Allahabad High Court
Jahaj Pal vs Dios And Another on 31 May, 2013
Author: Sushil Harkauli
Bench: Sushil Harkauli, Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 04.04.2013 Judgment delivered on 31.05.2013 Case :- SPECIAL APPEAL No. - 280 of 2013 Petitioner :- Jahaj Pal Respondent :- Dios And Another Petitioner Counsel :- Siddharth Khare,Ashok Khare Respondent Counsel :- C.S.C. Hon'ble Sushil Harkauli, J.
Hon'ble Manoj Misra, J.
1. By this intra-court appeal, the petitioner-appellant has challenged the order dated 01.02.2013 passed by the learned Single Judge in writ petition No.29320 of 1990 whereby the writ petition of the petitioner-appellant seeking a direction on the respondents not to interfere in the discharge of duty by the petitioner as an Assistant Teacher of the College and to continue to pay him salary, has been dismissed.
2. Facts, in brief, are that one Krishna Pal Singh, a permament C.T. Grade teacher in Janta Inter College, Lisarh, District Muzaffarnagar, a recognised -cum-aided Inter College, proceeded on long leave with effect from 22.12.1987, resulting in a short-term vacancy. After following the procedure prescribed, the petitioner-appellant was granted ad- hoc appointment, which was accorded approval by the D.I.O.S. vide order dated 12.7.1988. Initially the approval was upto 30.12.1988 but, thereafter, Krishna Pal Singh sought extension of his leave up to 30.06.1989, therefore, the managment again sought approval for continuance of the petitioner-appellant, which was accorded by the D.I.O.S., vide order dated 30.12.1988, for a period upto 30.04.1989. In the meantime, on 25.05.1989, Krishna Pal Singh submitted his resignation giving rise to a substantive vacancy. Based upon such resignation, the salary of the petitioner-appellant was stopped from May 1989. As no teacher was appointed on the substantive vacancy and the petitioner continued to work on the substantively vacant post, relying on the law, as it existed then, that an ad-hoc appointee against a short term vacancy was entitled to continue till appointment of a regularly selected candidate through Commission even if the short term vacancy is converted into a substantive vacancy, the petitioner-appellant filed writ petition with a prayer that till a candidate duly recommended by the Commission/Board joins the post or till the services of the petitioner are dispensed with, in accordance with law, he may be permitted to work as teacher and paid salary. On this petition, on 09.11.1990, an interim-order was passed thereby directing that the respondents will not interfere with the functioning of the petitioner as C.T. Grade teacher and pay the entire salary due to him and further continue to pay salary, as and when, it was due. Under this interim order, the petitioner continued to serve the institution and was paid salary.
3. In the year 2009 counter-affidavit, on behalf of D.I.O.S., was filed claiming therein that consequent to the conversion of short term vacancy into a substantive vacancy, in view of para 3(c) of the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981, the appointment of the petitioner automatically ceased and he did not have any legal right to continue in service.
4. The learned Single Judge dismissed the writ petition on the ground that on resignation of Krishna Pal Singh, the short-term vacancy stood converted into a substantive vacancy, therefore, in view of a Full Bench decision of this Court in the case of Smt. Pramila Mishra v. Deputy Director of Education, Jhansi and others reported in (1997) 2 UPLBEC, 1329, the appointment stood automatically terminated and that the benefit of regularisation under Section 33-B (1) (a) (i) of the U.P. Act No. 5 of 1982 was not available for two reasons: (i) that the petitioner did not continue in service as of right, inasmuch as, continuance under an interim order does not confer any right in view of the decision of the Apex Court in the case of Committee of Management Arya Nagar Inter College v. Sri Kumar Tiwari reported in 1997 (4) SCC 388: AIR 1997 1997 SC 3071; and (ii) the benefit under Section 33-B (1) (a) (i) of the U.P. Act No. 5 of 1982 is available only where the short-term vacancy gets converted into a substantive vacancy after the commencement of the U.P. Act No. 1 of 1993 i.e. after 07.08.1993, inasmuch as, the provisions of Section 33-B do not have retrospective effect and applies only prospectively.
5. Sri Ashok Khare, learned senior counsel, who appeared on behalf of petitioner-appellant, submitted that the Full Bench decision in the case of Smt. Pramila Mishra's case was subject matter of interpretation in several Division Bench decisions of this Court i.e. Raj Kumar Verma & Anr. v. District Inspector of Schools, Saharanpur reported in 1999 (2) UPLBEC 1420 ; District Inspector of Schools, Kanpur Nagar v. Diwakar Lal reported in 2000 (3) ESC 1670 ; Smt. Shashi Saxena and others v. Deputy Director of Education and others reported in 2000 (3) ESC 1990 ; Raghuvendra Babu Misra v. District Inspector of Schools, Etah and others reported in 2002 (3) E.S.C. 68. It has been submitted that the principle deducible from the above Division Bench decisions is that even though a teacher appointed on a short-term vacancy in accordance with the provisions of the Removal of Difficulties (Second) Order is not entitled to continue, as of right, but his appointment does not automatically stands terminated consequent to the conversion of short-term vacancy into a substantive vacancy and that such teacher is entitled to the benefit of Section 33-B (1) (a) (i) of the U.P. Act No. 5 of 1982.
6. In addition to above, Sri Ashok Khare submitted that the view of the learned Single Judge that the provisions of Section 33-B (1) (a) (i) of the U.P. Act No. 5 of 1982 would apply only to a case where the short-term vacancy gets converted into a substantive vacancy after insertion of the aforesaid provisions in the Act i.e. after 07.08.1993, is contrary to the plain grammatical meaning of the provisions of Section 33-B (1) (a) (i) of the U.P. Act No. 13 of 1972 and, as such, cannot be sustained. It was further contended that even though the petitioner-appellant might have continued under the interim order but still the benefit of having continued in service would be available to him if the court, ultimately, comes to the conclusion that the petitioner was entitled to continue in service as per the law. It has been submitted that where it is, ultimately, found that the petitioner is not entitled to continue in service, then his entitlement to the relief for regularisation cannot be sustained on having continued on the strength of an interim order, but where the petitioner is, otherwise, entitled to continue in service, but is not allowed by the respondents to do so and, therefore, under the interim order if he continues in service, then such continuation in service cannot be ignored while considering the claim for regularisation.
7. Sri Khare further submitted that decision of the Full Bench in Pramila Misra's case requires reconsideration as though the full bench judgment refers to Section 33-B of the 1982 Act, but fails to appreciate the effect thereof. It has been submitted that there is no consideration in the entire judgment of the full bench with regard to the statutory intendment flowing from Section 33-B of the 1982 Act. It has been submitted that section 33-B clearly stipulates that an ad-hoc appointment against a short term vacancy is entitled to be regularised upon satisfaction of other conditions prescribed therein upon conversion of the vacancy into a substantive vacancy, which clearly intends that an ad-hoc appointment against the short term vacancy would necessarily continue and not come to an end despite the conversion of the short term vacancy into a substantive vacancy.
8. Per contra, the learned Standing Counsel defended the reasoning adopted by the learned Single Judge and submitted that the decision of the Full Bench in the case of Smt. Pramila Mishra (supra) was subject matter of interpretation by another Division Bench of this Court in the case of Surendra Kumar Srivastava v. State of U.P. and others reported in 2007 (1) ESC 118, wherein the Division Bench took the view that an ad hoc appointee against the short-term vacancy would cease on cessation of short-term vacancy for any reason whatsoever including where vacancy is converted into a substantive one.
9. Having considered the rival submissions, we find that the issue that engaged the attention of the Full Bench in the case of Smt. Pramila Mishra (supra) was as to whether a teacher appointed on ad hoc basis in a short-term vacancy, like leave vacancy, is entitled as of right to continue on the said post even if the short-term vacancy has been converted to a permanent vacancy due to death, resignation or retirement of the permanent incumbent.
10. While deciding the said issue, in paragraph 24 of the judgment, the Full Bench observed as follows:-
" 24. Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy /suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noticed above, we hold that the decisions of this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good law."
10. The view that prevailed prior to the decision of the Full Bench in Smt. Pramila Mishra's case (supra) is stated, in paragraph 22 of the said judgment, as follows:-
" 22. In the case of Km. Meena Singh v. District Inspector of Schools, Jaunpur and another, (1984) 3 UPLBEC 1653, a single Judge of this Court (S.R. Singh, J.) held that a teacher duly appointed against short term vacancy under para 2 of the Second Removal of Difficulties Order, 1981, would be entitled to continue even after the vacancy is converted into a substantive one by reason of resignation, retirement, death or otherwise till such time as a candidate selected for regular appointment turns up to join the post held by ad hoc appointee unless his services are terminated earlier on grounds connected with misconduct, unsuitability or bona fide abolition of the post. The learned Single Judge relied on a previous single Judge decision of this Court in Writ Petition No. 1524 of 1989 Chandra Bhan Singh v. District Inspector of Schools and another, decided on 04.12.1991, in which, as stated in the judgment, Hon'ble M.L. Bhat, J. had held that the tenure of an ad hoc appointee against short term vacancy would not come to an end merely because the vacancy has become substantive one. That view had been taken relying on certain Division Bench decisions referred to in the judgment dated 04.12.1991. While placing reliance on this judgment, S.R. Singh, J. observed in paragraph 15 of his judgment that it is true that there is no discussion in the judgment about the effect of Clause (c) of para 3 of the Second Removal of Difficulties Order, 1981, but it appears from the said decisions that so far as the Court is concerned it has consistently taken the view that an ad hoc appointee against short term vacancy should be allowed to continue even if the vacancy is converted into substantive one until he is replaced by a duly selected candidate or his service are terminated on the grounds connected with misconduct or abolition of the post."
11. In the aforesaid decision of Smt. Pramila Mishra's case although the provisions of Section 33-B of the U.P. Act No. 5 of 1982 were noticed but its effect was not discussed as to how it would interact with Clause (c) of paragraph 3 of the Second Removal of Difficulties Order.
12. In paragraph Nos. 8, 9 and 10, a Division Bench of this Court, in the case of Raj Kumar Verma (supra), observed as follows:-
"8. The question for consideration before the Full Bench in the case of Pramila Misra (supra) was whether a teacher appointed on ad hoc basis in a short-term vacancy, such as a vacancy caused due to leave, was entitled "as of right" to continue on the said post even after the short-term vacancy had been converted into a permanent vacancy due to death, resignation, retirement or termination of the permanent incumbent. The Full Bench noticed that the answer to the question would depend on the interpretation of Section 33B of the U. P. Secondary Education Services and Selection Boards Act, 1982 (U. P. Act No. 5 of 1982) and its 'interaction" with the provisions of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order. 1981. The Full Bench held as under :
"In the case of ad hoc appointment in a short-term vacancy paragraph 3 of the Second Order specifically lays down that the appointment will come to an end if the short-term vacancy otherwise ceases to exist. It follows. therefore, that when a vacancy caused due to grant of leave to or suspension of the permanent incumbent becomes a substantive vacancy on account of his death. resignation or termination or removal from service, the short term vacancy ceases to exist and a substantive vacancy is created in its place. On a perusal of the relevant provisions of the Acts, Rules and Removal of Difficulties Orders and giving our anxious consideration to the matter, we do not find any provision which directly or even indirectly vests a right in a person appointed as an ad hoc teacher in a short term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place..........What we want to stress and which is clear to us is that he cannot claim as a matter of right that he is entitled to continue in the post till the candidate selected by the Commission/Board joins even if the short term vacancy has ceased and a substantive vacancy in the post of teacher has been created in its place."
9. Paragraph 3 of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order. 1981 as amended by para 3 of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Third) Order. 1982 provides that every appointment of an ad hoc teacher under paragraph 2 shall cease to have effect (i) when the teacher, who was on leave or under suspension joins the post or (ii) when the short-term vacancy otherwise ceases to exist. The Full Bench in support of its conclusion aforestated has placed reliance on the provisions contained in para 3 of the Second Removal of Difficulties Order 1981 referred to above. The Full Bench, in support of its conclusion referred to above, also noticed the difference in the manner of appointments under the provisions in the following words :
"A clear distinction has been maintained between substantive vacancy and short-term vacancy of the post of a teacher. The authority to make the appointment, the procedure to be followed in making the appointment and the consideration to be made in making the appointments in the two cases are distinct and different from each other.'
10. The question herein is not whether a teacher appointed in a short-term vacancy is entitled to continue as of right even after the vacancy is converted into a substantive vacancy. The question involved in the instant case is whether the appellants are entitled to be considered for being given substantive appointment. The right to be so considered for being given substantive appointment under Section 33B accrues only upon conversion of the short-term vacancy into substantive vacancy as provided in sub-section (1) of Section 33B. A teacher appointed in short-term vacancy on or before the dates specified in sub-clause (a) (i) of subsection (1) of Section 33B if not found 'suitable' and 'eligible' to get substantive appointment would cease to hold the post on such date as the State Government may by order specify. That is how the provisions contained in Section 33B of U. P. Act No. 5 of 1982 "interact" with those of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 in respect of teachers appointed prior to the date specified in the section. The question as to how do the two provisions "interact" has not been specifically answered by the Full Bench in Pramila Mishra's case (supra). In our opinion, the right of a teacher appointed in a short-term vacancy on or before the date specified in Section 33-B (1) accrues only upon the short-term vacancy being converted into a substantive vacancy and a teacher, appointed in short-term vacancy on or before the specified dates, who is not found 'suitable' and 'eligible' for substantive appointment shall cease to hold the appointment on such date as the State Government may by order specify and not on the date the short-term vacancy came to be converted into substantive vacancy. The question, in our considered opinion, needs to be examined by the duly constituted Selection Committee comprehended by sub-section (3) of Section 33B as the appellants were concededly appointed in Certificate of Teaching Grade before the specified date namely, May 13, 1989. Whether they fulfil other conditions of being given substantive appointment is a question which is to be decided by the Selection Committee. In our opinion, therefore, the Judgment of the learned single Judge needs to be modified accordingly for nothing in Pramila Mishra's case, inhibits substantive appointment being given to a teacher appointed against a short-term vacancy prior to the dates specified in Section 33B of U. P. Act No. 5 of 1982 if the conditions stipulated therein are satisfied and such teacher is found by the Selection Committee 'suitable' and 'eligible' for being given substantive appointment. As a matter of fact, the question as to the "interaction" of Section 33B of U. P. Act No. 5 of 1982 with the provisions contained in the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order. 1981. though posed by Full Bench in Pramila Mishra, has not been answered, perhaps due to inadvertence, if we may say so with utmost respect and humility. The contention of Sri Sabhajeet Yadav. standing counsel is. therefore, unacceptable to us."
13. Following the decision in Raj Kumar Verma's case in the case of District Inspector of Schools, Kanpur Nagar v. Diwakar Lal (supra), a Division Bench of this Court, in paragraph 15 of its judgment, observed as follows:-
"15. In view the judgment, reported in 1992 (2) UPLBEC 1420, we are of the opinion that the incumbents working on ad hoc basis against short term vacancies should not be automatically thrown out of service-- in view of the decision in the case of Pramila Misra (supra) when 'short term' vacancy became 'substantive vacancy'. In such a situation an ad hoc appointee should normally be allowed to continue (if there is no complaint about his working), till a regular ad hoc appointment is made against substantive vacancy as contemplated under Removal of Difficulties Orders."
14. Further in the case of Smt. Shashi Saxena (supra), a Division Bench of this Court, in paragraph Nos. 19, 20 and 21, observed as follows:-
"19. Division Bench decision of this Court in the case of Raj Kumar Verma v. District Inspector of Schools, Saharanpur and others 1999 (3) ESC 1950 Pr 10 (referring to the Full Bench case of Pramila Mishra v. Deputy Director of Education, Jhansi Division, Jhansi and others. (1997) 2 UPLBEC 1329), observed that the question "whether an ad hoc appointee working against short term vacancy shall cease automatically on such short term vacancy being converted into substantive vacancy" was not considered in the said Full Bench. Above referred Para 10 of the said Division Bench Judgment reads :
"10. The question herein is not whether a teacher appointed in a short term vacancy is entitled to continue as of right even after the vacancy is converted into a substantive vacancy. The question involved in the instant case is whether the appellants are entitled to be considered for being given substantive appointment. The right to be so considered for being substantive appointment under Section 33B accrues only upon conversion of the short term vacancy into substantive vacancy as provided in sub-section (1) of Section 33B. A teacher appointed in short term vacancy on or before the dates specified in sub-clause (a) (i) of sub-section (1) of Section 33B if not found 'suitable' and 'eligible' to get substantive appointment would cease to hold the post on such date as the State Government may by order specify. That is how the provisions contained in Section 33B of U. P. Act No. 5 of 1982 "interact" with those of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981, in respect of teachers appointed prior to the date specified in the section. The question as to how do the two provisions "Interact" has not been specifically answered by the Full Bench in Pramila Mishra's case (supra). In our opinion the right of a teacher appointed in a short term vacancy on or before the date specified in Section 33B (1) accrues only upon the short term vacancy being converted into a substantive vacancy and a teacher, appointed in short term vacancy on or before the specified dates, who is not found 'suitable' and 'eligible' or substantive appointment shall cease to hold the appointment on such date as the State Government may by order specify and not on the date the short term vacancy came to be converted into substantive vacancy. The question in our considered opinion, needs to be examined by the duly constituted Selection Committee comprehended by sub-section (3) of Section 33B as the appellants were concededly appointed in Certificate of Teaching Grade before the specified date namely, May 13. 1989. Whether they fulfil other conditions of being given substantive appointment is a question which is to be decided by the Selection Committee. In our opinion, therefore, the Judgment of the learned single Judge needs to be modified accordingly for nothing in Pramila Mishra's case inhibits substantive appointment being given to a teacher appointed against a short term vacancy prior to the dates specified in Section 33B of U. P. Act No. 5 of 1982, if the conditions stipulated therein are satisfied and such teacher is found by the Selection Committee 'suitable' and 'eligible' for being given substantive appointment. As a matter of fact the question as to the "interaction" of Section 33B of U. P. Act No. 5 of 1982, with the provisions contained in the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order. 1981, though posed by Full Bench in Pramila Mishra has not been answered, perhaps due to inadvertence, if we may say so, with utmost respect and humility. The contention of Sri Sabhajeet Yadav, standing counsel is, therefore, unacceptable to us."
20. The Deputy Director of Education, U. P., in the letter dated 17th August. 1996 (Annexure-2 to the supplementary affidavit along with Miscellaneous Application No. 13364 of 2000) had taken the same view as has been upheld by the Division Bench of this Court in the case of Raj Kumar Verma (supra). The Regional Joint Director of Education, Agra, after hearing concerned parties including Smt. Kusum Singh, vide order dated 10th February, 1999, found that said Smt. Kusum Singh was working on ad hoc basis by direct appointment against short-term vacancy on the post of Assistant Teacher (C.T. grade); a vacancy caused by ad hoc short term promotion of Smt. Shashi Kant Sharma as Assistant Teacher from C.T grade to the post of Assistant Teacher L.T. grade and that Smt Kusum Singh has been rightly regularised as Assistant Teacher in C.T. grade under Section 33A with effect from 7th August, 1993. (Annexure-SA 1 to the supplementary affidavit annexed with Miscellaneous Application No. 13364 of 2000).
21. Hence, it cannot be said that the services of Smt. Shashi Saxena came to an end automatically on the post of Assistant Teacher in L.T. grade being converted into substantive vacancy on the retirement of Smt. Rama Dixit. There being no adverse circumstance or material against the working of Smt. Shashi Saxena as such, we find no Justification in depriving said Smt. Shashi Saxena the relief claimed in Writ Petition No. 20349 of 1996. Writ Petition No. 20349 of 1996 is allowed."
15. The above view also found favour in another Division Bench decision of this Court in the case of Raghuvendra Babu Misra (supra) where, in paragraph 12, it was observed as follows:-
"12. We are in respectful agreement with the decision given in the case of Raj Kumar Verma and Smt. Shashi Saxena (supra) and hold that there is nothing in Smt. Pramiia Mishra's case, which prohibits giving of a substantive appointment by the Management if the person has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under Sub-section (2) of Section 33B of the Act and is found to fulfil all other requirements of Sub-section (1) of Section 33B of the Act. In the case of Committee of Management, Arya Nagar Inter College, Kanpar (supra) relied upon by the standing counsel, the Hon'ble Supreme Court was considering the question as to whether a person is entitled to the benefit of Section 33B (1) (a) (b) (i) of the Act, where the services came to be terminated on June 30, 1988. The Hon'ble Supreme Court had found that the services of the teacher concerned was terminated on May 30, 1988 w.e.f. 30.6.1988. The said teacher continued to remain in service on account of an interim order passed by this Court in the writ petition filed by the said teacher. On these facts, the Hon'ble Supreme Court found that admittedly, the services of the teacher came to be terminated w.e.f. 30.6.1988, though, he had obtained a stay order and continued to be in service, which was not by virtue of his own right under the order of an appointment but he continued in the office with the permission of the management. In this view of the matter the provisions of Section 33B (1) (a) (i) of the Act had no application."
16. The aforesaid Division Bench decisions of this Court do suggest that although upon conversion of a short-term vacancy into a substantive vacancy, the appointee cannot claim, as of right, to continue on the post but his appointment does not automatically stand terminated. Meaning thereby it would be open for the Management to initiate process for ad hoc appointment under the First Removal of Difficulties Order or to notify the vacancy and have a regularly selected candidate recommended by the Board/Commission appointed on the post. As to what would happen to an appointee pending ad-hoc appointment under First Removal of Difficulties Order or appointment on recommendation by the Commission has not been specifically dealt with by the Full Bench and, therefore, the Division Bench decisions, noticed above, have tried to bridge that gap.
17. At this stage, it would be useful to reproduce the provisions of Section 33-B of U.P. Act No. 5 of 1982, as inserted by U.P. Act No. 1 of 1993 with effect from 07.08.1993, which reads as follows:-
" 33-B. Regularisation of certain other appointments.- (1) Any teacher, other than the Principal or Headmaster, who-
(a) (i) was appointed by promotion or by direct recruitment in the Lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short term vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy; or
(ii) was appointed by direct recruitment on or after July 14, 1981 but not later than June 12, 1985 on ad hoc basis against substantive vacancy in the Certificate of Teaching grade through advertisement and such appointment was approved by the Inspector; or
(iii) was appointed by promotion or by direct recruitment on or after July 31, 1988 but later than May 14, 1991 on ad hoc basis against a substantive vacancy in accordance with Section 18 (as it stood before its substitution by the Uttar Pradesh Secondary Education Service Commission and Selection Boards (Amendment) Act, 1992;
(b) possesses the qualification prescribed under or is exempted from such qualification in accordance with the provisions of the Intermediate Education Act, 1921;
(c) has been continuously serving the Institution from the date of such appointment upto the date of the commencement of the Act referred to in sub-clause (iii) of clause (a);
(d) is not related to any member of the management or the Principal or Head Master of the Institution concerned in the manner specified in the explanation to sub-section (3) of Section 33-A;
(e) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2) shall be given substantive appointment by the Management.
(2) (a) For each region, there shall be a Selection Committee comprising-
(i)Regional Deputy Director of Education of that region, who shall be the Chairman,
(ii)One officer holding a Group "A" post (specified as such by the State Government from time to time) in any department other than Education Department, to be nominated by the state Government,
(iii)Regional Inspectress of Girls Schools of that region:
Provided that the Inspector of the district shall be co-opted as a member while considering the case for regularisation of that district.
(b) The Selection Committee constituted under clause (a) shall consider the case of every such teacher and on being satisfied about his eligibility and suitability in view of the provision of sub-section (1) shall, subject to the provisions of sub-section (3) recommend his name to the management for appointment under sub-section (1) in a substantive vacancy.
(3) (a) The names of the teachers shall be recommended for substantive appointment in order of seniority as seniority from the date of their appointment.
(b) If two or more such teachers are appointed on the same date, the teacher who is older in age shall be recommended first.
(4) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.
(5) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.
(6) Nothing in the Section shall be construed to entitle any teacher to substantive appointment if on the date of commencement of the Act referred to in sub-section (iii) of clause (a) of sub-section (1), such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act. "
18. A perusal of the aforesaid provisions would reveal that Section 33-B (1) (a) (i) comes to rescue of a teacher appointed by promotion or by direct recruitment in the C.T. Grade on or before May 13, 1989 against a short term vacancy in accordance with paragraph 2 of the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order when such vacancy is subsequently converted into a substantive vacancy and such teacher possesses the qualification prescribed under or is exempted from such qualification in accordance with the provisions of the Intermediate Education Act and has been continuously serving the institution from the date of such appointment up to the date of commencement of the Act and is not related to any member of the Management or the Principal or Headmaster of the institution and has been found suitable for appointment in a substantive capacity by a Selection Committee. The words "was subsequently converted into a substantive vacancy", as occurring in sub clause (i) of clause (a) of sub section (1) of Section 33-B, when read with the words "has been continuously serving the Institution from the date of such appointment upto the date of the commencement of the Act", as occurring in clause (c) of sub section (1) of Section 33-B, in its plain grammatical connotation would indicate that the legislative intent was to provide benefit to an ad-hoc appointee, appointed on a short term vacancy, before the specified date, even where such short-term vacancy is converted into a substantive vacancy before the commencement of the Act. Thus, the legislature did not intend that there would be an automatic termination of service of such ad-hoc teacher upon mere conversion of short-term vacancy into a substantive vacancy. Had the intention of the legislature, while inserting Section 33-B in the Statute book, been to make it applicable only to a case where the short term vacancy gets converted into a substantive vacancy after the insertion of the said provision in the Act, the words "was subsequently converted" and the words "has been continuously serving the Institution from the date of such appointment upto the date of the commencement of the Act", might not have been used. Therefore, we are, prima facie, of the view that Section 33-B (1) (a) (i) of the U.P. Act No. 5 of 1982 would also be applicable to a case where the short-term vacancy was converted into a substantive vacancy even before the commencement of U.P. Act No. 1 of 1993. It is for this reason that the view expressed by the Full Bench in Pramila Mishra's case was explained by various division bench decisions, which have already been noticed herein above.
19. There is another aspect to the matter. The purpose of Removal of Difficulties Order is to ensure uninterrupted imparting of education to the students, which may, otherwise, be interrupted consequent to the delay in appointment of teachers either on regular or on ad-hoc basis as envisaged by the First Removal of Difficulties Order. It is for this purpose, by the Third Removal of Difficulties Order, clause (b) in Para 3 of the Second Removal of Difficulties Order was deleted. Considering this aspect, in Meena Singh's Case (although overruled by the Full Bench in Pramila Mishra's case), a single judge of this Court, observed: "If the expression 'the short term vacancy otherwise ceases to exist' occurring in clause (c) is interpreted in the light of the object sought to be achieved by the Second Removal of Difficulties Order, 1981 then the expression has to be construed as to mean cessation of vacancy itself, say by reason of abolition of post, as distinguished from cessation of short term vacancy as such by reason of its conversion into substantive vacancy. The thrust of para 3 (c) of the Second Removal of Difficulties Order, 1981 is on the cessation of vacancy as such and not on its conversion into substantive vacancy."
20. The rule of purposive interpretation has been followed and enunciated by the apex court in several decisions. In the case of MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177, in paragraph 29, at page 194 of the report, a three judge bench of the apex court, propounding the rule of purposive interpretation of a statute observed, as follows:
"Having said that, we must add that one of the salutary principles of interpretation of statutes is to adopt an interpretation which promotes and advances the object sought to be achieved by the legislation, in preference to an interpretation which defeats such object. This Court has in a long line of decisions recognised purposive interpretation as a sound principle for the courts to adopt while interpreting statutory provisions. We may only refer to the decision of this Court in New India Sugar Mills Ltd. v. CST: AIR 1963 SC 1207, wherein this Court observed: (AIR p. 1213, para 8) "8. ... It is a recognised rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning the court would be justified in assuming that the legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid."
21. In the case of Grid Corpn. of Orissa Ltd. v. Eastern Metals & Ferro Alloys, (2011) 11 SCC 334, in paragraph 25, at page 342, the apex court observed as follows:
"The golden rule of interpretation is that the words of a statute have to be read and understood in their natural, ordinary and popular sense. Where however the words used are capable of bearing two or more constructions, it is necessary to adopt purposive construction, to identify the construction to be preferred, by posing the following questions: (i) What is the purpose for which the provision is made? (ii) What was the position before making the provision? (iii) Whether any of the constructions proposed would lead to an absurd result or would render any part of the provision redundant? (iv) Which of the interpretations will advance the object of the provision? The answers to these questions will enable the court to identify the purposive interpretation to be preferred while excluding others. Such an exercise involving ascertainment of the object of the provision and choosing the interpretation that will advance the object of the provision can be undertaken, only where the language of the provision is capable of more than one construction. (See Bengal Immunity Co. Ltd. v. State of Bihar: AIR 1955 SC 661 and Kanai Lal Sur v. Paramnidhi Sadhukhan: AIR 1957 SC 907 and generally Justice G.P. Singh's Principles of Statutory Interpretation, 12th Edn., published by Lexis Nexis, pp. 124 to 131, dealing with the rule in Heydon case :(1584) 3 Co Rep 7a:76 ER 637"
22.In the case of State of Gujarat v. R.A. Mehta,(2013) 3 SCC 1, in paragraph 98 at page 48, the apex court observed as follows:
"The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction which carries forward the objectives of the statute, protects interest of the parties and keeps the remedy alive, should be preferred looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. "The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of the statute must be so construed as to make it effective and operative." The court must take a pragmatic view and must keep in mind the purpose for which the statute was enacted as the purpose of law itself provides good guidance to courts as they interpret the true meaning of the Act and thus legislative futility must be ruled out. A statute must be construed in such a manner so as to ensure that the Act itself does not become a dead letter and the obvious intention of the legislature does not stand defeated unless it leads to a case of absolute intractability in use. The court must adopt a construction which suppresses the mischief and advances the remedy and "to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico". The court must give effect to the purpose and object of the Act for the reason that legislature is presumed to have enacted a reasonable statute."
23. The apex court in the case of Union of India & Others V. Filip Tiago De Gama of Vedem Vasco De Gama (1990) 1 SCC 277, observed, in paragraph 16, as follows:
"The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. 'Words are certainly not crystals, transparent and unchanged" as Mr Justice Holmes has wisely and properly warned (Towne v. Eisner: 245 US 418, 425 (1918). Learned Hand, J., was equally emphatic when he said:'Statutes should be construed, not as theorems of Elucid, but with some imagination of the purposes which lie behind them" (Lenigh Valley Coal Co. v. Yensavage:218 FR 547, 553)."
24. Seen in the light of the law noticed above, while interpreting clause (c) of paragraph 3 of the Second Removal of Difficulties Order, the Court ought to have considered what the legislature intended by introducing Section 33-B in the statute book. Moreso, when there is a presumption that the Parliament or the recipient of delegated power has no intention to encroach upon what are fundamental rights or principles of law (vide Craies on Legislation, Ninth Edition, Chapter 19, page 647, second paragraph). It may be noted that on the date when the provisions of section 33-B were inserted in statute book, Pramila Mishra's decision was not in existence and the judicial interpretation accorded to the said provision, at that point in time, was as accorded in Meena Singh's case (supra). Thus, there was all the more reason for the Full Bench to have considered the legislative intent in inserting Section 33-B in the U.P. Act No.5 of 1982 while interpreting clause (c) of paragraph 3 of the Second Removal of Difficulties Order. It is, therefore, for all these reasons, that several division benches have tried to explain and dilute the import of the Full Bench decision in the case of Pramila Mishra's case.
25. The view taken in Surendra Kumar Srivastava's case (supra), by placing reliance on Full Bench decision in Pramila Mishra's case (supra), that an ad hoc appointee against the short-term vacancy would cease on cessation of short-term vacancy for any reason whatsoever including where vacancy is converted into a substantive one, in our considered view is in conflict with the earlier Division Bench decisions of this Court in the cases of Raj Kumar Verma & Anr. v. District Inspector of Schools, Saharanpur reported in 1999 (2) UPLBEC 1420 ; District Inspector of Schools, Kanpur Nagar v. Diwakar Lal reported in 2000 (3) ESC 1670 ; Smt. Shashi Saxena and others v. Deputy Director of Education and others reported in 2000 (3) ESC 1990 ; Raghuvendra Babu Misra v. District Inspector of Schools, Etah and others reported in 2002 (3) E.S.C. 68. As there are conflicting Division Bench decisions of this Court relating to interpretation of the law laid by a Full Bench of this Court in the case of Pramila Mishra (supra), the matter requires to be resolved by a larger Bench.
26. For all the reasons detailed above, we are of the considered view that following questions arise for consideration by a larger bench:
(a) Whether an ad-hoc appointee, appointed against a short term vacancy, would automatically cease to be in employment upon conversion of the vacancy into a substantive vacancy?
(b) Whether the ad-hoc appointee against a short term vacancy is entitled to continue to serve, even though the vacancy is converted into a substantive vacancy, until appointment of either an ad-hoc teacher in accordance with the provisions of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 or till appointment of a regularly selected teacher recommended by the Commission/ Board, whichever is earlier?
(c) Whether the benefit of regularisation as provided under Section 33-B of the UP Act No.5 of 1982 is available only where the short term vacancy gets converted into a substantive vacancy after the commencement of U.P. Act No.1 of 1993 i.e. 7.8.1993 and not before?
(d) Whether the Full Bench decision in the case of Pramila Mishra (supra) lays down correct law as it fails to consider the legislative intent reflected by the insertion of Section 33-B in UP Act No.5 of 1982?
27. Let the papers of this case be placed before Hon'ble the Chief Justice for constituting an appropriate bench to hear the matter.
Order Date :-31.05.2013 Sunil Kr Tiwari (Manoj Misra, J.) (Sushil Harkauli, J.)