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PETITIONER: KIRAN GUPTA & ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF U.P. & ORS. ETC.

DATE OF JUDGMENT:       28/09/2000

BENCH: Syed Shah Mohammed Quadri & Shivaraj V. patil

JUDGMENT:

SYED SHAH MOHAMMED QUADRI, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Leave to file appeal is granted in all the Petitions for Special Leave.

   The common judgment and order of a Division Bench of the High  Court  of Judicature at Allahabad in a batch  of  writ petitions  and special appeals delivered on October 6,  1998 is  under challenge.  The unsuccessful writ petitioners  are the  appellants  in these appeals.  The controversy  in  the writ  petitions  as  also in these appeals  relates  to  the selection  and  appointment  of  Principals/Headmasters   of various  recognised private aided intermediate colleges  and secondary schools in Uttar Pradesh and other allied matters.

   The  conclusions  reached by the Division Bench  of  the High  Court, in the impugned judgment, may be summarised  as follows :

   (1)  the constitutional validity of Sections 9,10 and 11 of  the  U.P.  Secondary Education Services  Commission  and Selection  Boards  Act, 1982 (for short, ‘U.P.  Act No.5  of 1982’)  as amended by U.P.  Act No.15 of 1995 and also  Rule 12  of  the  U.P.  Secondary Education  Services  Commission (Amendment)  Rules, 1995 (for short, ‘the 1995 Rules’),  was upheld;   (2)  the  selection  of  candidates  by  the  U.P. Secondary  Education  Services Commission (for  short,  ‘the Commission’)  and the notifications issued on August 3, 1996 and  August 30, 1996 were found to be valid;  (3) the  panel of  selected candidates prepared on April 15, 1997 was  held not vitiated by the notification issued by the Government of U.P.   on  April 17, 1997 and it was directed that the  same should  be  implemented  by the educational  authorities  in accordance  with  law;   and  (4) it was left  open  to  the Director  of  Education,  and if so ordered by him,  to  the Deputy  Director of Education to inquire into the  requisite qualifications  of the selected candidates;  if it is  found that   the   requisite  qualifications   for  the  post   of Principal/Headmaster  were  not  possessed  by  any  of  the selected   candidates,  the   Director  of  Education/Deputy Director  of  Education shall, after giving  him  reasonable opportunity  of  being  heard, determine  the  question  and thereafter  refer  it  to the Board which  was  directed  to reconsider his selection after giving due opportunity to the candidate  and for that limited purpose the matter should be

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deemed  to be pending before the Board under the  provisions of  sub-section  (6) of Section 3 of the U.P.   Intermediate Education Act, 1921 (for short, ‘the Act’) as amended by the U.P.   Act  No.25 of 1998.  The factual matrix in which  the aforementioned  conclusions  are recorded by the High  Court needs  to  be noticed here.  For educational  purposes,  the State  of  U.P.  was divided into 13 regions which had  1504 vacancies   of  teachers,   Principals/Headmasters,  as   on December  13, 1995 when an advertisement was issued inviting applications  from the eligible persons to appoint  suitable candidates.   It  appears  that about  one  lakh  applicants responded.   After short-listing them under the 1995  Rules, 7,500  candidates  were called for interviews and  selection for  the  posts  of Principals/Headmasters  of  13  regions, including  the Meerut region, was completed.  This batch, we are  told, relates to selection of Principals/Headmasters in Meerut  region.  There were 258 posts in that region and out of  them interviews were held for 253 posts.  The  selection of  Principals/Headmasters  in Meerut region, based on  oral interview  and the panel of selected candidates of April 15, 1997,  were  challenged  by the unsuccessful  candidates  by filing  writ  petitions in the High Court.  The validity  of the  provisions of Sections 9 and 10 of U.P.Act No.5 of 1982 and  Rule  12  of the 1995 Rules was also  questioned.   The senior  teachers  working as ad hoc  Principals/Headmasters, who were not selected, sought their regularisation under the provisions   of  U.P.Act  No.5  of  1982.   The   contesting respondents   supported  the  legality   of   the   impugned provisions  and defended both the procedure adopted and  the panel of the selected candidates prepared by the Commission. The claim for regularisation, it was pleaded, was unfounded. On  these pleas, the High Court recorded the  aforementioned findings  and thus disposed of all the cases by the impugned order which gave rise to these appeals.  Mr.P.K.Goswami, the learned senior counsel appearing for the appellants in Civil Appeal  Nos.   of  2000  [@  S.L.P.   (C)  Nos.19035-38/98], advanced the following contentions :  (i) By Sections 9 & 10 of U.P.Act No.5 of 1982, the essential legislative functions of  laying  down  guidelines  have   been  assigned  to  the Commission  and  that inasmuch as Rule 12 of the 1995  Rules prescribes   selection  of  suitable   candidates  by   oral interview  without  laying  down   any  criteria,  the  said provisions  are illegal and unconstitutional and are  liable to be struck down;  and (ii) even assuming that the impugned provisions of U.P.Act No.5 of 1982 and Rule 12(3) are valid, the   process  of  selection  by  interview  alone   confers arbitrary  power  on  the Commission;   he  elaborated  this submission  by placing reliance on various decisions of this Court  and  asserted that in cases when 15 per cent  of  the total marks were prescribed for interview, it was held to be arbitrary  so the selection solely on the basis of viva voce was  a fortiori illegal.  These and other contentions, which will  be  referred  to presently, urged by  Mr.Goswami  were adopted  by Mr.P.N.Misra, learned senior counsel,  Mr.Pramod Dayal,  Mr.B.M.Sharma, Mr.P.K.Jain, Mr.Shrish Kumar  Mishra, learned  counsel  appearing for the appellants in the  other appeals.    Mr.Shanti   Bhushan,   learned  senior   counsel appearing  for  the respondents - selected  candidates,  has contended   that  there  is  no  delegation   of   essential legislative  functions  by the Legislature under Sections  9 and  10  of  U.P.  Act No.5 of 1982;   that  preparation  of guidelines  in  regard  to  method  of  recruitment  by  the Commission  which  consists of experts, the  most  competent body,  is  a  matter  of giving effect  to  the  legislative policy.   He argued that under Rule 12(3) of the 1995 Rules,

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(i) the Government rightly prescribed selection by interview for  appointment of the in- service teachers, at the fag end for    their    service   career,    to   the    posts    of Principals/Headmasters, and (ii) the selection was entrusted to  an  expert body, well-informed on the subject and  whose opinion  in  regard to selection of the candidates,  in  the absence  allegation of mala fide, would be proper and  legal and  that  a  written test in such cases would be  the  most inappropriate  method.   The  scheme for  selection  of  the candidates, submitted the learned counsel, required awarding quality   points  for   academic  qualifications,  training, administrative  experience, etc.  and it was on the basis of the  marks secured by them, that they were short-listed  and called  for interview for judging their personality  keeping in view the seven factors specified in the guidelines by the Commission,  thus, there was nothing arbitrary or illegal in the selection process.  Mr.Subodh Markandeya, learned senior counsel for the State of U.P., supported the judgment of the High Court in regard to validity of the impugned provisions. To  appreciate  these contentions, it will be  necessary  to refer   to  the  relevant  enactments   from  the  maze   of legislation  dealing with matters relating to education  and appointment  of  Teachers, Principals/Headmasters, in  Uttar Pradesh.   The  first  enactment  to   be  noticed  is   the U.P.Intermediate  Education Act, 1921 (for short ‘the Act’). A  Board  is  established  under the  Act  to  regulate  and supervise  the system of education, including appointment of teachers  at the high school and intermediate level in  U.P. The  Act  conferred power on the Board to frame  Regulations for  purposes  of  the  Act.    Regulation  10(dd)  of   the Regulations,  framed by the Board, prescribed the  procedure for filling up the vacancies of teachers and of the Heads of Institutions/schools  by  direct  recruitment in  any  aided recognised  institution/school.   Sections 16-E and 16-F  of the Act were substituted to bring about a change in the mode of  appointment  of  teachers by the management  of  private educational aided institutions (for short, ‘the management’) and  to  provide  for appointment of  teaching  staff  after selection  by  a Committee comprising of representatives  of the  management and experts nominated by authorities of  the education department.  Later, the power of the management to appoint  teaching staff was restricted only for a period not exceeding   ‘six   months’.   Series    of   Orders   called ‘U.P.Secondary  Education (Removal of Difficulties)  Orders’ were  issued.  We concern ourselves with the Second Order of 1976 by which the words ‘not extending beyond June 30, 1976’ were  substituted  for ‘six months’ and the Fifth  Order  of 1976  issued  on November 27, 1976 which brought  about  two important  changes  :   (i)  it  regularised  all  temporary appointments  made  by the management on or before June  30, 1975;  and (ii) it extended the period, earlier fixed for ad hoc  appointments  under various orders, till  December  31, 1976  or  till regular appointments, whichever  is  earlier. Section 16-GG was inserted in the Act by U.P.  Act 5 of 1977 with  effect from April 21, 1977.  The said provision  deals with  the  regularisation of appointment of ad hoc  teachers made  between August 18, 1975 and September 30, 1976.  By  a subsequent Order, the period was again extended till May 20, 1977  or  till regular selection, whichever is earlier.   In 1982,   U.P.Secondary  Education   Services  Commission  and Selection  Boards  Act,  1982 (U.P.  Act No.5 of  1982)  was enacted,  which mandated the management to appoint  teaching staff  only on recommendation by the Commission.  The  State Government  was given the power to make rules under  Section 35  of U.P.Act No.5 of 1982.  On May 8, 1995, the Government

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made  the 1995 Rules.  Rule 12 of the said Rules  prescribes procedure  for  appointment  of  teaching  staff  by  direct recruitment.   Sections  9 and 10 of U.P.Act No.5  of  1982, which  are impugned, read as under :  "9.  Powers and duties of  Commission.   - The Commission shall have the  following powers and duties, namely -

   (a)  to  prepare guidelines on matters relating  to  the method  of  recruitment and promotion of such categories  of teachers as are specified in the Schedule;

(b)  to  (j)    ***                 ***                 ***

   10.  Procedure of selection of teachers specified in the Schedule -

   (1)  For the purposes of making appointment of a teacher specified  in the Schedule, the management shall notify  the vacancy  to  the Commission in such manner and through  such officer or authority as may be prescribed.

   (2)  The  procedure  of   selection  of  candidates  for appointment  to the posts of such teachers shall be such  as may be prescribed :

   Provided  that  the  Commission shall, with  a  view  to inviting  talented persons, give wide publicity in the State to the vacancies notified under sub-section (1)."

   A  perusal  of  Section 9 shows that it  enumerates  the powers   and   duties  of   the  Commission  which   include preparation  of guidelines on matters relating to the method of  recruitment  and  promotion  of  teachers.   It  is  the validity  of clause (a) of Section 9 that is impugned on the ground of delegation of essential legislative functions.  In our  view, the contention is wholly misconceived.  It is too late  in  the day to question the delegation of  legislative functions  to  the  Government or a  subordinate  authority. However,  what cannot be delegated is essential  legislative functions.   It  will  be  useful   to  reproduce  here  the observations  of  Mukherjea,J.   In re The Delhi  Laws  Act, 1912,  the  Ajmer-Merwara (Extension of Laws) Act, 1947  vs. The  Part C States (Laws) Act, 1950 [1951 SCR 747 at 982]  : "If  the  legislature hands over its  essential  legislative powers  to  an outside authority, that would, in my  opinion amount to a virtual abdication of its powers and such an act would  be in excess of the limits of permissible delegation. The   essential  legislative  function   consists   in   the determination  or choosing of the legislative policy and  of formally  enacting  that  policy  into  a  binding  rule  of conduct.   It  is open to the legislature to  formulate  the policy  as broadly and with as little or as much details  as it  thinks  proper  and  it may delegate  the  rest  of  the legislative  work  to a subordinate authority who will  work out the details within the framework of that policy.’’

   The  essence of the essential legislative function  lies in  the  legislature  formulating a policy in respect  of  a matter  within  its field of legislation and translating  it into  words  of  an  enactment to  clothe  it  with  binding authority.   The  legislative policy, as could  be  gathered from  the  aforementioned  provisions,   appears  to  us  to constitute a Commission which is a statutory body consisting of  experts  and  leave  the question as to  how  it  should proceed  with  the  method of recruitment and  promotion  of

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Teachers  to  the  posts of Principals/Headmasters  to  that Commission.   A plain reading of that clause shows that  the legislature  has  delegated  the  power  of  preparation  of guidelines  on matters relating to the method of recruitment to  the Commission which is in the sphere of effectuation of the legislative policy rather than in realm of laying down a legislative policy.  The composition of the Commission under Section  4  of  U.P.Act No.5 of 1982 is as  follows  :   "4. Composition  of the Commission.  - (1) The Commission  shall consist  of  a Chairman and not less than six and  not  more than  eight  other  members  to be appointed  by  the  State Government.

   (2)  Of  the  members - (a) One shall be  a  person  who occupies  or  has  occupied,  in the opinion  of  the  State Government, a position of eminence in Judicial Services;

   (b) Two shall be persons who occupy or have occupied, in the  opinion  of such Government, a position of eminence  in the State Education Services;  and

   (c) Others shall have teaching experiences as -

   (i)  Professor  of any University established by law  in Uttar Pradesh;  or

   (ii)   Principal  of  any   college  recognised  by   or affiliated  to any such University for a period of not  less than ten years;  or

   (iii)  Principal of any institution recognised under the Intermediate  Education  Act, 1921 for a period of not  less than fifteen years.

   (3)  Every  appointment  under this section  shall  take effect  from  the date on which it is notified by the  State Government."

   A  bare  reading of Section 4 makes it evident that  the Commission  was  composed of members of whom one member  was having  a position of eminence in judicial services and  the other  members  were  experts  in the  field  of  education. Inasmuch  as  the Commission was an expert body and  it  was entrusted   with   the  duty  of  selection   of   Teachers, Principals/Headmasters,  it would be the most competent body to  lay  down  guidelines on matters relating to  method  of recruitment  and  promotion  of  teachers to  the  posts  of Principals/  Headmasters.  Indeed laying down of  guidelines by  the Commission in such matters when it is so  authorised by  an  Act of legislature or by statutory Rules is  a  well accepted  principle  and  no exception can be taken  to  it. [See  :   Dr.  Krushna Chandra Sahu and Ors.  Vs.  State  of Orissa  and Ors.  [1995 (6) SCC 1].  A perusal of Section 10 shows  that  it  deals with the procedure for  selection  of teachers  specified in the Schedule to U.P.Act No.5 of 1982. The  schedule  specifies  the   following  as  teachers  for purposes  of Section 10 :  (1) Principal of an  Intermediate College;   (2)  Lecturer  of an Intermediate  College;   (3) Headmaster  of  a High School;  and (4)  Trained  Graduates, Grade Teachers of Higher Secondary School.  Further, Section 2(k) of that Act defines ‘teacher’ to include a principal or a  headmaster.   Sub-section (1) of Section 10  enjoins  the management to notify the vacancy for making appointment of a teacher  specified in the Schedule to the Commission in such manner  as may be prescribed.  Sub-section (2) of Section 10

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says  that  the procedure for selection of a  candidate  for appointment  to  the  post of a teacher shall be as  may  be prescribed.   The  Commission  is   mandated  to  give  wide publicity  in  the  State to the  vacancies  notified  under sub-section  (1) to invite talented persons.  The Government of  U.P.   has  prescribed  in Rule 12  of  the  1995  Rules procedure  for  recruitment of teachers.  Nothing  has  been pointed  out and we also find nothing which would render the provisions  of Section 10 as unconstitutional.  Rule 12  (3) of the 1995 Rules, which is the subject matter of challenge, is   extracted  hereunder  :    "12.   Procedure  of  direct recruitment - (3) The commission shall hold interview of the candidates  and, for each category of post prepare panel  of those  found most suitable for appointment in order of merit as disclosed by the marks obtained by them in the interview. The  panel, for the post of Principal or Headmaster shall be prepared  institution  wise after giving due regard  to  the preference  given by a candidate, if any, for appointment in a  particular  institution  whereas  for the  posts  in  the lecturers  and  trained graduates (L.T.) grade, it shall  be prepared  subjectwise and groupwise respectively.  If two or more candidates obtain equal marks in interview, the name of the  candidate who has higher quality points shall be placed higher  in  the  panel  and if the  marks  obtained  in  the interview  as  well  as the quality points of  two  or  more candidates are equal, the name of the candidate who is older in age shall be placed higher.  In the panel for the post of Principal  or Headmaster, the number of names shall be three times  of  the  number of the vacancy and for  the  post  of teachers  in  the  lecturers and  trained  graduates  (L.T.) grade,  it shall be larger (but not larger than twenty  five per cent) than the number of vacancies.

   Explanation.-  For  the purposes of this sub-  rule  the word groupwise means in accordance with the groups specified in the Explanation to sub-rule (2) of Rule 11."

   Rule  12 deals with the procedure for direct recruitment of  Teachers,  Principals/Headmasters  and  Lecturers.   The procedure for selection of the Principals and Headmasters is as  follows  :   Sub-rule  (1) requires  the  Commission  to advertise  the  vacancies,  inter  alia,  for  the  post  of Principal  of an Intermediate College or the Headmaster of a High  School  duly  specifying  the name and  place  of  the institution/school   and  inviting   application  from   the candidates  who are required to give their choice in respect of three institutions/schools in the order of preference for which  they desire to be considered.  Sub-rule (2),  insofar as  it  relates  to   selection  of  Principals/Headmasters, directs   that   the  Commission   should   scrutinise   the applications  and prepare the list having due regard to  the representation  of  the  candidates belonging  to  Scheduled Castes,  Scheduled  Tribes and other Backward Classes.   The Commission is required to call for interview five candidates for  each vacancy on the basis of the quality points secured by  them.   Sub-rule  (3), quoted above,  directs  that  the Commission  shall hold interviews of the candidates for each category  of  posts  and  prepare a  panel  of  those  found suitable  for appointment in order of merit as disclosed  by the  marks obtained by them in the interview.  The panel for the  posts  of  Principals/Headmasters has  to  be  prepared institutionwise  keeping in view the preference given by the candidates,   if  any,  or  in   respect  of  a   particular institution/school.   The panel should contain the names  of the  candidates three times of the number of vacancies.  The

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vice  in  sub-rule  (3),  it  is  argued,  is,  it  mandates selection   of  candidates  only  by  interview.   What   is complained  of is that there is no provision for  comparison of  educational  qualification,  administrative  experience, service  record  and character roll without which  selection solely  on the basis of interview will be arbitrary.  It may be  noted  that the scheme for selection of the  candidates, under  consideration, is in two stages.  The first stage  is evaluation  at  the  time  of  screening,  as  envisaged  in Appendix D of the 1995 Rules, which provides for awarding of quality  points under six items.  For academic qualification marks  are  awarded,  under  items  1 to  4,  based  on  the percentage  of  marks  secured  in  (1)  High  School;   (2) Intermediate;   (3) Graduate degree;  and (4)  Post-graduate degree in accordance with formulae noted therein.  Item No.5 deals  with  awarding of marks for training  depending  upon whether the candidate secured the first or the second or the third  division  in theory and practical.  And at item  No.6 provision  is  made  for awarding marks  for  administrative experience;   2 marks are given for each year of experience, subject  to a maximum of 15 marks.  Thus, it is noticed that at   the   stage  of   awarding  quality   points   academic qualification,  training  and administrative  experience  of candidates are taken into consideration.  The candidates are called  for  interview on the basis of the ‘quality  points’ secured  by  them.  Regarding non- consideration of  service record  and character roll by the Commission, no  allegation was  made in the writ petitions.  However, Mr.T.N.Singh, the learned  counsel  for  the   Commission,  on   instructions, submitted  that  service  records of  senior  teachers  were before  the  Commission  at the time of interview.   Now  we shall  advert to the cases cited at the Bar.  In Shri  Janki Prasad Parimoo and Ors.  Vs.  State of Jammu and Kashmir and Ors  [1973 (1) SCC 420], the challenge was against selection for the posts of Headmasters made by the Selection Committee on  the  basis of interview.  A Constitution Bench  of  this Court  while approving the method of selection by interview, held  that  when  appointment to higher posts were  made  it might  be  perfectly legitimate to test the candidate  at  a properly  conducted  interview.   It was observed  that  the efficiency  of  a  teacher  and   his  qualification  to  be appointed   as   a   Headmaster    depended   upon   several considerations  -  his character, his  teaching  experience, ability  to  manage  his  class,  his  popularity  with  the students  and the high percentage of successful students  he was  able  to produce;  and that all those matters  must  be necessarily  taken  into  consideration   before  making   a selection.  It is difficult to accept the omnibus contention that  selection on the basis of viva voce only is  arbitrary and  illegal  and  that since allocation of  15%  marks  for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal.  It will be useful  to bear in mind that there is no rule of thumb  with regard  to  allotment of percentage of marks for  interview. It   depends  on  several  factors   and  the  question   of permissible percentage of marks for an interview test has to be  decided  on  the  facts  of  each  case.   However,  the decisions  of  this Court with regard to  reasonableness  of percentage  of  marks  allotted for interview  in  cases  of admission  to  educational   institutions/schools  will  not afford  a  proper  guidance in determining  the  permissible percentage   of   marks   for    interview   in   cases   of selection/appointment  to  the  posts in  various  services. Even  in this class, there may be two categories:  (i)  when the  selection is by both a written test and viva voce;  and

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(ii)  by  viva  voce alone.  The courts  have  frowned  upon prescribing  higher  percentage of marks for interview  when selection  is  on  the basis of both oral  interview  and  a written  test.  But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior  positions the question of higher percentage of marks for  interview  does not arise.  Therefore, we think  it  an exercise  in  futility  to discuss these cases --  Minor  A. Peeriakaruppan  etc.   Vs.   State of Tamil  Nadu  and  Ors. [1971 (1) SCC 38] and Ajay Hasia and Ors.  Vs.  Khalid Mujib Sehravardi  and  Ors.  [1981 (1) SCC 722] -- relied upon  by Mr.Goswami,  which  deal  with   admission  to   educational institutions/schools  and also cases where prescribed method of  recruitment  was  written test followed by  interview  - Ashok  Kumar  Yadav  & Ors.  vs.  State of  Haryana  &  Ors. [1985  (4) SCC 417];  D.V.Bakshi & Ors.  vs.  Union of India & Ors.  [1993 (3) SCC 663;  Krishan Yadav & Anr.  Vs.  State of  Haryana & Ors.  [1994 (4) SCC 165].  However, it will be apt  to refer to the decision of a three-Judge Bench of this Court  in Lila Dhar Vs.  State of Rajasthan and Ors.   [1981 (4)  SCC 159].  There, the impugned selection for the  posts of  District Munsifs under Rajasthan Judicial Service  Rules was  made  by the Rajasthan Public Service Commission.   The ratio  of marks allocated for written test and interview was 75:25.   Speaking for the Court, Justice O.  Chinnappa Reddy pointed  out:   "In the case of admission to a college,  for instance,  where  the  candidate’s  personality  is  yet  to develop  and  it  is  too early  to  identify  the  personal qualities  for  which  greater  importance may  have  to  be attached  in later life, greater weight has per force to  be given  to  performance  in  the  written  examination.   The importance  to  be  attached to the interview-test  must  be minimal.   Therefore, the ratio of the decisions in Minor A. Peeriakaruppan  etc.   Vs.   State of Tamil  Nadu  and  Ors. [1971 (1) SCC 38] and Ajay Hasia and Ors.  Vs.  Khalid Mujib Sehravardi  and  Ors.  [1981 (1) SCC 722], in  this  regard, cannot  be applied in case of services to which  recruitment has   necessarily  to  be  made   from  persons  of   mature personality,  interview test may be the only way, subject to basic  and essential academic and professional  requirements being satisfied."

   That  case  has  been consistently followed  in  various judgments of this Court.  We refer to a few of them here.

   In  Dr.   Keshav  Ram   Pal  vs.   U.P.Higher  Education Services  Commission, Allahabad & Ors.  [1986 (1) SCC  671], referring  to the view taken by this Court in  Periakaruppan vs.  State of T.N.  (supra) and Ajay Hasia vs.  Khalid Mujib Sehravardi (supra) that the importance to be attached to the interview test must be minimal, this Court commented that in the case of services to which recruitment had necessarily to be  made from persons of mature personality, interview  test might  be  the  only  way, subject to  basic  and  essential academic  and professional requirements being satisfied  and that  subjecting such persons to a written examination might yield  unfruitful and negative results, apart from it  being an  act  of cruelty to those persons.  In Anzar  Ahmad  etc. Vs.   State of Bihar and Ors.  etc.  [1994 (1) SCC 150], for appointment  to  the  posts  of Unani  Medical  Officer  the Government  prescribed  that the Public  Service  Commission shall  select the candidates on the basis of interview.  The Commission  allocated  50% marks for academic  qualification and  50% for interview.  This Court, after referring to  the aforementioned  cases  and  relying upon Lila  Dhar’s  case,

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upheld  the  method of selection by interview  alone.   That decision  was followed in A.P.  State Financial  Corporation Vs.  C.M.  Ashok Raju and Ors.  [1994 (5) SCC 359].  In that case  also  selection of candidates by interview  without  a written  test  was  upheld  by this  Court.   The  posts  of Managers  in the A.P.Financial Corporation were to be filled by  interview  without  a  written  test.   The  Corporation approved  the  promotion  criteria by viva  voce  without  a written test and allocated marks under various heads;  among them  for interview 25% and for length of service 15%  marks were  prescribed.  A Division Bench of the High Court  while upholding  the  allocation  of marks  under  various  heads, reduced  the  percentage of marks for interview from 25%  to 15%  and increased percentage of marks for length of service from  15% to 25%.  On appeal, this Court held that the  High Court fell into patent error in reaching the conclusion that 25%  marks  for interview were, in the facts of  that  case, excessive.   It was observed that there was no dispute  that no  written test was prescribed for promotion to the post of Manager  and  above and the selection/promotion was only  by viva voce test, so no limit could be imposed for prescribing the  marks  for interview.  In Siya Ram Vs.  Union of  India and  Ors.   [1998 (2) SCC 566] one of the grounds of  attack was that the Rules regarding selection for the post of Chief Personnel Inspector in Railways, permitted only oral test in the  form of viva voce and no written examination was  held. It  was  contended that the result of a selection merely  on the  basis of viva voce could not be reasonably fair and was liable  to lead to arbitrariness.  There, out of 100  marks, 50   were   allotted  for   professional   ability   without prescribing any norms.  While rejecting the contention, this Court,  following  the Lila Dhar’s case, held that at  times for  certain  posts only interview was considered to be  the best method of selection.  For all these reasons, we find no illegality  in  Rule 12(3) of the 1995 Rules  providing  for selection  of suitable candidates based on their performance in   the  interviews  for  appointment   to  the  posts   of Principals/Headmasters.   The  next prong of attack  on  the interview  test  is  that in the guidelines  framed  by  the Commission  no separate marks are allocated for each of  the seven  items and the members of the Commission did not award separate  marks under each item therefore the selection  was arbitrary and liable to be set aside.  Mr.Shanti Bhushan, on the  other  hand,  supported the selection and  argued  that having  regard  to  the items specified  in  the  guidelines awarding  of  separate marks under each item would  lead  to most  undesirable consequences and even disastrous  results. He has submitted that in such cases overall evaluation alone is  the best method and that was adopted by the  Commission. In  the  guidelines framed by the Commission  the  following aspects  are to be kept in mind while evaluating a candidate :   "Madhyamik  Shiksha  Ayog-  The  candidates  called  for interview have to be adjudged by members of the Board for 75 Marks, keeping in view the following factors.

   1. Personality.

   2. Knowledge of the subject.

   3.   Knowledge  of  current ideas and  problems  of  the          educational work diagnostic attitude towards them.

   4.  General Knowledge.

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   5.  Administrative ability regarding school management.

   6.  Self expressive and impressive views.

   7.  Achievement in curricular activities of the regional         and State levels."

   It  is  true that maximum marks for each item  were  not allocated.   A perusal of the original lists of participants in  the  interviews for the posts of  Principals/Headmasters with  reference  to each institution/school, shows that  the members  of  the Commission who interviewed  the  candidates awarded  marks  in lump but separately after evaluating  the candidate  on  the  basis of aforementioned factors.   On  a careful  consideration  of  the  factors  contained  in  the abovequoted  guidelines,  we find considerable force in  the submission  of  Mr.Shanti  Bhushan that  overall  evaluation rather  than  awarding of marks for each item will  lead  to proper  and  correct  results.  Assuming that  each  of  the factors  in  the guidelines is allocated equal marks;  in  a given  case,  if  the personality of the candidate  and  his administrative  ability  regarding   school  management  are miserably  poor  but  his  knowledge of  current  ideas  and problems   of  educational  work,   general  knowledge   and achievement  in curricular activities etc., are good and  he secures  higher  marks than a candidate who is  having  good personality,  possess  imaginative   administrative  ability regarding  the  school  management and satisfies  the  other factors  certainly  the former candidate will not be  better than   the   latter  as  a   Principal/Headmaster   for   an institution/school.   Such  examples  can be  multiplied  by permutation  and combination.  In our view, items  mentioned in  the guidelines are various aspects which have to be kept in  mind  in evaluating a candidate for his suitability  and fitness for being appointed as the Principal/Headmaster of a institution/school.    We,  therefore,  do   not  find   any illegality  in  the procedure of overall evaluation  of  the candidate  without fixing marks for each of the items  noted above,  adopted by the Commission, and on this ground we are not inclined to hold that the selection is arbitrary.  Here, we  may  with advantage mention a decision of this Court  in Dr.Keshav  Ram  Pal  vs.    U.P.Higher  Education   Services Commission,  Allahabad  & Ors.  (supra).  In that case  also selection for the post of Principal was under consideration. The  appellant  who  claimed  to  possess  higher   academic qualifications and the longest experience, was not selected. He  challenged the selection on the ground that although the basis of selection was the candidate’s academic attainments, teaching   experience,    administrative    experience   and suitability  for  the  post  of Principal,  marks  were  not separately  allocated under each of those heads,  therefore, the  procedure  was  arbitrary  and  resulted  in  arbitrary selection.  This Court held that the interview board was not obliged  to  subdivide the marks and selection could not  be said to be arbitrary in the absence of such subdivision.  It may  be  noticed here that initially there was no  provision for   considering   two  senior-most    teachers   of   each institution/school    in    which       the    vacancy    of Principal/Headmaster  existed.   On a decision taken by  the Government  that  two  senior-most teachers of each  of  the institutions/schools,  where vacancy of Principal/Headmaster existed,  should also be interviewed, the Commission in  its Extra-Ordinary  Meeting  held  on April 24, 1996,  took  the following  decision :  "On the report of Hon’ble Member Shri

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S.L.Adarsh  the  commission considered that  the  Regulation 1983  are not in force at present.  Therefore, the procedure which  has  been  laid  down for interview  in  the  present Regulations  shall  be  complied   with.   Two  senior  most teachers  shall  participate in the selection process,  they would  be considered only for their respective  institutions where  they  have been serving.  No special  preference  has been  provided  in  the present Regulations  as  such  their interviews  would  be held in the same manner as  prescribed for the direct candidates from open market and they would be awarded marks as per the same procedure.  In case, if any of the  two senior teachers of each institution secures  higher marks  then he/she would be taken as selected and the  other senior  teacher would be left out at that very point of time and  the  other general candidates would be  considered  for other  institutions  in  the Region on the  basis  of  marks obtained in the interview."

   The  appellants are unsuccessful senior most teachers of various  institutions/schools who have challenged the method of  selection  for the in-service teachers to find a way  to the  post of Principal/Headmaster.  It is a common case that in  the interview, the in-service candidates were not  given any  special  preference  and in their  selection  the  same procedure, as was adopted in the case of general candidates, was  applied.  Between the two senior most teachers of  each institution/school whoever secured higher marks was selected for  that  institution/school  and  no  candidate  from  the general  pool was selected ignoring the claim of the  senior teachers  for  their institution/school which is  reasonable and  fair  from the point of view of senior teachers of  the institution/school  concerned.  The penultimate challenge is against  the panel of selected candidates prepared on  April 15,  1997.   It  was submitted that in view of  wide  spread allegations   of  favouritism  and   arbitrariness  in   the selection  and preparation of panel of selected  candidates, the  State Government issued a notification under Section  2 of the Uttar Pradesh State (Control Over) Public Corporation Act,  1975  (Act  41/75) on April 17,  1997,  directing  the Commission not to take any steps to make selection by direct recruitment  of  the  candidates   for  being  appointed  as teachers including Principals/Headmasters and not to prepare any  panel  of  candidates  but  in  violation  thereof  the Commission  selected  the candidates after the date  of  the notification  and ante dated the panel as if it was prepared on  April 15, 1997.  That panel was received by the Regional Deputy  Director  of Education on April 20, 1997  and  that, according  to Mr.Goswami, would show that the panel was  not prepared  before the date of the notification.  It was urged that  in  the interests of justice, this Court might  peruse the  original records of interview and preparation of  panel and  determine  its  validity.  Mr.Shanti Bhushan  met  that argument  by  challenging  the notification  itself  on  the ground  of  lack of power in the Government to issue such  a notification  to  interdict the functioning of  a  statutory body and submitted such an illegal notification did not bind the  Commission.   It  was  further  submitted  that  merely because the panel of April 15, 1997 was not sent through the Inspector  but  was  sent directly and was received  by  the Regional  Deputy Director on April 20, 1997 it could not  be concluded  that the panel was ante-dated.  Mr.Singh, learned counsel  appearing for the Commission, submitted that  after the date of the notification, no panel was prepared and that the preparation of panel was completed and it was despatched from Allahabad on April 15, 1997 before the date of the said

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notification and that no adverse inference could be drawn on the  ground  that it was received at Meerut by the  Regional Deputy  Director on April 20, 1997.  He placed before us the register  of despatch to show that the panel was  despatched on  April 15, 1997 itself.  The secretary of the  Commission produced  the  original  panel and the original  records  of interviews  conducted by the Commission.  The questions that arise  are  :  (i) whether the selection and preparation  of the panel was completed before April 15, 1997;  if not, (ii) whether  the  notification  of April 17, 1997  issued  under Section  2 of the Act 41/75 is valid in law;  and (iii) what is  the  effect  of the said notification  on  the  impugned panel?   At  the outset, we may observe that the  allegation that  to  get  over the notification of April 17,  1997  the panel  was ante dated to April 15, 1997 is fraught with very serious  inferences,  namely, the member of  the  Commission joined   together  to  conspire  to   get  over   the   said notification and having selected the candidates and prepared the panel after April 17, 1997 showed on record as if it was done on April 15, 1997 which are patently illegal acts.  The allegation is too wild and preposterous to be entertained in the  absence  of  any   incontrovertible  and   irrefragable material  to  support  it and to rebut  the  presumption  of regularity  of the official record and we outrightly  reject the same.  A perusal of the original panel of April 15, 1997 discloses  that  it  contains  the  names  of  the  selected candidates  for  the  posts   of  Principals/Headmasters  of various  schools  in different cities of Meerut region.   On examination  of  the  original  lists from  the  records  of interview,  it appears that the selection of the  candidates took  place  between  November 1996 and February  1997  long before  the  date  of the preparation of the  panel  and  it appears  to us that the panel was prepared before April  15, 1997  but it was communicated by the Commission at Allahabad to  various  educational authorities including the  Regional Deputy  Director, Meerut on April 15, 1997.  In the court we perused  the  calendar of 1997 and noted that between  April 16,  1997  and April 20, 1997 fell public holidays  for  Ram Navami,  Idu’l  Zuha and Sunday.  The laxity with  which  an office generally functions should neither be a matter of any surprise  for panel of selected candidates of April 15, 1997 to  reach the Regional Deputy Director of Education,  Meerut from Allahabad on April 20 nor could it furnish any basis to make  a  rabid allegation of ante dating.  In view  of  this finding, it is unnecessary to go into the other questions as to  the  validity of the notification and its effect on  the panel  of  candidates  dated  April   15,  1997.   Now,  one important  aspect  regarding the validity of panel of  April 15,  1997  remains  to  be   considered.   In  view  of  the allegations  with regard to the selection and empanelling of the candidates, this Court by Order dated September 29, 1999 directed  the  Vigilance Department to submit a copy of  the vigilance  inquiry  report.  At the time of hearing when  we asked  the learned counsel for the State about the report we were  informed that the Vigilance Department did not prepare the  report.   The  explanation  given to us  was  that  the records  were with this Court but this is incorrect  because at  the time of hearing, having found that the records  were not  available, we issued notice to the Secretary to  attend the  Court alongwith the records and that is how the records were  made  available  to this Court on April 5,  2000.   To ascertain  whether  the  impugned panel of  April  15,  1997 represents correctly the candidates who were selected by the Commission,  we perused the original records keeping in mind the  provisions  of  rule 12(3) of the 1995  Rules  and  the

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guidelines framed by the Commission with regard to selection of  the  senior teachers, extracted above, and verified  the lists  of  candidates who participated in the  interview  in respect  of  each institutions/schools.  In the lists  marks awarded  to the candidates are also noted.  We may  indicate here  that  for  purposes of conducting interviews  for  the posts    of    Principals/     Headmasters   in    different institutions/schools  in  the  Meerut region,  each  of  the institutions/schools  was assigned a code number.  There are in  all 258 code numbers.  Thus, each list of candidates who were    called    for   interview     for   the   post    of Principal/Headmaster  of an institution/High School contains a  code  number.   In each list under  the  caption  ‘senior teachers  of the institution/school’ the names of two senior teachers  of the institution/school are noted and under  the caption  ‘candidates’  the names of general  candidates  are mentioned.  Against their names marks awarded by each member of  the  Commission  and the average marks  secured  by  the candidates  are also written.  The word ‘chayanit’ is  noted in  Hindi against the name of the senior teacher who secured higher  marks than the other candidates in the list and  was selected.    Where  only  one   senior  teacher  from   that institution/school  participated  in  the interview  and  he secured  higher  marks,  he was accordingly  selected.   But where  a  general  candidate secured higher marks  than  the senior  teachers  of  the   institution/school  he  was  not selected  and  a tick mark was put against the name  of  the general  candidate,  which  does not indicate  that  he  was necessarily   selected  for   the  same  institution/school. Inasmuch  as we are not concerned with the selection of  the general  candidates,  we  did  not further  probe  into  the matter.  Though at the time of the argument it was submitted that  all the appellants except two, appeared for interviews in  Meerut  region, the particulars of the appellants as  to when  and from which institutions/schools they appeared  for interview, were not furnished so we were unable to verify as to   how  many  marks  they   secured  and   whether   their non-inclusion in the impugned panel is correct or not.  From the  record,  supplied to us, we could find about  200  such lists.   The names of the appellants, [except that of  Kiran Gupta  -  appellant  in  Civil   Appeal  Nos.   of  2000  (@ S.L.P.(C)Nos.19035-38/98)], do not figure therein.  The name of Kiran Gupta who is a senior teacher, is found in the list bearing  code  No.239,  category 02.  She secured  42  marks whereas  a general candidate secured 45 marks therefore  her name  was not included in the impugned panel and she  cannot have  any grievance for not being selected.  On the scrutiny of the records, to the extent we have done, we are satisfied that  the  allegations  of  malpractice  and  illegality  in respect  of  selection  and  empanelling  are  baseless  and untenable.   We  are  left with the last contention  of  the appellants  that their claim for regularisation in the posts in    which   they   have    been    working   as   ad   hoc Principals/Headmasters,  may  be   ordered.   Indeed,  their contention  is  that  they stood regularised  under  Section 33-A(1-A)  of  Act No.5 of 1982 Act as amended in 1991  read with  Section  33-C(1)(a)(ii) and (c).  The High Court  took the  view  that  their claims must have been  settled  under sub-section  (1-A) of Section 33-A of Act No.5 of 1982  long before  the  cut- off date (April 6,1991).  It was  observed that  if  any  dispute with regard to any  individual  claim under  the  said provision is pending before the  authority, such  claim  might be considered.  With regard to the  claim based  on Section 33-C(1)(a)(ii), on the basis that some  of them  were  appointed prior to August 7, 1993 and  therefore

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they  are entitled to be regularised, the High Court  opined that the provisions of Section 33-C came into force on April 20,  1998,  long  after the vacancies were notified  to  the Commission and in respect of which the selection had already been  completed  by  that date, therefore, in view  of  sub- section (6) of Section 33-C their claim did not survive.  It will  be  apt  to quote the said provisions here  :   "33-A. Regularisation of certain appointments.-

(1)         ***                ***                ***

   (1-A).   Every teacher appointed by promotion, on ad hoc basis  against  a  substantive vacancy  in  accordance  with paragraph  2  of  the   Uttar  Pradesh  Secondary  Education Services  Commission (Removal of Difficulties) Order,  1981, as   amended   from  time  to   time,  who   possesses   the qualifications  prescribed  under, or is exempted from  such qualifications  in  accordance with the provisions  of,  the Intermediate Education Act, 1921 shall, with effect from the date   of  commencement  of   the  Uttar  Pradesh  Secondary Education   Services   Commission   and   Selection   Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive   capacity  provided  such   teacher  has   been continuously  serving the institution from the date of  such ad hoc appointment to the date of such commencement.

33-C(1) Any teacher who,-

(a)(i)       ***                ***                ***

   (ii)  was  appointed by promotion on or after  July  31, 1988  but  not  later than August 6, 1993 on  ad  hoc  basis against  a substantive vacancy in the post of a Principal or Head Master in accordance with Section 18;

(b)          ***                ***                ***

   (c)has  been  continuously serving the institution  from the  date  of  such  appointment  up  to  the  date  of  the commencement  of  the  Uttar   Pradesh  Secondary  Education Services Commission (Amendment) Act, 1998;

(d)         ***                ***                ***

   shall   be   given  substantive   appointment   by   the management.

   (2), (3), (4), (5) *** ***

   (6)  Nothing  in  this  section shall  be  construed  to entitle  any  teacher to substantive appointment, if on  the date  of commencement of the Ordinance referred to in clause (c)  of sub-section (1) such vacancy had already been filled or  selection  for  such vacancy has already  been  made  in accordance with this Act."

   Insofar  as  the  claim based on  Section  33-A(1-A)  is concerned,  a  perusal of sub-section (1-A) of Section  33-A discloses that to attract the provisions of this sub-section the  teacher  which   includes  Principal/Headmaster  should fulfil  the  following conditions :  (i) he must  have  been appointed  on  ad hoc basis against a  substantive  vacancy; (ii)  his  appointment should have been made  in  accordance with  para  2  of  the  Uttar  Pradesh  Secondary  Education Services Commission (Removal of Difficulties) Order 1981, as

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amended  from  time  to  time;  (iii) he  must  possess  the qualification  prescribed under the provisions of the Act or he  should be exempted under the provisions of the said Act; and  (iv)  he should have been continuously serving  in  the institution/school  from the date of his ad hoc  appointment till the date of commencement of the Uttar Pradesh Secondary Education   Services   Commission   and   Selection   Boards (Amendment) Act, 1991.  In this batch of cases as individual particulars  of  the  appellants on these  aspects  are  not available,  the  High Court, in our view,  rightly  observed that  if any such cases are pending the same may be examined and appropriate order be passed in accordance with the terms of  the said provisions.  We can only add that if any of the appellants makes a claim under these provisions within three months  of  this judgment to the Director of Education,  the same  shall be considered within three months from the  date of  receipt  of  such  representation   and  the  result  be communicated  in writing to the candidate.  Insofar as claim based on Section 33-C(1)(a)(ii) is concerned, the candidates has  to  show that the following conditions are satisfied  : (i)  a teacher was appointed by promotion on ad hoc basis in the  post of Principal/Headmaster;  (ii) the appointment  by promotion  was made on or after July 31, 1988 but not  after August  6, 1993;  (iii) though the appointment was an ad hoc appointment, it was against a substantive vacancy;  (iv) the appointment  was  in accordance with Section 18  of  U.P.Act No.5  of 1982;  and (v) the appointee has been  continuously serving  in  the  institution/school from the date  of  such appointment  upto the date of commencement of Uttar  Pradesh Secondary  Education  Services Commission  (Amendment)  Act, 1998 (i.e.  April 20, 1998).  Even if an incumbent satisfies all  these  conditions,  his  right   will  be  defeated  by sub-section  (6)  of Section 33-C if on April 20, 1998  such vacancy  has  already  been  filled or  selection  for  such vacancy has been made in accordance with the U.P.Service and Selection  Board Act, 1982.  Here again, the particulars  of the  appellants who claim to fulfill these requirements  are not  available,  therefore,  we consider it  appropriate  to leave  it  to the Director of Education who shall look  into the  claims  made under this provision.   As  constitutional validity  of Section 33- C(6) has not been challenged in the High  Court, we do not propose to go into it here.  However, we  deem it proper to observe that the regularisation of the candidates under Section 33-C(1)(a)(ii) is made to depend on a  mere chance of a substantive vacancy either being  filled in or the selection for that vacancy being completed.  There may still be cases where the posts of Principals/Headmasters may  be lying vacant either because the selected  candidates did  not  join  or because the  incumbents  having  obtained posting  of their choice vacated the posts or for any  other reason  the  posts  might have fallen vacant.  In  all  such cases  the benefit of Section 33-C(1)(a)(ii) has to be given to  the ad hoc appointees.  We issue a similar direction  as issued above in cases of claims based under Section 33A(1-A) of  the said Act.  Subject to the above observations,  these appeals  are  dismissed.  The parties are directed  to  bear their own costs.