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PETITIONER: A.A. CALTON

       Vs.

RESPONDENT: THE DIRECTOR OF EDUCATION & ANOTHER

DATE OF JUDGMENT25/03/1983

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S. (J) SEN, AMARENDRA NATH (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1983 SCC  (3) 280        1983 SCALE  (1)316

ACT:      U.P. Intermediate  Education Act.  1921, s. 16-F(4), as amended  by   U.P.  Act   of  1975-Scope   of-Amendment  not applicable to pending proceedings.      Interpretation-Retrospective operation of statute.

HEADNOTE:      Under s.  16-F(4) of  the U.P.  Intermediate  Education Act, 1921 the Director of Education had the power to appoint the Principal  of a  recognised institution from amongst the qualified persons  who had  applied for  that post,  if  the recommendation  made  under  sub-s.  (2)  by  the  Selection Committee  constituted   under  s.   16-E  had   twice  been disapproved  by   the  Regional   Deputy  Director  and  the representation of the management of the institution, if any, under sub-s.(3)  against that disapproval had been rejected. This  power   of  the   Director  in  relation  to  minority institutions was  taken away  by the amending Act 26 of 1975 with effect from August 18, 1975.      Respondent No.  2 was appointed Principal of a minority institution by the Director of Education on March 8, 1977 in exercise of  his power  under s.  16-F(4) of  the  Act.  The process of  selection for  the post  in  question  had  been commenced in  1973 and  the recommendation  of the Selection Committee had  been rejected  twice by  the Regional  Deputy Director  of   Education.  The   appellant  challenged   the appointment  on   the  ground   that  (i)  on  the  date  of appointment the Director had no power to appoint a Principal of a  minority institution  as it had been taken away by the amending Act;  and (ii) that in any event the Director could not have  appointed respondent  No. 2  as his  selection had been disapproved  earlier by  the Deputy  Director. The High Court dismissed the writ petition.      Dismissing the appeal, ^      HELD: No  retrospective effect  should be  given to any statutory provision so as to impair or take away an existing right, unless  the statute  either expressly or by necessary implication directs  that it  should have such retrospective effect. The amending Act had no retrospective effect. It did

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not provide  expressly that  the amendment in question would apply to  the pending  proceedings under s. 16-F, nor did it contain any words which by necessary intendment would affect such pending  proceedings. The process of selection under s. 16-F commencing  from the  stage of calling for applications or a post 599 upto the date on which the Director becomes entitled to make a selection  is an  integrated one.  At every  stage in that process certain  rights are  created in favour of one or the other candidates. [603 B, 602 G-H, 603 A]      In the  instant case, the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved  the recommendations  made by  the Selection Committee twice  the Director  acquired the  jurisdiction to make an  appointment from  amongst the qualified candidates, who had  applied for  the vacancy  in question. Although the Director exercised  that power subsequent to August 18, 1975 on which  date the  amendment came  into force, it cannot be said that the selection made by him was illegal. [603 B-D]      The Act  does not  state that  a person  who  had  been recommended  by   a  Selection   Committee  once  and  whose selection had been disapproved by the Deputy Director should not be  considered for  the post in question by the Director when he  exercised his power under s. 16-F(4). The fact that the Deputy  Director had  disapproved the  recommendation of the Selection  Committee recommending  respondent No.  2 for the post  in question  once before  cannot be  construed  as amounting to a disqualification. [603 F-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2264 of 1979.      Appeal by  Special leave  from the  Judgment and  Order dated the  30th March,  1979 of  the Allahabad High Court in Civil Misc. Writ Petition No. 417 of 1977).      R.K. Jain for the Appellant.      Bishamber Lal Khanna and S.K. Gupta for the Respondent.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The appellant  who was  unsuccessful before the  High Court of Allahabad in a writ petition filed by him  under Article 226 of the Constitution has filed this appeal by  special leave  against the  judgment of  the High Court. In the writ petition the appellant had questioned the validity of  the appointment  of Mr. A.P. Joseph, respondent No. 2  herein as  the Principal of the Ranikhet Intermediate College, Ranikhet,  which was  a minority institution having the  protection   of  Article  30  of  the  Constitution  in preference to  him. The  proceedings for  the selection of a qualified person  to the  post in  question commenced in the year 1973. The Selection Committee constituted under section 16-E  of   the  U.P.   Intermediate  Education   Act,   1921 (hereinafter referred  to as  ’the  Act)  recommended  three persons viz. Shri Bindeshwari Prasad 600 Shri S.C.  Khyali and the appellant. The appellant was given the third  rank in  that recommendation. The Regional Deputy Director of Education did not approve of the said selection. The matter was again remitted to the Selection Committee. On the second occasion, the Selection Committee recommended the names of  the  appellant  and  respondent  No.  2  assigning respondent No.  2 a  higher rank.  That selection  also  was disapproved by  the Deputy Director. The Selection Committee

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thereafter  made   a  third  recommendation.  The  appellant preferred a  writ petition before the High Court questioning the validity  of the  third selection  made by the Selection Committee. The  High Court  by its judgment dated August 19, 1975 allowed his writ petition quashed the selection made by the Selection  Committee on  the  third  occasion  as  being without jurisdiction  and having regard to the fact that the post in  question was  that of  the Principal  directed  the Director of  Education to  make an appointment in accordance with section  16(F)(4) of the Act. Pursuant to the direction of the  High Court,  after  considering  the  cases  of  the qualified candidates  who had  applied for  the  vacancy  in question, the  Director appointed  respondent No.  2 to  the post by  his  order  dated  March  8,  1977.  The  appellant questioned this  appointment by  the writ  petition  out  of which this  appeal arises  before the  High Court.  The High Court dismissed  the petition. This appeal by special appeal is filed against the judgment of the High Court.      Before  the   High  Court   the  appellant  raised  two contentions:      1.   The appointment  made by  the Director was opposed           to the  relevant provisions  of the  Act  as  they           stood on the date of the appointment since on that           day by  reason of the amendment made to the Act by           U.P. Act  26 of  1975 which had come into force on           August 18, 1975, the power of the Director to make           an appointment  had been taken away in relation to           minority institutions.      2.   In any event the Director could not have appointed           respondent No.  2 for the post since his selection           had  been   disapproved  earlier   by  the  Deputy           Director.      Both these  contentions  were  negatived  by  the  High Court. They are again urged before us. 601      Section 16-F  of the  Act, as  it stood prior to August 18, 1975 read thus :           "16-F. (1)  Subject to  the provisions hereinafter      specified, no person shall be appointed as a Principal,      Headmaster  or  teacher  in  a  recognised  institution      unless he-           (a) possesses the prescribed qualifications or has      been exempted under sub-section (1) of section 16-E,           (b) has  been recommended  by selection  committee      constituted under  sub-section (2)  or (3), as the case      may be,  of the  said section and approved, in the case      of Principal  or  Headmaster  by  the  Regional  Deputy      Director, Education and in the case of a teacher by the      Inspector :           Provided that  if the  Inspector is satisfied that      for any  institution, no  candidate, who  possesses all      the  prescribed   qualifications,  is   available   for      appointment, he may permit the institution to employ as      a temporary  measure any  suitable person  for a period      not exceeding  one year.  Such period  may be  extended      with the prior approval of the Inspector :           Provided also that in the case of leave vacancy or      of a vacancy occurring for a part of the session of the      institution, it  shall be  lawful for  the Committee of      Management  to   appoint  a  Principal,  Headmaster  or      teacher  if  information  of  such  an  appointment  is      immediately conveyed to the Inspector.           (2) The  name of  the selected  candidate shall be      forwarded for  approval, in  the case  of a teacher, by      the Principal  or Headmaster  to the  Inspector, and in

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    the case of Principal or Headmaster, by the Chairman of      the  Selection   Committee  to   the  Regional   Deputy      Director, Education.  A statement  showing  the  names,      qualifications,  and   other  particulars   as  may  be      prescribed, of  all candidates who may have applied for      selection shall also be sent along with the name of the      selected candidate.  The Inspector  or Regional  Deputy      Director, Education, as the case may be, shall give his      decision within two 602      weeks of  the receipt  of the  relevant papers, failing      which approval shall be deemed to have been accorded.           (3) Where the Regional Deputy Director, Education,      or the  Inspector, as  the case may be, disapproves for      reasons to  be recorded in writing of any name proposed      under sub-section (1), the management may, within three      weeks  of  the  receipt  of  the  disapproval,  make  a      representation against  it to  the Director in the case      of a Principal or Headmaster and to the Regional Deputy      Director, Education,  in the case of a teacher, and the      decision  of   the  Director  or  the  Regional  Deputy      Director, Education,  as the case may be, in the matter      shall be final.           (4) Where the recommendation made under subsection      (2) has  been disapproved and the representation of the      management, if  any, under  sub-section  (3)  has  been      rejected, the  Selection  Committee  shall  proceed  to      select and  recommend  another  name  for  approval  as      provided under  section 16-E and 16-F. If the selection      so made is again disapproved and the representation, if      any, against the disapproval has not been accepted, the      Regional  Deputy  Director,  Education  in  case  of  a      teacher and  the Director in the case of a Principal or      Headmaster may  appoint any qualified person out of the      list of  the candidates  applying for the vacancies and      such appointment shall be final."      It is  no doubt  true that  the Act was amended by U.P. Act 26  of 1975  which came  into force  on  August  18,1975 taking away the power of the Director to make an appointment under section  16-F (4)  of the  Act in the case of minority institutions. The  amending Act  did not,  however,  provide expressly that  the amendment  in question  would  apply  to pending proceedings under section 16-F of the Act. Nor do we find any  words in  it which  by necessary  intendment would affect such  pending proceedings.  The process  of selection under section  16-F of  the Act commencing from the stage of calling for  applications for  a post upto the date on which the Director  becomes entitled  to make  a  selection  under Section 16-F(4)  (as it stood then) is an integrated one. At every stage  in that  process certain  rights are created in favour of  one or  the other of the candidates. Section 16-F of the Act cannot, therefore, be construed 603 as merely  a procedural  provision.  It  is  true  that  the Legislature may  pass laws with retrospective effect subject to the  recognised constitutional  limitations.  But  it  is equally well  settled that no retrospective effect should be given to  any statutory  provision so  as to  impair or take away an  existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect.  In the  instant case  admittedly  the proceedings for the selection had commenced in the year 1973 and  after   the  Deputy   Director  had   disapproved   the recommendations made  by the  Selection Committee  twice the Director acquired  the jurisdiction  to make  an appointment

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from amongst  the qualified  candidates who  had applied for the vacancy  in question.  At the  instance of the appellant himself in  the earlier  writ petition filed by him the High Court had  directed the  Director to  exercise  that  power. Although the  Director in  the present  case exercised  that power subsequent  to August  18,  1975  on  which  date  the amendment came  into force,  it  cannot  be  said  that  the selection made by him was illegal since the amending law had no retrospective  effect. It  did not have any effect on the proceedings which  had commenced  prior to  August 18, 1975. Such proceedings  had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do  not, therefore,  find any substance in the contention of the  learned counsel  for the  appellant that  the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case.      In so  far as the second contention is concerned, it is to be  stated that  the Act does not state that a person who had been recommended by a Selection Committee once and whose selection had been disapproved by the Deputy Director should not be  considered for  the post in question by the Director when he exercises his power under sub-section (4) of section 16-F of  the Act.  That provision merely states that in such an event,  where the  post to  be filled  up is  that  of  a Principal or  a Headmaster,  the Director  may  appoint  any qualified person from amongst the candidates who had applied for the  vacancy and  that such  appointment shall be final. The respondent  No. 2  satisfied  the  requirement  of  sub- section (4)  of section  16-F of  the Act. The fact that the Deputy Director  had disapproved  the recommendation  of the Selection  Committee   recommending  him  for  the  post  in question once  before cannot  be construed as amounting to a disqualification. It is also to be noticed 604 that under section 16-F(4) of the Act it is the Director who is authorised to make the appointment of a Principal and not the Deputy  Director. There  is,  therefore,  no  ground  to interfere with the judgment of the High Court.      In view  of the  foregoing, the  appeal  is  dismissed. There shall be no order as to costs. H.S.K.                                     Appeal dismissed. 605