite eligibility and qualifications. Thus, the question ofdeemed appointment does not arise under section 16-FF(4) of the Act.C

26. If the statutory provisions read with relevant Regulations wereto provide for ‘deemed appointment’, there would not have been afurther remedy against an order of disapproval by the DIOS. Sub-section(5) of section 16-FF provides the remedy to the College Management inthe event the DIOS does not grant an approval. As per this, theDManagement can within three weeks from the date of receipt ofdisapproval, make a representation to the Regional Deputy Director ofEducation.

27. In view of the legal provision as obtained under Section 16-FF of the Act, read with Regulation 18, we reject the submissions of theERespondents’ that there is a ‘deemed appointment’ of selection underRegulation 18.

Re issue no. 3 : Whether the posts of teachers could befilled as per the Rules and Regulations that existed when thevacancies arose and not as per the amended Regulations?F

28. The Division Bench, as well as the Single Judge of the HighCourt, accepted the submission of the selected candidates that thevacancies to the post of teachers could be filled only as per the Rulesand Regulations that operated when the vacancies arose and not as perthe Regulations that came to be amended thereafter.G

29. We have already held that approval of DIOS is mandatoryand that the Act injuncts the appointment of a Teacher without suchapproval. We have also held that the legal regime concerning theappointment of Teachers does not contemplate any concept of deemedappointment if the DIOS does not decide upon the proposal within 15Hdays. Under these circumstances, the reference to and reliance on the principle that Rules that existed at the time when vacancies arose willgovern the appointments is misplaced.

30. In any event, it is now a settled principle of law that a candidatehas a right to be considered in the light of existing Rules, which impliesRules in force as on the date of consideration. This principle is affirmedby this Court in Deepak Agarwal and Anr. v. State of U.P. and Ors.[16],as below:

“26. It is by now a settled proposition of law that a candidatehas the right to be considered in the light of the existing rules,which implies the “rule in force” on the date the considerationtook place. There is no rule of universal or absoluteapplication that vacancies are to be filled invariably by thelaw existing on the date when the vacancy arises. Therequirement of filling up old vacancies under the old rules isinterlinked with the candidate having acquired a right to beconsidered for promotion. The right to be considered forpromotion accrues on the date of consideration of the eligiblecandidates. Unless, of course, the applicable rule, as inY.V.Rangaiah case lays down any particular time-frame,within which the selection process is to be completed. In thepresent case, consideration for promotion took place afterthe amendment came into operation. Thus, it cannot beaccepted that any accrued or vested right of the appellantshas been taken away by the amendment.”

31. While reaffirming the above referred principle, in a subsequentcase of Rajasthan State Sports Council and Anr. v. Uma Dadhichand Anr.[17], (in which one of us was a member Dr. D.Y. Chandrachud,J., as he then was). This Court noted:

“5. There is merit in the submission which has been urged onbehalf of the appellants that the respondent had no vestedright to promotion but only a right to be considered inaccordance with the rules as they existed on the date whenthe case for promotion was taken up. This principle has beenreiterated in several decisions of this Court. (See H.S. Grewalv. Union of India, Deepak Agarwal v. State of U.P., State of 16 (2011) 6 SCC 725.

17 (2019) 4 SCC 316.

AB

CD

E

F

G

H

Tripura v. Nikhil Ranjan Chakraborty and Union of India v.Krishna Kumar.”

A

32. In a recent decision, in State of Himachal Pradesh and Ors.v. Raj Kumar and Ors.[18], after reviewing a number of decisions on theBsame subject, this Court formulated the following principles:

“70. A review of the fifteen cases that have distinguishedRangaiah would demonstrate that this Court has beenconsistently carving out exceptions to the broad propositionformulated in Rangaiah. The findings in these judgments, thathave a direct bearing on the proposition formulated byRangaiah are as under:

C

1. There is no rule of universal application that vacanciesmust benecessarily filled on the basis of the law whichexisted on the date when they arose, Rangaiah’s case mustDbe understood in the context of the rules involved therein.

2. It is now a settled proposition of law that a candidatehas a right to be considered in the light of the existedrules,which implies the “rule in force” as on the dateconsideration takes place.The right to be considered forEpromotion occurs on the date of consideration of the eligiblecandidates.

3. The Government is entitled to take a conscious policydecision not to fill up the vacancies arising prior to theamendment of the rules. The employee does not acquireany vested right to being considered for promotion inaccordance with the repealed rules in view of the policydecision taken by the Government. There is no obligationfor the Government to make appointments as per the oldrules in the event of restructuring of the cadre is intendedfor efficient working of the unit. The only requirement isthat the policy decisions of the Government must be fairand reasonable and must be justified on the touchstone ofArticle 14.

F

G

4. The principle in Rangaiah need not be applied merelybecause posts were created, as it is not obligatory for theappointing authority to fill up the posts immediately.

5. When there is no statutory duty cast upon the State toconsider appointments to vacancies that existed prior totheamendment, the State cannot be directed to consider”the cases.

B

(emphasis supplied)

33. In view of the clear enunciation of the law, we have no hesitationin rejecting the submission made by the learned counsels for theRespondents, that the vacancies that existed prior to the amendment ofRegulation 17 of Chapter II, must be governed by unamended rules.

C

34. For the reasons stated above, Civil Appeal No. 1882 of 2023,Civil Appeal No. 1883 of 2023, and Civil Appeal No. 1884 of 2023 areallowed. Accordingly, the following judgments of the High Court ofJudicature at Allahabad are set aside: judgment dated 16.01.2019 inDSpecial Appeal Defective No. 42 of 2019; judgment dated 16.01.2019 inWrit Appeal No. 27341 of 2018; judgment dated 18.01.2019 in SpecialAppeal Defective No. 38 of 2019.

35. No order as to costs.

E

Nidhi Jain

(Assisted by : Surbhi Soni and Rakhi, LCRAs)

Appeals allowed.

F

G

H