U.P. Intermediate Education Act | No 'Deemed Appointment' Of Selected Candidate If DIOS Doesn't Give Approval Within 15 Days : Supreme Court

The Supreme Court has held that the U.P. Intermediate Education Act, 1921 does not contemplate ‘deemed appointment’ of a candidate if the District Inspector of Schools (“DIOS”) does not approve the proposal for appointment of the candidate within 15 days period, as given under Regulation 18 of the ‘Regulation under the U.P. Intermediate Education Act, 1921’. The selection process of the candidate concludes only after the mandatory approval of the DIOS is granted.

The Bench comprising of Justice Dinesh Maheshwari and Justice Sanjay Kumar, while adjudicating an appeal filed in The State of Uttar Pradesh & Ors. v Rachna Hills & Ors., has held that Section 16-FF(3)of U.P. Intermediate Education Act, 1921 itself makes approval by DIOS mandatory for appointment to the post of teacher. Therefore, a Regulation made under the said Act could not have provided for a ‘deemed appointment’. Subordinate legislation cannot transcend the prescription of a statutory provision.

BACKGROUND FACTS

In Uttar Pradesh, the Schools and intermediate educational institutions are governed by the Uttar Pradesh Intermediate Education Act, 1921 (“Intermediate Act”) and Regulations under the U.P. Intermediate Education Act, 1921 (“Regulations”). Section 16-FF of the Intermediate Act and Regulation 17 of the Regulations provide the procedure for the selection and appointment of Heads of Institutions and Teachers in minority institutions. Further, Section 16-FF(3) of the Intermediate Act mandates that no person selected as a Teacher shall be appointed unless the proposal for appointment is approved by the District Inspector of Schools (“DIOS”).

Two aided minority institution initiated the process of selection of Assistant Teachers and forwarded their proposals to the DIOS for approval. Before the requisite approval was granted, the Government amended Regulation 17, prescribing a new procedure for selection w.e.f. 12.03.2018. The amended Regulation 17 now prescribes a written examination for the selection of Teachers in minority institutions.

Consequently, the DIOS returned the proposal of institutions for compliance with the new procedure. The Institutions filed a writ petition before the High Court, challenging the DIOS’ decision requiring the Management to follow the new Rules. The Single Judge of High Court set aside the decision and directed the DIOS to reconsider the decision, on the ground that the amended Regulations would not apply as the selection process had attained finality.

In compliance of the High Court order, the DIOS passed an order stating that the selection process did not culminate in the grant of approval under Section 16-FF of the Intermediate Act and the selection is not final. The DIOS observed that before the appointment of Teachers could be approved, the Regulations stood amended, necessitating compliance with the new procedure for selection.

The selected candidates filed another writ petition before the High Court challenging the decision of DIOS. The High Court held that once the Management forwards the names of selected candidates to the DIOS for approval, the selection process concludes and the proposed candidates acquire a vested right to be appointed. The High Court relied on a principle that the selection process with respect to vacancies which arose prior to the amendment of the Regulations would be governed by the unamended Regulations.

The State of U.P. filed an appeal before the Supreme Court challenging the High Court’s order.

SUPREME COURT VERDICT

Subordinate legislation cannot transcend the prescription of a statutory provision

The candidates while relying on Regulation 18 of the Regulations argued if the DIOS fails to grant approval within 15 days of the proposal made by the Management, then the proposed candidates shall be deemed to have been appointed. On this issue the Bench observed that Section 16-F of the Intermediate Act provides for the constitution a of Selection Committees and Section 16-FF specifically relates to minority institutions.

Further, Regulation 18(1) of Regulations provide the time within which an order of appointment is to be issued by a Manager to the selected candidate. When a Selection Committee constituted under Section 16F(1) or (2) makes recommendation, an order of appointment is to be issued within 15 days of the receipt of the said recommendation. However, in the case of minority institutions, the order of appointment it is to be issued within 15 days of the receipt of the approval of the authority specified therein. The Bench observed as under:

“Neither Section 16-FF of the Act nor Regulation 18 provides the period within which approval is to be accorded. Further, neither of the two provisions provide for deemed appointment in the event of delay in granting approval. Therefore, unless the approval contemplated under Section 16-FF(3) is accorded, no appointment could take place.

In any case, when the relevant statutory provision, i.e. Section 16-FF(3) itself makes approval by DIOS mandatory for appointment to the post of teacher, a Regulation made under the Act could not have provided for a ‘deemed appointment’. Subordinate legislation cannot transcend the prescription of a statutory provision.”

Selection process concludes only after the mandatory approval of the DIOS is granted, there is no place for a deemed appointment

The Bench further observed that Section 16-FF(4) of the Intermediate Act has to be read in conjunction with Section 16-FF(2), which provides that “the procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed”. It was opined that in cases where the selection procedure prescribed in Regulations is followed, that there cannot be a disapproval unless there is a lack of requisite eligibility and qualifications. Therefore, the question of deemed appointment does not arise under section 16-FF(4) of the Intermediate Act.

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

The Bench held that the selection process concludes only after the mandatory approval of the DIOS is granted, there is no place for a deemed appointment.

On the remaining issues, the Bench held that the candidate has no vested right to be appointed merely because selection process has been completed, approval of DIOS is mandatory. Further, the vacancies to the teaching posts in Uttar Pradesh which arose prior to amendment of Regulation 17 of the ‘Regulations under the U.P. Intermediate Education Act, 1921’, are to be governed by amended rules.

Case Title: The State of Uttar Pradesh & Ors. v Rachna Hills & Ors.

Citation : 2023 LiveLaw (SC) 360

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