The Allahabad High Court has held that withdrawing vacancies from a running recruitment, because those posts could not lawfully be filled under the rules named in the advertisement, does not amount to altering the “rules of the game” midway.

It held that correcting the vacancy position is different in kind from changing eligibility or selection criteria. It held that only the latter is barred by the Constitution Bench ruling in Tej Prakash Pathak v. Rajasthan High Court.

In Tej Prakash Pathak, the Constitution Bench laid down that eligibility criteria for placement in a select list cannot be changed midway through a recruitment unless the extant rules or the advertisement permit it, and that any such change must still satisfy Article 14.

While dealing with a case where only the number of posts/ vacancies were altered after the advertisement was issued, the bench of Justice Saumitra Dayal Singh and Justice Arun Kumar held,

“The distinction between alteration of eligibility or selection criteria and correction of the legally available vacancy position is material. The former changes the conditions on which candidates compete; the latter determines whether a particular post could lawfully be filled under the statutory regime invoked in the advertisement.”

It held,

“The subsequent exclusion of such vacancies was, therefore, not a change in the eligibility criteria or method of selection. It was a correction of the vacancy position so as to bring the recruitment process in conformity with the statutory framework governing the institutions concerned.”

Teaching appointments in recognized aided Junior High Schools in Uttar Pradesh are governed by the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978. The Seventh Amendment of 2019 centralised recruitment under the Director of Basic Education and made selection conditional on clearing an examination, held on 17.10.2021.

On 03.11.2025, the Director of Education (Basic) advertised 1,262 posts of Assistant Teacher in 600 institutions, and counselling ran from 12.01.2026 to 12.02.2026.

Midway through counselling, Ram Kumar Bhardwaj filed a writ petition challenging the advertisement, his own appointment having been cancelled because his institution had been upgraded to a High School. A Single Judge cancelled the advertisement so far as it covered vacancies in institutions upgraded to High Schools or Intermediate Colleges. Notifications dated 09.03.2026 and 15.03.2026 gave effect to that direction, and the vacancies fell to 634 posts.

Candidates who had competed for the posts but were not parties to the writ petition filed these intra-court appeals. Finding their candidature directly affected, the Court granted them leave.

Counsel for the appellants contended that Smt. Manju Awasthi v. State of U.P. had held that Section 7-A of the Intermediate Education Act, 1921 does not contemplate first-time recognition. It was argued that recognition granted to these Junior High Schools under Section 7-A was therefore without jurisdiction, and they could not be treated as validly upgraded.

It was further argued that with Uttar Pradesh Secondary Education Services Selection Board Act, 1982 repealed and replaced by the U.P. Education Service Selection Commission Act, 2023, these self-financed institutions fall outside Section 2(1)(g)(ii) of the 2023 Act, leaving no provision to govern the vacancies. Cutting the posts when only the final select list remained, it was urged, changed the rules of the game.

For the writ petitioner-respondent, it was argued that Manju Awasthi had expressly protected recognitions already granted under Section 7-A, and that the Full Bench in State of U.P. v. District Judge, Varanasi had held that a Junior High School loses its identity on upgradation and is replaced by an institution with a new legal identity.

The Court accepted the respondent's reasoning that the recognitions already granted were saved and could not be treated as void, so the institutions stood upgraded; and the erstwhile Junior High School retains no separate legal identity, its lower section not being a distinct entity for recruitment purposes.

Section 13-A of the U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1978 extends that Act to upgraded institutions and to staff in respect of whose employment maintenance grant is paid. The Court held the provision transitional, protecting the salary of those already in place at upgradation and nothing further.

“Consequently, where an incumbent protected under Section 13-A retires, resigns, dies or otherwise ceases to hold the post, the vacancy so arising cannot automatically be treated as a vacancy at an aided Junior High School merely because the incumbent had originally been appointed in that institution before its upgradation. To do that would be to read the transitory provision as permanent.”

The Court held that the exclusion of these institutions from the field of the 2023 Act did not bring the 1978 Rules back into play, though it left open what mechanism would govern such a vacancy.

“…the repeal of the U.P. Secondary Education Services Selection Board Act, 1982 cannot alter the legal character of the institution or revive the separate identity of the erstwhile Junior High School.”

Further, the Court noted that nothing had changed in the qualifications, the examination, the merit criteria, reservation or the counselling procedure, only the number and identity of the vacancies the process could lawfully reach.

“The power to correct the vacancy position must be exercised bona fide, uniformly and for a legally sustainable reason. In the present case, the exclusion of the vacancies was based upon the legal status of the institutions concerned and upon the conclusion that those vacancies were outside the field of the Rules of 1978/Amended Rules of 2019. The action, therefore, cannot be characterized as arbitrary merely because it resulted in reduction in the number of vacancies available to the candidates.”

Relying on Shankarsan Dash v. Union of India and Anupal Singh v. State of U.P., the Court held that neither inclusion in a provisional select list nor participation in counselling creates an indefeasible right to appointment , though the power to correct a vacancy position must still be exercised bona fide, uniformly and for a legally sustainable reason.

Finding no infirmity in the order of the Single Judge and upholding the two notifications to that extent, the Court dismissed the appeals. It held that vacancies in institutions which remained recognized aided Junior High Schools as on 03.11.2025 continue to be governed by the applicable rules and the notified process.

Case Title: Pradeep Kumar Singh and 35 others v. State of Uttar Pradesh and 5 others

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