Allahabad High Court
Inderpal Singh Son Of Amar Pal Singh vs Director Of Education (Secondary), ... on 28 November, 2006
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. This is an appeal against the judgment and order dated 30.10.2006 of the learned Single Judge, dismissing the writ petition filed by the appellant. The writ petitioner has challenged the vires of Section 33-C(6) of the U.P. Secondary Education Service Selection Board Act, 1982. The writ petitioner was an ad hoc appointee, who has represented for his substantive appointment by virtue of provisions of Section 33-C (1) the representation was rejected on the ground that in view of Section 33-C (6), the writ petitioner is not entitled for substantive appointment. The writ petitioner consequently challenged the vires of Section 33-C (6). The learned Single Judge issued notice to the learned Advocate General and heard the parties, and had upheld the vires of Section 33-C (6).
2. Mr. Manish Goyal, learned Counsel for the appellant submitted that the view of the learned Single Judge that the Apex Court in the case of Kiran Gupta v. State of U.P. reported at has upheld the vires of Section 33-C, hence it will be assumed that Section 33-C(6) is intra vires, cannot be accepted. Shri Goyal further submits that the learned Single Judge has further relied on a Division Bench judgment of this Court in Balak Singh Kushwaha v. State of U.P. and Ors. reported at (1998) 3 UPLBEC 1989, in which also he submits that Section 33-C (6) was not under consideration. In support of his submission Sri Goyal contended that Section 33-C (6) in effect takes away the rights of ad hoc teacher, which have been extended by Section 33-C (1). He submits that Sub-section (6) cannot cut down the main provision of Section 33-C (1) and has to be read down. He submits that the word 'OR' used in the last sentence of Sub-section (6) "has already been filed or selection for such vacancy has already made", has to be read as 'AND'. He submits that by reading the said word 'OR' as 'AND', the same will be in accordance with the Scheme of Section 33-C (1) and carryout the object for which Section 33-C (1) was inserted by U.P. Act No. 25 of 1998. He has placed reliance on the judgment of the Apex Court reported at : State of Bombay v. R.M.D. Chamarbaugwala, for the proposition 'OR' has to be read as 'AND', for the proposition that non-obstante clause cannot be read as to cut down the main enactment; reliance has been placed on : Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. and : The Dominion of India and Anr. v. Shrinbai A. Irani and Anr. He further submits that the provision being a beneficial legislation, has to be construed in a manner that it operates as a benevolent legislation, for which preposition reliance has also been placed by the learned Counsel for the appellant in the cases, reported at 1985 (4) SCC 325: Workmen of Messrs Binny Ltd. v. Management of Binny Ltd. and Anr. and : Indian Bank v. K. Usha and Anr.
3. Learned Standing Counsel has supported the impugned judgment and has contended that the provision is wholly intra vires. He submits that Section 33-C (6) is also a part of the provisions of Section 33-C and has to be read harmoniously. He further submits that the regularization of ad hoc teachers is only an exception and cannot take away the rights of regularly selected candidates.
4. We have considered the submissions and perused the records.
5. Although the Apex Court in Kiran Gupta's case (supra) had occasion to consider the provisions of Section 33-C, but the said judgment did not specifically consider the vires of Section 33-C (6), as is clear from paragraph 46 of the judgment, where the Apex Court observed that "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"
6. In view of the above observation, it is clear that the said provision was not considered by the Apex Court and thus, we have proceeded to examine the submission made by Shri Goyal. Before we proceed to examine the respective contentions of the parties, it is useful to reproduce Section 33-C of Act 5 of 1982, which is as follows:
33-C. Regularisation of certain more appointments.-(1) Any teacher who,-
(a)(i) was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade;
(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) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921;
(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) 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 Joint Director of Education of that region, who shall be the Chairman;
(ii) Regional Deputy Director of Education (Secondary), who shall be member;
(iii) Regional Assistant Director of Education (Basic), who shall be a member.
In addition to above members the District Inspector of Schools of the concerned District shall be co-opted as member while considering the cases for regularisation of that district.
(b) The procedure of selection for substantive appointment under Sub-section (1) shall be such as may be prescribed.
(3)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment.
(b) If two or more such teachers are appointed on the same date, the teacher who is elder 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 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 filed or selection for such vacancy has already been made in accordance with this Act.
7. With regard to the submission made by Shri Goyal that the word 'OR' should be read as 'AND', it is relevant to note that Sub-section (6) contemplates two contingencies in which ad hoc teacher shall not be entitled for benefit of substantive appointment, that is, (i) such vacancy has already been filed and (ii) the selection for such vacancy has already been made in accordance with the Act. The above two situations are different and separate situations. The filing of the vacancy is obviously after the selection in accordance with the Act; filing of the vacancy is a stage subsequent after the selection; in that situation, the post is not vacant for consideration of any substantive appointment of ad hoc teachers, whereas the second part of Section contemplate a selection in accordance with the Act, meaning thereby the final result having been prepared by the Selection Board, which has not yet been implemented. Thus, Sub-section (6) envisaged denial of the benefit of substantive appointment to an ad hoc appointee, in above two contingencies and if the word 'OR' is read as 'AND', then the second contingency will never arise because the filing of the post is subsequent to selection and thus, the legislature has to be assumed to have unnecessarily and uselessly added the second clause. It is well settled rule of construction that whenever a statute is construed, the legislature is presumed not to have used any unnecessary word, or wasted a word. Thus on the plain reading of Sub-section (6), the submission of Shri Goyal that the word 'OR' has to be read as 'AND' cannot be accepted.
8. The judgment cited by the learned Counsel for the appellant in State of Bombay (supra) needs to be considered. Learned Counsel submitted, that in Sub-section (6) the word 'OR' has to be perforce read as 'AND', which will be in consonance with the right given to ad hoc teachers under Sub-section (1).
9. Reliance has been placed by Shri Goyal on paragraph 19, 20, 21 and 22 of the judgement. In the said judgment, the Apex Court was considering the provision of Section 2(1)(d) of Bombay Lotteries and Prize Competitions Control and Tax Act, 1948 as amended by Act 30 of 1952. Section 2(1)(d) as amended has been quoted in para 19 of the judgment, which is reproduced below for ready reference.
Section 2(1)(d).- "Prize competition " includes-
(i)(1) cross-word prize competition, (2) missing word prize competition, (3) picture prize competition, (4) number prize competition, or (5) any other prize competition, for which the solution is or is not prepared beforehand by the promoters or for which the solution is determined by lot or chance:;
(ii) any competition in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known; and
(iii) any other competition success in which does not depend to a substantial degree upon the exercise of skill;.
10. In the submission, it was contended that other clauses embraces in it the prize competition of a gambling nature, but the prize competitions to which the second part of the qualifying clause may apply, that is to say prize competitions for which the solution is not prepared beforehand, need not be of a gambling nature and at any rate many of them may will be of an innocent type. The Apex Court considered the definition under 1939 Act and laid down that no reasons have been suggested as to why the legislature, which treated lotteries and prize competitions on the same footing, should suddenly enlarge the first category so as to include innocent prize competitions. The following was observed in paragraph 20:
To hold that the first category of prize competitions include innocent prize competitions will go against the obvious tenor of the impugned Act. The 1930 Act dealt with prize competitions only and the first category in the definition given there comprised only gambling competitions. The 1948 Act clubbed together lotteries and prize competitions and the first category of the prize competitions included in the definition as originally enacted was purely gambling as both parts of the qualifying clause clearly indicated.
Section 3 of the Act declared all lotteries and all prize competitions unlawful. There could be no reason for declaring innocent prize competitions unlawful. The regulatory previsions for licensing and taxing apply to all prize competitions. If it were intended to include innocent prize competitions in the first category, one would have expected the Legislature to have made separate provisions for the legitimate prize competitions imposing less rigorous regulations than what had been imposed on illegitimate prize competitions.
It will become difficult to apply the same taxing sections to legitimate as well as to illegitimate competitions. Tax on legitimate competitions may well be a tax under Entry 60 on the trader, who carries on the trade of innocent and legitimate competition. It may be and indeed it has been the subject of serious controversy whether an illegitimate competition can be regarded as a trade at all and in one view of the matter the tax may have to be justified as a tax on betting and gambling under Entry 62.
Considering the nature, scope and effect of the impugned Act, we entertain no doubt whatever that the first category of prize competitions does not include any innocent prize competitions. Such is what we conceive to be the clear intention of the Legislature as expressed in the impugned Act read as a whole and to give effect this obvious intention as we are bound to do, we have perforce to read the word "or" appearing in the qualifying clause after the word "promoter" and before the word "for" as "and". Well-known canons of construction of Statutes permit us to do so. (See Maxwell on the Interpretation of Statutes, 10th Edition, page 238).
11. Thus, in the above case, the Apex Court held that the word 'OR' has to be read as 'AND' and such reading was held to be inconformity with the intent and purpose of the amended Act, 1952. In the present case as observed above, the word 'OR' cannot be read as 'AND' since reading of 'AND' in place of 'OR' is neither inconformity with the object and purpose of the provisions for giving substantive appointment to ad hoc teachers and further both these conditions as joined by 'OR' were earlier also present in Sub-section 33-A and 33-B of the Act, when provisions for giving substantive appointment to certain categories of ad hoc teachers were inserted in the Act 5 of 1982. Thus the above submission of Shri Goyal cannot be accepted.
12. Much emphasis has been given by Shri Goyal that Sub-section (6) cuts down the effect of main provision, that is, the benefit extended under Section 33-C(1) and the provision of Sub-section (6) takes away the rights given by the main enacting provision. The U.P. Secondary Education Service Selection Board Act, 1982 was enacted to establish a Secondary Education Service Selection Board for the selection of teachers in the Institutions recognised under the U.P. Intermediate Education Act. The main object of the Act was to constitute a Selection Board for providing a central agency for substantively filing of the posts in recognised secondary educational Institution. Section 33-C (1) and earlier to that, Section 33-A and Section 33-B were the provisions, which provided for giving substantive appointment to certain ad hoc teachers, subject to they fulfilling the conditions enumerated therein, and the provision for regularization of ad hoc teachers was a provision in form of exception to the general scheme of regular selection envisaged by the Act. The legislature being conscious that the Selection Board has been constituted for making regular selection through the Selection Board, it had deliberately added similar provisions being Section 33-A (3), Section 33-B (6) like Section 33-A (6). Thus, the provision that the ad hoc teacher, shall not be given substantive appointment where the post is filed up, or selection has been already made, was very much there in the legislative scheme right from insertion of Section 33-A. The provision of Section 33-C (6) is thus in line of main statutory scheme of the U.P. Secondary Education Service Selection Board Act, 1982 and does not militate against main legislative scheme and object of the Act. Giving of substantive appointment to ad hoc teacher under Section 33-C (1) has to be read subject to Sub-section (6) and provision of Sub-section (6) is nothing but an exception to rule of giving substantive appointment to ad hoc teachers. One illustration will further clarify the scheme and object of Sub-section (6). Take a situation where an ad hoc teacher, who is working .on a particular post, has also participated in the regular selection and the regular selection had already been made on the date Section 33-C was inserted, but the regularly selected candidate could not by that time join that post, can it be said that the regularly selected candidate be denied the right of appointment and ad hoc teacher, who was not selected in the regular selection, shall displace the regularly selected candidate? The answer is obviously No. Coincidently this case has same facts. The petitioner was given ad hoc appointment as Principal on 14.9.1991. Advertisement for regular recruitment was made on 25/26 December, 1995. On 5.2.1997 the petitioner also appeared for interview as amongst two seniormost teachers of the College. The result was declared on 15.4.1997 in which respondent No. 5 was declared selected as Principal. U.P. Act No. 25 of 1998 was enforced w.e.f. 20.4.1998. On 6.2.1999, respondent No. 5 joined as Principal displacing the petitioner.
13. For the submission of Shri Goyal that non obstante clause in a statute as Sub-section (6) cannot cut down the effect of main provision he has placed reliance on the judgements, reported at AIR 1954 SC 596 (supra) and AIR 1952 S.C. 369 (supra).
14. In the case of Asiwini Kumar Ghosh (supra), the Apex Court considered the provisions of Supreme Court Advocates (Practice in High Courts) Act, 1951 as well as the provisions of Indian Bar Councils Act, 1926. Section 2 of the 1951 Act as quoted in para 10 of the judgement is reproduced below:
Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court:
Provided that nothing in this section shall be deemed to entitle any person, merely by reason of his being an Advocate of the Supreme Court, to practise in any High Court of which he was at any time a Judge, if he had given an undertaking not to practise therein after ceasing to hold office as such Judge.
15. In the above case, the appellant before the Apex Court was an Advocate of the Apex Court and was also a practitioner of Calcutta High Court. Under the relevant rules of the Calcutta High Court, the appellant No. 1 was entitled to both act and plead on the appellate side, but was not entitled to act or to appear unless instructed by an Attorney on the original side. A warrant of authority was submitted by appellant No. 1 executed by second appellant/petitioner before the Registry of the Calcutta High Court to defend the latter in a pending suit. The warrant was returned with the endorsement that it must be filed by an Attorney of Calcutta High Court under the High Court rules and not by an Advocate. In pursuance of 1951 Act, the submissions were made before the Apex Court that in view of Section 2 of 1951 Act, an Advocate of the Apex Court was entitled to practise in any High Court. Reliance has been placed by Shri Goyal on paragraph 27 of the judgment.
16. The Apex Court laid down in the said judgment that the enacting part of a Statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously. In the said judgment, the above proposition was laid down in a case where both cannot be read harmoniously.
17. In the above case, the Apex Court has laid down that Section 9(4) and Section 14(3) of the Bar Councils Act and Section 2 of the 1951 Act cannot stand together. The Apex Court in paragraph 27 of the said judgment made following observations:
Obviously, Sections 9(4) and 14(3), Bar Councils Act, and Section 2 of the new Act entitling an advocate of the Supreme Court as of right to practise in any High Court cannot stand together.
Whether by force of the non obstante clause liberally construed as indicated above or of the well-established maxim of construction already referred to, the new Act must have the effect of abrogating the powers reserved and continued in the High Courts by the aforesaid provisions of the Bar Councils Act. We cannot, therefore, agree with the learned Judges below that the said two provisions have not been superseded or repealed by Section 2. As we have already observed, if such reservations had also been inserted in the new Act, the analogy with Section 14(1)(a), Bar Councils Act would have been complete, and the petitioner as an Advocate of the Supreme Court could be prevented by rules made in appropriate terms from acting on the Original Side of the Calcutta and the Bombay High Courts. But in the absence of such reservations in the new Act, his claim in these proceedings must succeed.
18. From the observations of the Apex Court as noted above, the Apex Court held that when both the provisions, that is, main enactment and non obstante clause cannot be harmoniously construed, only then enacting part will control the non obstante clause. In para 27, the Apex Court held that Section 2 of the 1951 containing non obstante clause shall override the provisions of Bar Councils Act referred therein. As we have already noticed that both the provisions of Section 33-C (1) and (6) can be harmoniously construed and be given effect to. Thus, the above judgment, in no manner, supports the contention of the appellant.
19. Coming to the next judgment of the Apex Court in Dominion of India (supra), in the above case, a property was requisitioned under the Defence of India Rules on 15.4.1943. The validity of the requisitioning order was to expire on 30.9.1946. An Ordinance was promulgated, being Ordinance No. 19 of 1946 on 29.9.1946 providing for continuance of requisitions notwithstanding the expiration of the Defence of Indian Act. Section 3 of the Ordinance is as follows:
Section 3. 'Continuance of requisitions'.-Notwithstanding the expiration of the Defence of India Act, 1939 (35 of 1939), and the rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner as may appear to it to be expedient.
20. A suit was filed by the owner of the property for delivery of possession, which was decreed by the High Court. The High Court held that there was no further extension of the duration of the requisition by the provisions of Section 3 of the Ordinance. Following was observed in paragraph 10:
10. While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the non-obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment. Whatever may have been the presumed or the expressed intention of the legislating authority when enacting Ordinance 19 of 1946 the words of Clause 3 read along with the definition of requisitioned land contained in Clause 2 (3) of the Ordinance are quite clear and it would not be within the province of the Courts to speculate as to what was intended to be covered by Clause 3 of the Ordinance when the only interpretation which could be put upon the terms thereof is that all requisitioned lands, that is, all immoveable properties which when the Defence of India Act, 1939 expired were subject to 'any' requisition effected under the Act and the rules were to continue to be subject to requisition until the expiry of the Ordinance.
No doubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed. But in spite of such strict construction to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of Clause 3 of the Ordinance covered all cases of immoveable properties which on 30.9.1946 were subject to 'any' requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period. Even those requisition orders, which by accident or design were to expire on 30.9.1946 would come to an end not only because the fixed term expired but also because the Act and the rules expired on that date and were therefore covered by Clause 3 read along with the definition in Clause 2(3) of the Ordinance and were by the clear terms thereof continued until the expiry of the Ordinance.
21. The Apex Court in paragraph 11 of the said judgment held that both the trial Court and the Court of Appeal were in error when they reached the conclusion that Clause 3 of the Ordinance had not the effect of continuing the requisition order in question.
22. Thus, in the above judgment the Apex Court, in fact, gave full operation to non obstante clause contained in Section 3 of the Ordinance and the said judgment in no manner supports the appellant's contention.
23. The two judgements relied upon by Shri Goyal, reported at 1985 (4) SCC 325 (supra) and 1998 (1) JT 265 (supra) that beneficial legislation should be construed in benevolent manner, has no application in the present case. The provision of regularization under Section 33-C is a provision carving an exception to the regular selection by the Selection Board and in comparison to a regularly selected candidate, the ad hoc teacher cannot be preferred.
24. We do not find any ground to declare Section 33-C (6) unconstitutional and ultra vires. The whole Section 33-C including Sub-section (6) has to be read as whole. The putting of Sub-section (6) as a condition as provided in Section 33-C (1) as sub Clause (e) will make it clear that such substantive appointment to ad hoc teacher can be granted, if he fulfils all those conditions. Thus, it is further reinforces our view that Sub-section (6) has to be read along with whole Section and Sub-section (1) and Sub-section (6) can both be given effect to on harmonious construction of the provision.
25. In view of the foregoing discussions, we do not find any ground to interfere with the judgment and order of the learned Single Judge.
26. The appeal is dismissed.