Uttar Pradesh Higher Education Services Commission Act, 1980 – Uttar Pradesh Education Service Selection Commission Act, 2023 – s.31 – Repeal and Savings – Effect – Appellant placed in the panel of wait listed candidates for the post of Principal in non-Government Aided Colleges – Thereafter, the Director recommended the name of the appellant for appointment as Principal of P.G College – However, on account of his family circumstances, the appellant did not take any step for joining or to take charge for PG College and requested to be appointed as Principal on the vacant posts in some other college or Meerut college – Director contended that in furtherance to the provisions of the Old Act and the recommendation, the appellant was required to join PG College and that after making such recommendation, there existed no provision for changing the place of posting under the relevant Government instructions or the applicable laws – In the meantime, the New Act came to be notified, thereby repealing the Old Act – After repeal, the Director vide order 13.12.2023 recommended the Management to appoint the appellant as Principal of Meerut College and issue appointment order within thirty days – Respondent no.6, then Officiating Principal of Meerut College filed the writ petition on the ground that once a wait listed candidate has been issued direction for appointment at one place, the scheme of the Old Act doesn’t permit any change to the same; that after commencement of the New Act, the Old Act stood repealed and the act done thereunder couldn’t have been changed once the New Act was already in force – Single Judge of the High Court set aside the order dated 13.12.2023 as well as recommendation issued by the Director inter alia observing that the subsequent order directing the Management to appoint the appellant as Principal of Meerut College wholly without jurisdiction and cannot be sustained – Division Bench upheld the same – Interference with:
Held: Output of the findings of the Single Judge and Division Bench of the High Court correct – Since the outcome is in conformity with the provisions of the Old Act as well as the New Act, interference not warranted – Under the Old Act, the select list of the Commission shall be valid till a new list is prepared in accordance with the provisions of such Act – Management of a college/institution can issue an appointment order within a period of one month only on receiving intimation of a candidate’s recommended by the Director – It is only in case a vacancy occurs due to death, resignation, or otherwise, during the period of the validity of the list, the name of a new candidate can be intimated by the Director only – By way of a non obstante clause in sub section (2) of s.31, an act done or action taken under the Old Act shall be deemed to have been done or taken under the New Act – This is not a case where the vacancy arose due to death or resignation – However, it is within the purview of “otherwise during the period of validity of the list” that the appellant claims to be entitled to appointment at an alternate place, as demanded, since the appointment order was not issued to the appellant u/s.13(3) of the Old Act – After the recommendation dated 03.08.2022, if the appellant was not willing to join due to his family circumstances and on finding vacancy at Meerut College, submitted a representation to post him at some other place with the intent to compel the authorities to bring his case within the ambit of s.13(4) of the Old Act, such action will superseding the earlier recommendation and frustrate the purpose of s.13(3) of the Old Act – After commencement of the New Act, the validity of the list/panel under the Old Act will automatically lapse and the authorities are duty bound to follow the procedure u/ss.10 and 11 of the New Act to take steps for appointment on the post of Principal – Thus, the concerned authorities could not have issued the letter dated 13.12.2023 on the basis of the list prepared under the Old Act and thereafter, passed the consequential orders on 12.01.2024 and 15.01.2024, to effectively recommend and appoint the appellant on the post of Principal of Meerut College – Thus, the act done, was the recommendation dated 03.08.2022, which could not be implemented – Authorities have clearly intended that after issuance of the recommendation dated 03.08.2022, no subsequent change in the place of posting can be made in terms of the letter dated 17.08.2023 – Thereafter, on 21.08.2023, the New Act came into force – Thus, there was no occasion for the authorities to issue the order dated 13.12.2023 and, consequent recommendation dated 12.01.2024 and order dated 15.01.2024 in favour of the appellant, under the pretext of s.13(4) of the Old Act indicating that the position had otherwise fallen vacant – With the assistance of s.6 of the Uttar Pradesh General Clauses Act, the effect of repeal of the Old Act is clear insofar as it will not revive the previous list or the act done under the Old Act, which is having the effect of repeal – As regards the locus standi of the Officiating Principal, to challenge the order and subsequent orders which effectively grant appointment to the appellant as Principal of Meerut College, when the illegality of the authorities is writ large and the act done was completely illegal, the issue of locus standi may not be germane to be dealt with in the facts of the case. [Paras 15, 17, 18, 20, 22-25, 28]
Judicial deprecation – Conduct of the officers of the State of Uttar Pradesh:
Held: Duty of the State and its officials while filing their counteraffidavit and arguing the case before the Court is to provide real assistance – Such assistance ought to be based on the facts, and by applying the law applicable to the case at hand – It is not expected from the authorities to support any party contrary to the law or by filing affidavit which does not disclose the facts in conformity with the law – On facts, after commencement of the New Act on 21.08.2023, it was not open to the authorities to act in terms of the list prepared under the Old Act, even after reflecting on their intention to not grant appointment to the appellant-a wait listed candidate only four days prior to the commencement of the New Act – Thereafter, there was absolutely no occasion for the Director to get the old list revived and write in favour of the appellant on 13.12.2023 – Chief Secretary of the State of Uttar Pradesh may look into the conduct of the officers who have filed the affidavit taking such unlawful stand before the High Court and even before this Court, which is completely impermissible under the law and contrary to the finding of the High Court – Since the concerned officers not a party to this case, no inclination to issue any adverse direction, however, left it open to the State of Uttar Pradesh to look into the above observations and take the recourse in accordance with the law, if necessary. [Para 26]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain (2008) 5 SCC 217. 5 (2013) 4 SCC 465.. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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