Allahabad High Court

1. Heard Shri R.K. Ojha, learned Senior Counsel assisted by Shri Uma Nath Pandey, for the appellants, Shri Rajiv Gupta, learned Additional Chief Standing Counsel for the State-respondents no.1 to 3 and Shri Sonu Kumar Upadhyaya, holding brief of Shri Shiv Ram Dubey on behalf of respondent no.4.

2. The present intra-court appeal is directed against the order and judgment of learned Single Judge dated 08.09.2025 in Writ-A No. 16604 of 2019 whereby the writ petition filed by 24 persons including 3 of the appellants herein, has been dismissed.

3. In the writ petition, the writ petitioners had challenged the order dated

06.07.2019 passed by District Inspector of Schools, Basti (respondent no.3) (hereinafter referred to as “D.I.O.S.”), rejecting the request of the Management for grant of financial approval to the payment of salary to the newly appointed 29 LT Grade Teachers from the State exchequer on two grounds, first, that the post had remained vacant for more than three months and, therefore, deemed to have been surrendered and could not have been filled without taking approval of the Director of Education and second, that the procedure prescribed vide Government Order dated

12.03.2018 for filling up the posts in minority institutions was not followed.

4. It is not disputed that vide Government Order dated 13.03.2018, amendments were notified in relation to the selection procedure 2 SPLA No. 1000 of 2025 prescribed under Chapter II of the regulations framed under the U.P. Intermediate Education Act and the procedure prescribed thereby was not followed and that the selections were purportedly made as per the unamended provisions.

5. The main aspect which was in issue before the learned Single Judge and which alone has been considered is whether the Management had followed the correct procedure in making the selections. In the said context, the contention of the appellants that although the advertisement for selection was issued on 24.04.2018 after amendment in the selection procedure but the selection process commenced when the Committee of Management on 07.01.2018 resolved to advertise the posts, therefore the procedure prescribed before amendment would apply, has been duly considered. In the same context, the further contention that vide letter dated 30.12.2017, the D.I.O.S. permitted the Committee of Management to fill up the post of Principal of the institution, in the first instance, and thereafter fill up vacant posts of Lecturer and Asst. Grade Teachers, has also been considered. The learned Single Judge has relied on the Constitution Bench judgment of the Supreme Court in the case of Tej Prakash Pathak and Ors. Vs. Rajasthan High Court and Ors., (2025) 2 SCC 1 and a judgment passed by Division Bench of this Court in Dal Chand and 143 others Vs. State of U.P. and 5 Others passed in Writ- A No. 5290 of 2023 and has held that the recruitment commences on the date advertisement is issued and thus the law prevailing on the said date alone would apply. Accordingly, the learned Single Judge has held that it was wholly immaterial that resolution was passed to initiate steps to fill up vacancies on a prior date or that permission was accorded by D.I.O.S. for filling up the posts before the advertisement was issued.

6. Shri R.K. Ojha, learned Senior Advocate appearing for the appellants submits that in the instant case there was dispute between the rival Committees of Management and in view of the said dispute, the vacancies could not be filled up. Ultimately, in Writ-A No. 11671 of 2015, this Court vide order dated 21.12.2017 permitted the newly constituted Committee of Management to fill up the post of Principal of the institution. In pursuance thereof, the newly elected Management initiated steps for filling up the vacancies. He submits that since there was order by 3 SPLA No. 1000 of 2025 the writ court permitting the newly elected Committee of Management to fill up the post of Principal and in pursuance thereof the Management took steps to fill up the vacant post, therefore, the learned Single Judge was not right in holding that the procedure as prevailing on the date of advertisement would apply. According to him, in view of the order of the writ court, the procedure as prevalent at the relevant time, would apply.

7. Learned Addl. Chief Standing Counsel has however submitted that the procedure as prescribed on the date advertisement was issued, would be applicable and the view taken by learned Single Judge is perfectly in accordance with law.

8. Learned counsel for the respondent no.4 has not disputed the facts as noted above and he has also not made any submission either.

9. The Hon’ble Supreme Court in Constitution Bench judgment in Tej Prakash Pathak (supra) has specifically considered the question as to when the recruitment process commences. The said question has been answered by holding that the recruitment process commences from the date of issuance of the advertisement and ends with filling up of the vacancies. The relevant paragraphs from the Constitution Bench judgment laying down the said principle of law are extracted herein in below: “"22. The process of recruitment begins with issuance of advertisement and ends with the filling up of notified vacancies. It consists of various steps inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of appointment. list of successful candidates

65. We, therefore, answer the reference in the following terms: 65.1. Recruitment process commences advertisement calling for applications and ends with filling up of vacancies;"” issuance of

10. A Division Bench of this Court in Dal Chand (supra) relying on Constitution Bench judgment in Tej Prakash Pathak (supra) has held that the selection procedure as prescribed on the date advertisement is issued, would apply.

11. Undoubtedly, this court vide order dated 21.12.2017 passed in Writ-A 4 SPLA No. 1000 of 2025 No. 11671 of 2015 has permitted the newly elected Committee of Management to proceed with the selection of the Principal in the institution and in pursuance of the said order, the Management vide its letter dated 25.12.2017 requested the D.I.O.S. to grant permission to it to issue advertisement for selection. The D.I.O.S., vide letter dated

30.12.2017, granted permission to the Management to first fill up the post of principal and thereafter proceed to fill up the post of Lecturer and Asst. Teachers. This is for the reason that the Principal, as per the procedure prescribed under law at the relevant time, was one of the members of the selection committee for the posts of Teachers. The Management succeeded in appointing Principal as per the procedure prescribed at the relevant time. However, before advertisement for filling up the post of Teachers could be issued, the amendments were made and whereunder an entirely different procedure has been prescribed for selection of Asst. Teachers and Lecturers and which concededly has not been followed in selecting the candidates.

12. The order of this Court dated 21.12.2017 in Writ-A No. 11671 of 2015 only permits the newly elected Committee of Management to proceed with the selection process for the post of Principal of the institution pending adjudication of the dispute between two rival claimants for the post of officiating Principal. It was passed only in the larger interest of the students. It would not confer any right in the management to follow a procedure which was not legally permissible on the date of advertisement nor would legalise the appointments in question. In view of the Constitution Bench judgment and the judgment of Coordinate Bench noted above, we are of the considered opinion that learned Single Judge has rightly held that the amended selection procedure as per G.O. dated 12.03.2018 should have been followed and the same having not been followed, the D.I.O.S. has rightly not accorded financial approval to the appointments of the appellants.

13. At this stage, Shri R.K. Ojha, learned Senior Counsel appearing for the appellants submits that since the appellants have worked and, therefore, the appellants are entitled to salary.

14. As the appointment has been made by the Management, therefore in 5 SPLA No. 1000 of 2025 case the appellants have actually worked during this period, the Management shall be liable to pay their salary and for which they can always make their claim against it. However, the liability of the State to pay make payment of salary from the State exchequer would not arise as the appointments were made de hors the procedure prescribed.

15. Accordingly, with the above clarification, the appeal stands dismissed. October 29, 2025 Sumit K. (Siddharth Nandan,J.) (Manoj Kumar Gupta,J.)

1. Heard Shri R.K. Ojha, learned Senior Counsel assisted by Shri Uma Nath Pandey, for the appellants, Shri Rajiv Gupta, learned Additional Chief Standing Counsel for the State-respondents no.1 to 3 and Shri Sonu Kumar Upadhyaya, holding brief of Shri Shiv Ram Dubey on behalf of respondent no.4.

2. The present intra-court appeal is directed against the order and judgment of learned Single Judge dated 08.09.2025 in Writ-A No. 16604 of 2019 whereby the writ petition filed by 24 persons including 3 of the appellants herein, has been dismissed.

3. In the writ petition, the writ petitioners had challenged the order dated

06.07.2019 passed by District Inspector of Schools, Basti (respondent no.3) (hereinafter referred to as “D.I.O.S.”), rejecting the request of the Management for grant of financial approval to the payment of salary to the newly appointed 29 LT Grade Teachers from the State exchequer on two grounds, first, that the post had remained vacant for more than three months and, therefore, deemed to have been surrendered and could not have been filled without taking approval of the Director of Education and second, that the procedure prescribed vide Government Order dated

12.03.2018 for filling up the posts in minority institutions was not followed.

4. It is not disputed that vide Government Order dated 13.03.2018, amendments were notified in relation to the selection procedure 2 SPLA No. 1000 of 2025 prescribed under Chapter II of the regulations framed under the U.P. Intermediate Education Act and the procedure prescribed thereby was not followed and that the selections were purportedly made as per the unamended provisions.

5. The main aspect which was in issue before the learned Single Judge and which alone has been considered is whether the Management had followed the correct procedure in making the selections. In the said context, the contention of the appellants that although the advertisement for selection was issued on 24.04.2018 after amendment in the selection procedure but the selection process commenced when the Committee of Management on 07.01.2018 resolved to advertise the posts, therefore the procedure prescribed before amendment would apply, has been duly considered. In the same context, the further contention that vide letter dated 30.12.2017, the D.I.O.S. permitted the Committee of Management to fill up the post of Principal of the institution, in the first instance, and thereafter fill up vacant posts of Lecturer and Asst. Grade Teachers, has also been considered. The learned Single Judge has relied on the Constitution Bench judgment of the Supreme Court in the case of Tej Prakash Pathak and Ors. Vs. Rajasthan High Court and Ors., (2025) 2 SCC 1 and a judgment passed by Division Bench of this Court in Dal Chand and 143 others Vs. State of U.P. and 5 Others passed in Writ- A No. 5290 of 2023 and has held that the recruitment commences on the date advertisement is issued and thus the law prevailing on the said date alone would apply. Accordingly, the learned Single Judge has held that it was wholly immaterial that resolution was passed to initiate steps to fill up vacancies on a prior date or that permission was accorded by D.I.O.S. for filling up the posts before the advertisement was issued.

6. Shri R.K. Ojha, learned Senior Advocate appearing for the appellants submits that in the instant case there was dispute between the rival Committees of Management and in view of the said dispute, the vacancies could not be filled up. Ultimately, in Writ-A No. 11671 of 2015, this Court vide order dated 21.12.2017 permitted the newly constituted Committee of Management to fill up the post of Principal of the institution. In pursuance thereof, the newly elected Management initiated steps for filling up the vacancies. He submits that since there was order by 3 SPLA No. 1000 of 2025 the writ court permitting the newly elected Committee of Management to fill up the post of Principal and in pursuance thereof the Management took steps to fill up the vacant post, therefore, the learned Single Judge was not right in holding that the procedure as prevailing on the date of advertisement would apply. According to him, in view of the order of the writ court, the procedure as prevalent at the relevant time, would apply.

7. Learned Addl. Chief Standing Counsel has however submitted that the procedure as prescribed on the date advertisement was issued, would be applicable and the view taken by learned Single Judge is perfectly in accordance with law.

8. Learned counsel for the respondent no.4 has not disputed the facts as noted above and he has also not made any submission either.

9. The Hon’ble Supreme Court in Constitution Bench judgment in Tej Prakash Pathak (supra) has specifically considered the question as to when the recruitment process commences. The said question has been answered by holding that the recruitment process commences from the date of issuance of the advertisement and ends with filling up of the vacancies. The relevant paragraphs from the Constitution Bench judgment laying down the said principle of law are extracted herein in below: “"22. The process of recruitment begins with issuance of advertisement and ends with the filling up of notified vacancies. It consists of various steps inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of appointment. list of successful candidates

65. We, therefore, answer the reference in the following terms: 65.1. Recruitment process commences advertisement calling for applications and ends with filling up of vacancies;"” issuance of

10. A Division Bench of this Court in Dal Chand (supra) relying on Constitution Bench judgment in Tej Prakash Pathak (supra) has held that the selection procedure as prescribed on the date advertisement is issued, would apply.

11. Undoubtedly, this court vide order dated 21.12.2017 passed in Writ-A 4 SPLA No. 1000 of 2025 No. 11671 of 2015 has permitted the newly elected Committee of Management to proceed with the selection of the Principal in the institution and in pursuance of the said order, the Management vide its letter dated 25.12.2017 requested the D.I.O.S. to grant permission to it to issue advertisement for selection. The D.I.O.S., vide letter dated

30.12.2017, granted permission to the Management to first fill up the post of principal and thereafter proceed to fill up the post of Lecturer and Asst. Teachers. This is for the reason that the Principal, as per the procedure prescribed under law at the relevant time, was one of the members of the selection committee for the posts of Teachers. The Management succeeded in appointing Principal as per the procedure prescribed at the relevant time. However, before advertisement for filling up the post of Teachers could be issued, the amendments were made and whereunder an entirely different procedure has been prescribed for selection of Asst. Teachers and Lecturers and which concededly has not been followed in selecting the candidates.

12. The order of this Court dated 21.12.2017 in Writ-A No. 11671 of 2015 only permits the newly elected Committee of Management to proceed with the selection process for the post of Principal of the institution pending adjudication of the dispute between two rival claimants for the post of officiating Principal. It was passed only in the larger interest of the students. It would not confer any right in the management to follow a procedure which was not legally permissible on the date of advertisement nor would legalise the appointments in question. In view of the Constitution Bench judgment and the judgment of Coordinate Bench noted above, we are of the considered opinion that learned Single Judge has rightly held that the amended selection procedure as per G.O. dated 12.03.2018 should have been followed and the same having not been followed, the D.I.O.S. has rightly not accorded financial approval to the appointments of the appellants.

13. At this stage, Shri R.K. Ojha, learned Senior Counsel appearing for the appellants submits that since the appellants have worked and, therefore, the appellants are entitled to salary.

14. As the appointment has been made by the Management, therefore in 5 SPLA No. 1000 of 2025 case the appellants have actually worked during this period, the Management shall be liable to pay their salary and for which they can always make their claim against it. However, the liability of the State to pay make payment of salary from the State exchequer would not arise as the appointments were made de hors the procedure prescribed.

15. Accordingly, with the above clarification, the appeal stands dismissed. October 29, 2025 Sumit K. (Siddharth Nandan,J.) (Manoj Kumar Gupta,J.)