- (1.) G. P. Mathnr, J. This Special Appeal has been filed challenging the judgment and order dated April 7, 1995 of the learned Judge dismissing Writ Petition No. 6645 of 1995 filed by the appellants.
(2.) IN order to appreciate the controversy involved in the appeal, it is necessary to mention the relevant facts. A large number of posts of Assistant Teachers in Government Colleges in the State were lying vacant as regular selection could not be made by the Commission. Since teaching in the College was being severally affected, a Government Order was issued on July 15, 1989 directing that ad hoc appointment be made in order to fill in the vacancies. It was mentioned that the aforesaid ad hoc appointments will only be for a period of one year or till a regularly selected candidate joined the post whichever contingency took place earlier. IN pursuance of the Government Order, the Director of Education issued an advertisement in August, 1986 for making a selection on the post of Assistant Teacher and it was mentioned therein that the appointment will come to an end on May 20, 1990 or when a regularly selected candidate joins the post, whichever contingency occurred earlier. It appears that appellants Radhey Shyam and Pradeep Kumar were selected and an appointment order appointing them as Assistant Teacher was issued in January, 1991. IN the appoint ment order, it was clearly mentioned that the same was purely temporary and would come to an automatic end on May 14, 1991, or could be terminated even before that date by one month's notice or payment of one month's salary in lieu thereof. One Manjuvati, who had also been appointed in accordance with the same Government Order dated July 15, 1989 filed Writ Petition No. 14794 of 1991- Manjuvati, v. State of U. P. , challenging the action of the respondent in not permitting her to work as Assistant Teacher after May 20, 1991. It is noteworthy that a similar condition had been mentioned in her appointment order namely, that her appointment would come to an automatic end on May 20, 1991. The writ petition was allowed on July 13, 1991 and the operative portion of the order reads as follows :- "for the reasons stated above this writ petition is allowed. The petitioners shall be allowed to continue on the post as teacher until a candidate duly selected and recommended joins the post and shall be entitled to get all benefits like regular teacher including back wages, if any". While allowing the writ petition, the court issued a general direction that all such teachers who had been appointed on ad hoc basis in pursuance of the Government Order dated July 15, 1989 shall be allowed to continue on their posts on which they were appointed and shall be entitled to the same benefits as that of Manjuvati, who had filed the writ petition. The judgment of this court is reported in 1991 (2) UPLBEC 980. It is admitted position that the judgment and order, dated July 13, 1991 of this Court became final and binding between the parties as the same was not challenged by filing any appeal. The appellants who had also been appointed as ad hoc teacher in pursuance of the same Government Order also got the benefit of the judgment rendered in the case of Manjuvati (supra), and continued to work as Assistant Teacher on ad hoc basis in a Government College, The Government of Uttar Pradesh exercising powers conferred by the provisio to Article 309 of the Constitution, made the U. P. Subordinate Educational (Graduates Grade) Service Rules, 1983 which were published on July 6, 1983. Rule 2 of this Rules provides that the U. P. Subordinate Educational (Trained Graduates Grade) Service comprises Group 'c' posts and sub-rule (h) of Rule 3 defines 'service' as the U. P. Subordinate Educa tional (Trained Graduates Grade) Service. Sub-rule (1) of Rule 3 lays down that "substantive appointment" means an appointment not being an ad hoc appointment on a post in the cadre of the service, made after selection in accordance with the Rules and if there are no rules, in accordinance with the procedure prescribed for the time being by Executive instructions issued by the Government. In order to establish a Subordinate Services Board for certain categories of Subordinate Services and for matters connected there with and incidental thereto, the State Legislature enacted the U. P. Subordi nate Service Selection Board Act, 1988 which received the assent of the Governor on March 31, 1988 and was published 00 the same date. Section 2 of this Act lays down that the provisions of the Act shall apply in relation to direct recruitment to all such Group 'c' posts as may be specified by the State Government by Notification in this behalf. A Notification was thereafter issued on November 25, 1989 in exercise of powers under sub section (1) of Section 2 of U. P. Subordinate Services Selection Board Act, 1988 (hereinafter referred to as the Act) specifying the posts mentioned in the Schedule attached to the Notification as Group 'c' post to which the aforesaid Act applied in relation to direct recruitment. In the Schedule, the U. P. Education Service (Senior and Junior) Pay Scales was mentioned at SI. No. 17 and post of Assistant Teacher L. T. Grade was shown as belonging to the said Service. The result of the aforesaid Notification was that the selection on the post of Assistant Teacher L. T. Grade was to be made by U. P. Subordinate Services Selection Board (hereinafter referred to as the Selection Board ). The Selection Board issued an advertisement on May 23, 1992 inviting applications for appointments on the post of Assistant Teacher in L. T. Grade including the appointment in the Hill Cadre and the last date for submitting the application was June 15, 1992. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 were amended on November 6, 1992 and U. P. Subordinate Education (Trained Graduates Grade) Service (First Amendment) Rules, 1992 were promulgated. Under the Amended Rules, the procedure of recruitment on the post of Assistant Teacher for L. T. Grade was entirely changed and it was provided that such appointments shall be made on the basis of a selection conducted by a Regional Selection Committee chaired by the Regional Deputy Director of Education. This was followed by a Notification dated February 15, 1993 issued under Proviso to Section 2 (1) of U. P. Subordinate Services Selection Board Act, 1983 whereby the post of Assistant Teacher in L. T. Grade was withdrawn from the purview of U. P. Subordinate Services Selection Board. In pursuance of the advertisement issued by Selection Board on May 23, 1992 for holding selection on the post of Assistant Teacher in L. T. Grade, a large number of candidates made applications. The Board commenced interview from April 19, 1994 and the result was published on January 22, 1995. The State Government, thereafter, took steps for making appointments of those persons who had been selected by the Selection Board as Assistant Teacher in Government Colleges and as a result of the appointments o made the services of such teachers who had been appointed on ad hoc basis in pursuance of the Government Order, dated July 15, 1989 were terminated. The appellants, who had also been appointed on ad hoc basis, challenged the termination of their services by filing the writ petition. Having failed to get any relief from the learned Single Judge they have preferred the present Special Appeal.
(3.) THE principal submission of Sri Ashok Khare, learned counsel for the appellants is that in terms of the order passed by this Court on July 13, 1991 in the case of Manjuvati (supra), which is binding upon the parties, the appellants are entitled to continue on the posts as teacher until a candidate duly selected and recommended joins the post and as in the pre sent case no proper selection has been made, they are entitled to continue as Assistant Teachers and the order passed by the Authorities terminating their services is illegal. It is submitted that the Selection Board had merely invited the application for the post of Assistant Teacher by issuing an advertisement on May 23, 1992 but on account of amendment to U. P. Sub-ordinase Educational (Trained Graduates Grade) Service Rules, 1933 by the First Amendment on November 6, 1992 the procedure for recruitment on the post of Assistant Teacher was drastically changed and it was provided that such appointments shall be made on the basis of a selection conducted by the Regional Selection Committee. It has been further submitted that the State Government having issued a Notification on February IS, 1993 withdrawing the post of Assistant Teacher from the purview of the Selection Board, the Selection made by the Board and the result declared by it on January 22, 1995 was without any authority of law and thus the candidate selected by the Board cannot be held to be 'duly selected and recommended* and consequently the appellants are entitled to continue. THE question to be considered is whether it is open to the appellants to challenge the selection made by the Selection Board and if so whether on account of the Notifica tion issued by the State Government on February 15, 1993 withdrawing the post of Assistant Teacher from the purview of the Selection Board, the Selection made by the Board, result whereof was declared on January 22, 1995, has become illegal. The facts, mentioned above, would show that U. P. Subordinate Educational Trained Graduates Grade) Service comprises Group '' posts and the Selection Boards Act, 1988 applies in relation to direct recruitment to all such Group '' posts which may be specified by the State Government by Notification in this behalf. The State Government issued a Notification on November 25,1989 specifying the post of Assistant Teacher L. T. Grade as a Group 'c' post to which Selection Boards Act 1988 applied in relation to direct recruitment. Therefore, after the aforesaid Notification had been issued, it was the Selection Board which had the Authority to make selection on the post of Assistant Teacher. The Selection Board issued advertise ment on May 22, 1992 inviting applications for the post of Assistant Teacher and the last date for submitting the application was June 15, 1992. It was after quite sometime that on November 6, 1992, the U. P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983, where amended and it was provided that the Selection would be made on the basis of a Regional Selection Committee. The post of Assistant Teacher was actually withdrawn from the purview of the Selection Board on February 15,1993. The State Government also sent a communication clarifying that the selection on the vacancies which had already been intimated to the Selection Board prior to the amendment in the Rules on November 6, 1992 shall be done by the Board itself and the amended Rules will not apply to such vacancies. This was reiterated in a communication sent by the Government on August 8, 1993 to the Secretary of the Selection Board that the vacancies which had been notified prior to February 15, 1993 shall be made by the Board itself. Copies of these communications have been attached as Annexures 10 and 11 to the affidavit. Once the process of selection has commenced, a candidate, who is eligible and otherwise qualified in accordance with the relevant rules and the terms of advertisement, acquires a vested right for being considered for selection in accordance with the rules as they existed on the date of advertisement He cannot be deprived of that right on the amendment of the rules during the pendency of selection unless the amended rules are retrospective in nature. In N. T. Baven Katti v. Karnataka Public Service Commission, AIR 1990 SC 1233, it was held as follows :- "where advertisement is issued inviting applications for direct recruit ment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate had right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement. ". The amendment in the rule was not retrospective. There is nothing to indicate either in the rules or in the Notification issued by the State Govern ment on February IS, 1993 which may show that any retrospective effect was being given to the Rules or that Selection on all pending vacancies was to be made by the Regional Selection Committee. Therefore, once the process of selection had commenced on May 23, 1992 by the Selection Board by issuing an advertisement inviting applications, the candidates who made applications in response thereto acquired a vested right to be considered by the Selection Board and their right could not be effected by subsequent amendment in the Rules or Notification dated February 15, 1993. For such candidate, the selection process had to be completed by the Selection Board and therefore, it was fully entitled to hold interview and the result of such interview published in January 22, 1995 is perfectly legal and valid. The candidates who have been so selected by the Board are in law 'regularly selected candidates' and the State Government is fully entitled to appoint such candidates as Assistant Teachers in Government Colleges.;