Allahabad High Court
Shrimati Alka Devi Wife Of Shri Narendra ... vs Regional Inspectress Of Girls Schools ... on 7 October, 2004
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
In all the above writ petitions following learned counsels have been heard for the following respective parties persons either they are petitioner or respondents: -
Learned Counsel For on behalf of
(I) Sri Manish Goyal. Smt. Alka Devi
(II) Sri Arun Tandon. Smt. Vijay Tandon.
(III) Sri Sushil Chandra Srivastava Smt. Rekha Rani Agrawal
(IV) Sri R.S. Parihar. U.P. Secondary Education
Services Commission.
(V) Sri M.C. Chaturvedi, A.C.S.C., State of Uttar Pradesh.
Sri S.S. Sharma, Standing Counsel,
Sri Raj Kumar, Standing Counsel, &
Km. Anakshi Sharma, Standing Counsel.
1. In Writ Petition No. 23964 of 1988 prayer has been made for a writ of" certiorari quashing the order dated 03.12. 1988 passed by the Regional Inspectress of Girls Schools, Ist Regions, Meerut (Annexure-1 to the writ petition). and not to interfere in the functioning of the petitioner (Smt. Alka Devi) as an adhoc Principal of Mahadevi Ayodhyanath Kanya Uchchatar Madhyamik Vidyalaya Khurja, District Bulandshahr (hereinafter in short called as the 'Vidyalaya').
2. in Writ Petition No. 1319 of 1989 prayer has been made for writ of certiorari quashing the order dated 29.9.1988 passed by the Regional Inspectress of Girls Schools, 1st Region, Meerut and for commanding the respondents to permit the petitioner (Smt. Vijai Tandon) to work as Principal of the said 'Vidyalaya'.
3 In Writ Petition No. 13518 of 1990 the petitioner (Smt. Vijai Tandon) has prayed for issuance of writ of mandamus directing the respondents to treat the petitioner as Principal of said 'Vidyalaya' and for payment of full salary including increments, bonus, etc. according to revised s and other benefits as payable under law and further direction for restraining the respondents meanwhile from appointing any person to the post of Principal of said 'Vidyalaya'.
4. In Writ Petition No. 34832 of 1996 the petitioner (Smt. Alka Devi) has prayed for issuance of writ of certiorari for quashing all the proceedings of the respondent No. 1 [i.e. Secretary. U.P. Secondary Education Service Commission (in short called 'Commission')] for making selection to the post of Principal in the 'Vidyalaya' and further prayed for directing the respondents not to recommend anyone to the post of Principal of the said 'Vidyalaya' and also for directing the respondents (specially respondent Nos. 2 and 3) to treat the petitioner as permanent Principal of the "Vidyalaya' from 06.04.1991 in the light of the provisions of Section 33-A (I-C) of U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter in short called 'Board Act, 1982') and for payment of regular salary to the post of principal 5 In Writ Petition No. 1249 of 1999 prayer has been made for directing the respondents to release the salary of the petitioner (Km. Rekha Rani) to the post of Principal of 'Vidyalaya' and for directing the respondents to treat the petitioner as permanent Principal as the selection of the petitioner was made through U.P. Secondary Education Services Commission and for further direction to provide her all facilities as well as benefits of the aforesaid post in accordance with law.
6. In Writ Petition No. 18794 of 1999 petitioner (Smt. Alka Devi) has prayed issuance of writ of certiorari quashuig the order dated 30.03.1999 passed by the respondent No. 2 i.e. D.I.O.S., Bulandshahr and letter order dated 15.04.1997 issued by the respondent No. 3 i.e. Committee of Management of said "Vidyalaya" with all its consequential effect and has) further prayed for issuance of writ of mandamus commanding the respondents not to interfere with working of the petitioner as principal of 'Vidyalaya" on the basis of the orders dated 30.03.1999 passed by in respondent No. 2 and letter/ order dated 15.04.1997 issued by the respondent No. 4 with all its consequential effect.
7. Since all the above writ petitions were heard from time to time and in many of the writ petitions interim orders were granted and in some of the writ petitions interim orders were not granted. In! Writ Petition No. 23964 of 1988 interim order dated 09.12.1988 was granted by a Division Bench of this Court suspending the operation of the order dated 03.12.1988. in Writ Petition No. 34832 of 1996 interim order dated 01.11.1996 was granted to the effect that the petitioned shall be permitted to continue to function as ad-hoc Principal of the 'Vidyalaya', provided the person selected by the Commission has not yet joined. In Writ Petition No. 1249 of 1999 interim order dated 03.02.1999 was granted to the effect that respondents may either pay salary to the petitioner or show cause by filing counter affidavit. In Writ Petition No. 18794 of 1999 also the interim order dated 11 05.1999 was granted to the effect that the respondents were to allow to the petitioner to continue functioning as principal, provided the respondent No. 5 had not already joined and had drawn salary. However, in Writ Petition Nos. 1319 of 1989 and 13518 of 1990 no interim orders were granted.
8. The controversy in the present writ petitions centres round to the night of Smt. Alka Devi to continue as Principal in 'Vidvalava'. For proper appreciation of the controversy it would be relevant to consider these petitions in two stages as follows:-
Stage-I: Right to continue as Ad-hoc appointee after due approval Stage-II: Right to continue after corning into force of Section 33-A(1A).
33-A(1-C) and Section 33-A(2) of the 'Act, 1982'.
The following writ petitions pertain to Stage-I.
a) Writ Petition No. 23964 of 1988 filed by Smt. Alka Devi.
b) Writ Petition No. 1319 of 1989 tiled by Smt. Vijai Tandon.
c) Writ Petition No. 13518 of 1990 filed by Smt. Vijai Tandon In the above three writ petitions, writ petition No. 23964 of 1988 is considered to be leading petition for the reasons that the stand taken in the other two writ petitions is the stand, which has come up in the counter and supplementary counter affidavit filed in Writ Petition No. 23964 of 1988.
9. The brief facts of writ petition No. 23964 of 1988 are that the petitioner (Smt. Alka Devi) was appointed on 01.11.1976 as an Assistant Teacher in L.T. Grade in 'Vidyalaya', and on 20.01.1988 she applied for being appointed as Principal on ad-hoc basis claiming herself to be the senior most teacher in the 'Vidyalaya'. Thereafter, the anagement of 'Vidyalaya' passed a resolution dated 28.01.1988 proposing to appoint the petitioner (Smt. Alka Devi) as ad-hoc Principal and the approval to the said resolution was accorded by the Regional Inspectress of Girls Schools by its order dated 29.09.1988. After getting approval the Management issued letter appointing the petitioner (Smt. Alka Devi) to function as ad-hoc Principal, consequent upon she was being paid salary to the post of adhoc principal. However, according to the petitioner the Regional Inspectress of Girls Schools by an order dated 03:12.1988 put her approval order dated 29.09.1988 in abeyance without giving any opportunity of hearing to the petitioner (Smt. Alka Devi) and without disclosing any material, which has been challenged by the petitioner (Smt. Alka Devi) in the writ petition no 23964 of 1988, wherein this Court was pleased to grant the stay on 09.12.1988 permitting the petitioner (Smt. Alka Devi) continuing to work as ad-hoc Principal in 'Vidvalaya'. The interim order still subsist and has not been vacated at any stage.
10 At this stage Smt. Vijai Tandon, came forward by way of impleadment application claiming herself to be the senior most teacher of 'Vidyalaya' and claimed to have adversely been affected by the pendency of above writ petition Smt. Vijai Tandon pleaded that she was appointed as an Assistant Teacher in said 'Vidyalaya' way back in. 1970 when it was functioning as a Junior High School only, thereafter, she claimed to have been appointed as 'Head Mistress' of Junior High School on 26.08.1970 and since then she claimed to have continuously been serving as Principal of said 'Vidyalaya' even though the 'Vidyalaya' was upgraded to the level of High School in the year 1973 and only for a short duration from 29.10.1976 to 07.12,1977, one Smt. Raj Kumari Agrawal had served as Principal, however, after 07.12.1977 Smt. Vijai Tandon continuously served as a Principal till 02.07.1983 when the Management had terminated her services and later on refused to comply the orders passed by the Regional Inspectress of Girls School, it was further pleaded on behalf of Smt. Vijai Tandon that since her termination was illegal, therefore, she shall be deemed to have continued to be the senior most teacher in 'Vidyalaya' and hence the order dated 03.12.1988 shall be taken in her favour in case the above writ petition is dismissed. It has been submitted on behalf of Smt. Vijai Tandon that under Section 16 G(3-a) of U.P. Intermediate Education Act, 1921 only after taking prior approval of Regional Inspectress of Girls School the Management could have passed the order of termination in view of the decision of 1985 UPLBEC 1382 (Ajab Singh v. Gochar Krishi Intermediate College and Ors.). The Opportunity of hearing was to be given to Smt. Vijai Tandon before termination in view of Regulation 44 of Chapter III of 'Act, 1921' in view of 1982 UPLBEC, 246 (Raj Deo Yadav v. The State of U.P. and Ors.). It. has been submitted that Smt. Vijai Tandon was to retire on 13.6.2001 as such she was entitled to the salary and post retrial benefit, whereas this aspect is denied by learned Counsel for Mrs. Alka Devi by saying that when Smt. Vijai Tandon was not in service after 07.03.1983 then there is no question of her continuity and retrial benefits.
11. In reference to above it has been submitted on behalf of petitioner (Smt. Alka Devi) that the plea of Smt. Vijai Tandon is misconceived, as according to her own documents it is clear that charge-sheet dated 16.04 1983 was served by the Management upon Smt. Vijai Tandon, which was never replied by her, Inquiry Officer submitted inquiry report, over which the Management had passed a resolution dated 23.06.1983 and in reference thereto the service of Smt. Vijai Tandon was terminated on 02.07.1983 and the management refused to take any work front her however, the action against her was never challenged. After termination of Smt. Vijay Tandon, since Smt. Alka Devi (the petitioner) being senior most teacher available in the Vidyalaya had started officiating as Principal from 03.07.1983. Thereafter, on the basis of the requisition sent by the Management, on 16.06.1984 the Commission advertised vacancy to the post of Principal. A writ petition filed by Smt. Vijai Tandon challenging the said advertisement as well as seeking relief for continuing as Principal in said Vidyalaya was dismissed on 12.10.1987 by this Court (D.B.). Consequent upon, such dismissal, the right of Smt. Vijai Jandon to continue as Officiating Principal was not accepted. On 5.1.1988 the management issued a seniority list, wherein the petitioner (Smt. Alka Devi) was shown as senior most teacher in 'Vidyalaya' and so far as Smt. Vijai Tandon is concerned, it was specifically mentioned in the seniority list that she is out of service since; 02.07.1983.
Learned Counsel for the petitioner (Smt. Alka Den) has submitted that in conspectus the above facts show that Smt. Vijai Tandon was not attending me 'Vidyalaya' since 02.07.1983 and her writ petition for declaration of the right to continue as an officiating Principal was dismissed and as per the seniority list Smt. Alka Devi was the senior most teacher of 'Vidalaya'.
12. In respect of the order dated 10 02.1984, which has been filed as Annexure-SCA-15 along with supplementary counter affidavit of Smt. Vijai Tandon, a bare perusal of same would show that in views of an interim direction till the Service Selection Board takes a decision regarding approval of the termination of Smt. Vijai Tandon may be treated in service as Assistant Teacher only. This order was modified by a Circular dated 12.03.1984 of the Service Selection Board to the effect that proposed punishment prior to 01.01.1984 are to be approved by the Regional Inspectress of Girls Schools. A combined reading of order dated 10.02.1984 and circular dated 12.03.1984 would show that the], entire formalities were completed in accordance with Section 16 G (3) (2) of the Intermediate Education Act, 1921 (hereinafter in short called Act, 1921') but the Regional Inspectress of Girls Schools had failed in her duty, to communicate the decision in terms of regulation 44 of the U.P. Intermediate. Education Regulations, hence the committee of management cannot be blamed for not treating Smt. Vijai Tandon as the senior most teacher in the college particularly when above action was never challenged before any higher authority. Smt. Vijai Tandon had also never availed remedy provided under Section 16 G (3) (c) of the 'Act, 1921'. Also it is evident from paragraph 38 of the supplementary counter affidavit that the Management continuously requested Smt. Vijai Tandon to join the college as an Assistant Teacher but Smt. Vijai Tandon did not report to the college and had never performed her duties as an Assistant Teacher. This stand is supported from Annexure-SCA-25 and SCA-26, which are own admissions of Smt. Vijai Tandon.
According to learned Counsel for the Smt. Alka Devi, she was the senior most teacher in the Vidyalaya and as per the law was appointed as ad-hoc Principal on a substantive vacancy and without following the principle of natural justice the order dated 03.12.1988 could not have been passed and as such the same is liable to be quashed. Since there was an interim order operating in favour of Smt. Alka Devi, she will be presumed to be a validly appointed Ad-hoc principal since 28.01.1988.
13. The writ petition No. 34832 of 1996 may be considered to be the leading case of the following writ petitions pertains to Stage-II.
a) Writ Petition No. 34852 of 1996 filed by Smt Alka Devi.
b) Writ petition No. 18794 of 1999 filed by Smt Alka Devi.
c) Writ Petition No. 1249 of 1999 filed by Km. Rekha Rani Agrawal.
14. For convenience the relevant provisions of Sections 16 G (3) (a), 16 D (3) (i) and Section 16 E(10) of 'Act. 1921' dealing with punishment, action against management and deemed approval respectively are reproduced as below-
"16-G (3) (a)- No Principal, Headmaster or teacher may he discharged or removed or dismissed from service or reduced in rank or subject to any diminution in emoluments, or served, with notice of termination of service except with the prior approval in writing of the inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations.
16-D (3) (i)- the Committee of Management of an institution has Jailed to comply with the judgment of any court or any direction made under this Act or any other law for the time being in force, or 16-E (10)-Where the State Government. In case of the appointment of Head of Institution, and the Director in the case of the. appointment of teacher of an institution, is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or as the case may be the Director may after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary."
The Regulation 2 (d) and Regulation 6 (6) of Chapter-II of Regulations framed under the "Act, 1921" regarding deemed approval on appointment and deemed approval to resolution of management provide as under :-
"Regulation 2 (d)- The Regional Deputy Director of Education shall communicate his decision on such proposal within two weeks from the date of receipt thereof, failing which the Regional Deputy Director shall be deemed to have given his concurrence to such proposal.
Regulation 6(6)- Within three weeks from the date of receipt of the proposal under clause (5) the Inspector shall communicate his decision thereon to the Manager failing which the Inspector snail be deemed to have given his concurrence to the resolution passed by the Commence of Management."
Regulation 44 of Chapter-III of 'Act, 1921' provides as under -
"The Inspector or Regional Inspectress shall for the purpose of proceedings as envisaged in Sub-section 3 (a) of Section 16(g) of the Act or for adjudication of proposed punishment against any employee of clerical cadre within six weeks of receipt of complete proposal inform the Management about his her decision. If incomplete proposal is received from the Management, the sanctioning authority shall ask to re-submit the complete proposal and period of six weeks as proposed in this regulation would be counted from the dale of receipt of complete papers to the sanctioning authority. These papers may he sent either by registered post or by special bearer."
At the outset, it will be pertinent to quote the provisions of Section 33 A (1-A), (1-C) and 33A (2) of the 'Board Act, 1982 as under-
"33. (1-A): Every teacher appointed by promotion on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) order, 1981. as amended from time to time, who possesses the qualifications prescribed under or is exempted from such qualifications in accordance with the provisions of Intermediate Education Act, 192l shall with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity, provided such teacher has been continuously serving the institution from the date of such ad-hoc appointment to the date of such commencement.
(1-C): Every teacher appointed by promotion or by direct recruitment before July 31, 1988 on ad hoc basis against a substantive vacancy in accordance, with Section 18, who possesses the qualification prescribed under, or is exempted from, such qualification in accordance with the provisions of the Intermediate Education Act, 1921, shall, with effect from, the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, he deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement (2): Every teacher deemed to have been appointed in a substantive capacity under Sub-section (1) or (1-A) or (1-B) or (1- C). shall be deemed to be on probation from the date of commencement re/erred to in Sub-section (1) or (1-A) or (1-B) or (I-C) as the case may be".
First Removal of Difficulties Order. 1981 will be applicable in the present case and the paragraphs 2 of the same was substituted by the Second Removal of Difficulties Order by paragraph 5 as follows:-
"5. Substitution of paragraph 2 of the (First) Removal of Difficulties Order, 1981.- In the First Removal of Difficulties Order, 1981, for paragraph 2, the following paragraph shall be submitted, namely ;
"2. The management of an institution may appointment by Promotion or by direct recruitment a teacher 6n purely ad hoc basis in accordance with the provisions of this Order in the case of a substantive vacancy caused by death, retirement. resignation, or otherwise"
Paragraph 4(1) (a) of the First Removal of Difficulties Order, 1981 was amended by the Third Removal of Difficulties Order, 1982 vide paragraph 2 (ii) as follows:-
"(a) in the case of Intermediate College, by the senior most teacher of the institution in the Lecturers' grade and in the case of a High School, by the senior-most teacher of the institution in the trained graduate (L.T.) grade."
Paragraph 2 (3) (iii) of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 provides deemed approval on short term vacancy as follows: -
"2 (3) (iii)- The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval."
15. According to learned Counsel for Smt. Alka Devi it is evident from the proceedings which occurred during the stage-I that the petitioner came to be appointed on ad-hoc basis against a substantive vacancy and continued as such upto the date of commencement of the amended Act 1991 and even thereafter The amended 'Act, 1991' came into force on 06.04.1991 and oil the basis of such amendment the petitioner became entitled TO be treated a duly appointed principal in the substantive vacancy. The post of Principal in the Vidyalaya was advertised on 11.01.1996 by the "Commission" and on 01.11.1996 the interim order was passed by this Court in writ petition no 34832 of 1996 permitting the petitioner to continue in case the candidate selected by the Commission had not joined the post and by virtue of this interim order the petitioner had continued as the Principal in the said Vidyalaya '
16. Learned Counsel for Km. Rekha Rani Agarwal submitted that she came to be appointed as an assistant teacher in the Vidyalaya, due to the promotion of Smt. Alka Devi as ad-hoc Principal participated in the selection being conducted by the 'Commission' pursuant to the advertisement dated 11.01.1996 and was declared selected on 15.04.1997 by the 'Commission', therefore, she filed an impleadment application in the above writ petition claiming to be necessary party being affected from the outcome of writ petition.
Despite the selection of Km. Rekha Rani Agarwal, she could not be permitted to join the 'Vidyalaya' in view of the order dated 01.11.1996 of writ petition No. 34832 of 1996, therefore, she preferred a separate Writ Petition No. 28326 of 1997 for permitting her to join the 'Vidyalaya', which was disposed of on 01.09.1997 with a direction to the District Inspector of Schools for deciding her representation and in pursuance thereto her representation was pending adjudication. In the meantime an Intervener. Application filed by Km. Rekha Rani Agarwal in Special Appeal No. 180 of 1996 (in the case of Balak Singh Kushwaha) was disposed of on 25.03.1998 with a direction that pending disposal of the special appeal, candidates selected by the commission shall be permitted to join to the post of Principal in accordance with law. On the strength of such order passed by this Court (DB) Km. Rekha Rani Agarwal joined ' Vidyalaya' on 16.04.1998, however was not paid salary to the post of principal, therefore, she filed representation dated 11.11.1998 followed by writ petition no 1249 of 1999 wherein interim order was issued on 03.02.1999 indicating either for payment of salary or to show cause by filing counter affidavit. This writ petition was filed by concealing the fact that she had already moved in November, 1998 an impleadment application in writ petition No. 348.32 of 1996. In reference to the above order the District Inspector of Schools passed an order dated 30.03.1999 approving the selection of Km. Rekha Rani Agarwal as principal of 'Vidyalaya", however, this appointment was subject to the outcome of the judgement of the Supreme Court, which decided the controversy on 28.09.2000 in the case of Kiran Gupta and Ors v. State of U.P. and Ors., .
17. The entire controversy revolves on the interpretation on the provisions of the U.P. Secondary Education Services Commission and Selection Board (Amendment) Act, 1991 and in case if the benefit of such amendment, in the facts and circumstances of the present case, is extended to the petitioner (Smt. Alka Devi) then the entire proceeding undertaken for selection to the post of principal in 'Vidyalaya' might be vitiated for the simple reason that there can be no advertisement in absence of a vacancy.
18. A bare perusal of Section 33-A (1-A) shows that it can be pressed into service, provided the petitioner satisfies the following conditions:
1. A teacher including the Principal as per Section 2(k) of the Act must have been appointed by promotion on ad hoc basis against a substantive post.
2. Such appointment should have been made in accordance with para 2 of the First Order of 1981 as amended from time to time.
3. One should possess the qualifications prescribed under the 'Act, l921 or could have been exempted from such qualification.
4. The regularisation shall be with effect from the date of commencement of the amending Act, 1991.
5. Subject 10 the rider that such teacher should be continuously serving in the institution from the date of his initial ad hoc appointment till the date of the commencement of the amending 'Act, 1991'.
A perusal of Section 16-G (3) of 'Act, 1921' reveals that "prior approval" is required for terminating the services of any teacher or Principal in the Vidyalaya. The question is about the effect if prior approval was not granted or the termination order is served without prior approval.
19. On behalf of Smt. Alka Devi it has been submitted that termination order becomes effective irrespective of the fact that prior: approval was not granted for terminating the service of the teacher. The order of termination cannot be termed to be an invalid order or an order of no consequence inasmuch as prior approval is only a rule of procedure which could not affect the right of the Management (the employer) in dispensing with the services of an employee. Section 16G (3)(a) shows that the District Inspector of Schools has been given only a limited power of either approving or disapproving the decision taken by the Management regarding termination of services of a teacher. The said section cannot have the effect of vesting power in District Inspector of Schools to grant any kind of declaratory relief like ordering reinstatement of a teacher or issuing direction to the management for continuation of services of a teacher. Such a power is not borne out from the text of Section 16G (3)(a) and the Legislature has never contemplated the situation where such wide powers gets vested in an authority like the District inspector of Schools, the resultant affect of the situation would be that where the prior approval has not been obtained as required under Section 16 G (3) (a), a teacher, whose services have been terminated by the Management, cannot be deemed to be continuing in service. No such presumption about continuity in service of the teacher can be spelled out from a situation where prior approval was not obtained by the management from the District Inspector of Schools for terminating the services of the teacher. The order of the Management is affective and fully valid as against the teacher whose services are terminated and the teacher cannot be permitted to take stand that since Section 16 G (3) (a) was not followed, therefore, the order of termination is of no consequence. The aforesaid submission is fortified from judgement of this Court (D.B.) in the matter of City Montesstort Schools, Lucknow v. District Inspector of Schools Lucknow and Ors., 1983 UPLBEC 479, where the Court in paragraphs 9, 10 and 12 has observed as under: -
"9. Even assuming the appointments to be merely irregular and not void ah initio and further assuming that the provisions of Section 16-G (3) (a) and of Rule 15 respectively were applicable to the termination of the service of the teachers, what we find is that the District Inspector of Schools and the Zila Basic Shiksha Adhikari respectively have not been conferred any power under these statutory provisions noticed earlier either to make a declaration of invalidity of termination or to direct re-instatement of the teachers whose sendees have been purported to be terminated. The provisions of Section 16-G (3)(a) are to the effect that no teacher may be served with a notice of termination of service except with the prior approval in writing of the Inspector Thereafter Sub-clause (h) says that the inspector may approve or disapprove of the notice for termination of service proposed by the management. Likewise, Rule 15 of the Basic Education Rules lays down that no teacher of a recognised school may be served with a notice of termination of service except which the prior approval in writing of the District Basic Education Officer. The power vested under these provisions is thus expected to be exercised when the management seeks the approval of a proposed notice of termination to be issued to the teacher. In the instant case, the management never sought the approval of the Inspector or of the District Basic Education Officer before issue of termination notice The 'proposal' for termination was never submitted to the Inspector or the Basic Education Officer, as the case may be. The termination of service was sought to be affected without securing such approval. Such a termination may be good or bad, but the (jurisdiction of the Inspector or of the Basic Officer was never invoked by the management, (Neither the Inspector nor the Basic Education Officer has been given power to intervene after an invalid termination). Statutory authorities do not have any genera jurisdiction either to give any declarator reliefer to grant specific relief such as an order of re-instatement (vide Semiullah Beg v. District Magistrate, 1980 AWC 430, Paras 5 and 6, a Division Bench case to which one of use was a party). Such general jurisdiction vests only in Civil Court and indeed it is open to question, in respect of which it is not necessary to express any final opinion in the instant case, as to whether even the civil Court could grant any relief by way of re-instatement or declaration in a case of this kind. It has no doubt been argued on behalf of the petitioners on the authority of Versh Degree College v. Laxmi Narain, AIR 1976 SC 888, that even a civil suit would not lie. We are however not concerned in these writ petitions with the question of maintainability of a civil suit. We are concerned only with the power of the District Basic Education Officer respectively under the two statutory provisions noticed earlier."
"10. The Intermediate Education Act lays down that if the management acts in contravention of the provisions of the Act the Director can direct the management to remove any defect or deficiency found on inspection or otherwise, vide Section 16- D (2). Sub-section (3) lays down that if the management fails to comply with any such direction the Director may refer the case to the Board for withdrawal of recognition or recommend to the State Government to proceed against the institution under Sub-section (4). Sub-section (4) empowers the State Government to appoint an authorised controller over the institution. Likewise Section 12 of the Basic Education Act lays down that the Director may direct the management of a Basic School to remove any defect or deficiency found on, inspection or otherwise, and on the failure of the management so to do the Director may refer the case to the Board for withdrawal of recognition of such school and on receipt of recommendation under Sub-section (3) the Board may withdraw recognition of that school. No power has been given in either case even to the Director to grant any declaration to a teacher whose services have been sought to be terminated in contravention of the provisions of statute or to declare that the teacher continues in service. Any direction by the Director concerned, to the management to re-instate a teacher if disobeyed could only result ultimately in de-recognition of the school or in the appointment of an authorised controller over its management. The direction bound not have the effect of treating a teacher as having continued in service on his post. By way of contract reference may be made to Section 36 (4) (iii) of the U.P. State Universities Act, 1973, which docs give to the tribunal power to direct reinstatement of a teacher."
"12. It is not necessary for us to express any opinion on the various contentions noticed above. Suffice is to say that the legislature itself in its wisdom has not conferred any powers on the District Inspector of Schools and District Basic Educator) Officer to direct re-instatement of teachers. The legislature has provided sanction for the statutory regulations by laying down that any institution committing breach of those regulatory provisions would be liable to be visisted with the penalty of de-recognition or of being taken over. It is not for us to substitute a different relief for the teachers or a different penalty to be visisted on the management. So far as the exercise of discretion! under Article 226 of the Constitution is concerned two things stand out, (First is that no authority could be permitted to usurp a power or jurisdiction which it does not possess). (The second is that these institutions which enjoy the substantial support of the management and of the bulk of their other teachers who are still on their rolls.) It was argued on behalf of the respondents that other teacher are supporting the management only but of feer of vind curvenction. On behalf of the management it has been pointed out that actually the pay s in the institutions concerned are (much better than the pay scales admissible under the Intermediate Education Act as prescribed by the State Government. Not only this, the number of teachers employed by the institutions is far in excess of the number required by the department. The teachers students ratio in these institutions is much higher than in the aided recognised schools. These facts have not been controverted, and the teachers support cannot therefore be ignored merely on the suspicion that the same has been secured under threat or coercion.) Another circumstances pointed out on behalf of management is that although the schools are co-educational with a preponderance of boys the majority of teachers and all the heads of the institutions are ladies. According to the managements way of thinking the induction of a greater number of ladies help in the maintenance of discipline and of standards. Whatever one way think of this theory the facts remains that the lady teachers would themselves feel insecure if they were subjected to regulatory provisions.) The Service of many of them may have to be dispensed, with on account of redundancy. (The Support of the guardians moreover cannot be explained away merely on the basis of fear. Considering the entirety of circumstances, we are of opinion that there is no sufficient ground for refusing to exercise the discretionary jurisdiction in favour of the petitioners on the grounds urged on behalf of the respondents and the Sangh)."
20. According to the learned Counsel for Smt. Alka Devi the provisions of Section 16-G (3)(a) and powers under regulation-44 are uncanalised, unguided and arbitrary. The Supreme Court had to deal with the aforesaid provision in the matter of Committee of Management. St. John's Inter College v. Girdhari Singh, . After going through the entire provisions as well as relevant regulations the Supreme Court was of the opinion that the view of this Court (F.B.) in Smt. J.K. Kalra v. Regional Inspectress of Girls Schools, Meerut and Ors., 1996 All.LJ 2006, is unsustainable and that view has been overruled in the aforesaid judgement. On facts, the Supreme Court was dealing with the applicability of the provisions upon a minority institution. The relevant observations of the Supreme Court on the scope of applicability of Section 16-G (3)(a) find mentioned in paragraph-6 of the judgement, which reads as under.-
"So adjudged, we are unable to find any guideline in Section 16-G (3) (a) of the Uttar Pradesh Intermediate Education Act to be followed by the. Inspector in the matter of approving or disapproving the order of termination of service of an employee of the aided educational institution We are unable to accept the reasoning of the majority judgment of the Full Bench of the Allahahad High Court that Regulation 44 provides the guidelines The said Regulation 44 merely prescribes the period within which the Inspector or Regional Inspectress is required to communicate his her decision to the Management and further in a case where all the papers have not been received from the Management the said Inspector Inspectress could call for the papers from the Management. But that by no stretch of imagination can he held to he providing the guidelines for exercise of power in the matter of approval or disapproval of the order of termination passed by the Management. Since no appropriate guidelines have been provided for exercise of power under Section 16-G (3)(a) of the Act. it must be held that such an uncanalised power on the Inspector or the Inspectress would tantamount to an inroad into the power of disciplinary Control of the Managing Committee of the minority institution over its employees and as such the said provision would not apply to the minority institution, as was held by this Court in Frank Anthony case. In this view of the matter, the majority view in the full Bench judgement of the Allahabad High Court must be . held to he erroneous and cannot he sustained. "
The Supreme Court in Committee of Management, St. John's Inter College v. Girdhari Singh (supra) further went on to observe that the provisions contained under Section 16-G (3)(a) were found to be inadequate and therefore the Legislature brought into force a new enactment in the name of "Board Act. 1982", which has over ridden the provisions of Section 16-G (3)(a). The Supreme Court in paragraph-? has observed as under -
"...The Statement of Objects and Reasons of the aforesaid U.P. Act 5 of l982, unequivocally indicates that the earlier provisions contained under Section 16-G(3)(a) of the Intermediate Education Act, 1921 were found to be inadequate, where the Management proposed to impose the punishment of dismissal, removal or reduction in rank. In other words, the legislature thought that the power of approval or disapproval to an order of punishment imposed by the management should not be vested with a lower educational authority like the District Inspector of Schools but should be vested with an independent commission or board which could function as an independent and impartial body. With the aforesaid objective in view, the legislature having enacted the Uttar Pradesh Secondary Education Services Commission and Selection Board Act, 1982 , and the Services Selection Board having been brought into existence in exercise of power under Section 3 of the aforesaid Act, the power of the Inspector/ Inspectress under Section 16-G (3)(a) of the Intermediate Education Act, 1921 no longer could be exercised, as it would be inconsistent with the provisions of U.P. Act 5 of 1982 and would frustrate the Very object for which the legislation has been enacted."
The Division Bench of this Court as long back in (St. Joseph's Higher Secondary Schools, Meerut Cantt. and Ors. v. Ravi Shankar Sharma and Ors.) framed an opinion that the power of the Inspector under Section 16-G (3)(a) cannot be said to be a check on maladministration of an institution and the power so conferred upon the Inspector is uncanalised and unguided. This Court in case of Ravi Shankar Sharma (supra) in paragraph-14 has observed as under: -
"14. The power conferred on the Inspector is a check on the administration. It is uncanalised and unguided in the sense that no facts have been mentioned on the basis of which alone the Inspector may exercise his power. In the absence of any guideline, it cannot be held that the power of approval conferred on the Inspector was solely a check on mal-administration of the institution. As discussed by the Supreme Court in St. Xavier's College case, such a blanket power directly interferes will the disciplinary control of the managing body over its teachers. The decision in the case of St. Xavier's College is directly applicable to the present case and accordingly it may be held that the impugned provision is violative of Article 30(1) of the Constitution."
The contention of the other side is that the Section 16-G (3)(a) is valid and is not violative of Article 14 of the Constitution and in support of their contentions they have relied upon a judgement of this Court in 1982 UPLBEC 533 (Committee of Management v. Joint Director of Education) . The said judgement was considered by the Full Bench of this Court in case of Smt. J.K. Kalra (supra) and was approved in paragraph-37, which reads as below: -
"37. In Committee of Management v. Joint Director of Education, 1982 UPLBEC 533, the validity of Section 16-G(3) of the Act was challenged on the ground that it is violative of Article 14 of the Constitution. This Court, relying upon the decision of the Katra Education Society Case (supra) held that this provision is not violative of Article 14 of the Constitution. Similar view was expressed in Shamin Zafar v. Regional Inspectress of Girls Schools, (1992) 1 UPLBEC 598. There is no reasons to take a contrary view."
However, since the view taken in J.K. Kalra (supra) has been upset by the Supreme Court in the base of Girdhari Singh (supra), therefore, the judgement reported in 1982 UPLBEC 533 gets implidely overruled for the reason that on 16-G(3)(a) the Supreme Court has clearly held the power to be unguided and arbitrary, therefore, the view of this Court in 1982 UPLBEC 533 cannot take precedence over the view of the Supreme Court as in case of Girdhari Singh (supra).
The decision of 1985 (2) UPLBEC 1352 referred by learned Counsel for Smt. Vijay Tandon was applicable only when the termination order itself was under challenge. In the present case the termination order is neither challenged by Smt. Vijay Tandon nor any relief was sought regarding termination before any authority, therefore, the above judgement was inapplicable in the facts of the present case. The facts of the present case shall fall within the observations made in the case of City Montessori Schools (supra) as the affect of non-granting of prior approval does not result in automatic continuation in service of the teacher concerned. (21) On the aspect when mandatory provision shall be treated as directory in the matters of dismissal, removal etc. Learned Counsel for Smt. Alka Devi has placed reliance on AIR (32) 1945 Federal Court 67 (Biswanath Khemka v. Emperor) and (G.S. Lamba and Ors. v. Union of India and Ors.) .
In Biswanath Khemka (supra) the Court has observed as under:-
"We are further of the opinion that the direction laid down in Section 256 is directory and not mandatory and that non-compliance with it would not render an appointment otherwise regularly and validly made inejjective or inoperative. It seems to us that any other view would lead in many cases to results which could not have been amended by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of making recommendations for the grant of magisterial powers: see Montreal Street Railway Co. v. Normandin [( 17)4 A.I.R. 1917 P.C. 142: 1 917 A.C. 170]"
The Supreme Court in G.S. Lamba (supra) in pragraph-27 has observed as under:-
"27. It was however contended that it is permissible to infer that promotions in excess of quota were given by relaxing the quota rule because the posts in Integrated Grades II and III were within the purview of the Union Public Service Commission and the proviso to Rule 29(a) mandates that the power to relax is hedged in with a condition that it can be done after consultation with the Commission, and there is nothing to show that the Commission was ever consulted. Undoubtedly, the proviso to Rule 29 (a) requires that the controlling authority cannot relax any of the provisions of the rules in respect of posts which are within the purview of the Union Public Service Commission except after consultation with the Commission. It was submitted that nothing is placed on the record by the petitioners to show that power 50 relax the quota rule was exercised after consultation with the Union Public Service Commission. Assuming that there was no consultation, would the exercise of power to relax be vitiated and the appointments made in relaxation of the mandatory quota rule would be ab initio invalid. Commencing from the decision of the Privy Council in Montreal Street Rly. Co. v. Normandi; AIR 1917 PC 142 it is well settled that when the provisions of the statute relate to the performance of a public duty and the case is such that to hold null land void acts done in neglect of this duly would work general inconvenience or injustice to persons who have no control over those entrusted with the duty and that at the same the(sic) would not promote the main object of the Legislature, it has been the practice to hold such provisions to be director only, the neglect of them though punishable, not affecting the validity of the acts done. The view was expressed in the context of the failure to revise list of Jurors by the Sheriff according to the revised statutes of Quebec and conviction was challenged on the ground of mistrial held by selecting Jurors from unrevised lists. The challenge failed, Coining home in State of U.P. v. Manbodhan Lal Srivastava. a Constitution Bench of this Court specifically held that where consultation with (he Public Service Commission is provided as required by Article 320(3)(c) of the Constitution such provision is not mandatory and they do not conifer any rights on public servants so that the absence of consultation or irregularity in consultation does not afford him a cause of action in a court: of law. There are number of subsequent decisions to which our attention was called reiterating the same principle. Therefore assuming there was failure 10 consult the Union Public Service Commission before exercising the power to relax the mandatory quota rule, and further assuming that the posts in Integrated Grades II and III were within the purview of the Union Public Service Commission and accepting for the time being that the Commission was not consulted before the power to relax the rule was exercised yet the notion taken would not be vitiated nor would it furnish any held to Union of India which itself cannot take any advantage of its failure to consult with the Commission. Therefore, it can be safely stated that the enormous departure from the quora rule year after year permits an interference that the departure was in exercise of the power of relaxing the quota rule conferred on the controlling authority. Once there is power to relax the mandatory quota rule, the appointments made in excess of the quota from any given source would not be illegal or invalid but would be valid and legal as held by this Court in N.K. Chauhan v. State of Gujarat, . Therefore the promotion of the promotees was regular and legal both on account of the fact that it was made to meet the exigencies of service in relaxation of the mandatory quota rule and to substantive vacancies in service."
The other aspect requires consideration is that even though Section 16-G(3)(a) employs the word "may be" whether the same is to be construed as mandatory or merely directory in nature. It is further to be understood that in case if the word "may be" is to be construed as directly only then what would be the effect where prior approval is not obtained and order of termination is passed. The Supreme Court in the matter of State of Andhra Pradesh and Anr. v. Dr. Rahimuddin Kamal, had held that the word "shall" is not mandatory' and non-consultation with the Vigilance Commission does not render the order of removal illegal. The view is Contained in paragraph 10 of the judgement and rule itself has been quoted in paragraph 8 of the judgement, which are as follows:-
"8, The relevant portion of clause (2) of Rule 4 of DPT Rules reads thus : -
"4(2)- ...But before taking a decision, the Government shall consult the Andhra Pradesh Vigilance Department."
10. The word "shall" appearing in Clause (2) of Rule 4 set out herein above, therefore, in our opinion, is not mandatory and consequently non consultation with the Andhra Pradesh Vigilance, Commission would not render the order of removal of the respondent passed on 23rd September. 1977 illegal."
The Supreme Court in Punjab Beverages Pvt. Ltd. Chandigarh v. Suresh Chand and Anr., . has clearly held that mere contravention of Section 33 of the Industrial, Dispute Act will not entitled the workman to an order of reinstatement. Contravention of Section 33 does not render the order of discharge or dismissal, void or inoperative, and the workman cannot be presumed to have continue in service. The relevant paragraphs-11, 12, 13, 15 and 16 are as under: -
"11. It will, therefore, be seen that the first issue which is required to be decided in a complaint filed by an aggrieved workman under Section 33A is whether the order of discharge or dismissal made by the employer is in contravention of Section 33. The foundation of the complaint under Section 33-A is contravention of Section 33 and if the workman is unable to show that the employer has contravened Section 33 in making the order of discharge or dismissal the complaint would be liable to be rejected. But if the contravention of Section 33 is established, the next question would be whether the order of discharge or dismissal passed by the employer is justified on merits The Tribunal would have to go into this question and decide whether, on the merits, the order of discharge or dismissal passed by the employer is justified and if ft is, the Tribunal would sustain the order. treating the breach of Section 33 as a, mere technical breach Since, in such a case the original order of discharge or dismissal would stand justified, it would not be open to the Tribunal, unless there are compelling circumstances, to make any substantial order of compensation in favour of the workman. In fact in Equitable Coal Co.'s case an order of compensation made by the Tribunal in favour of the workman was reserved by this Court The Tribunal would have to consider all the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the circumstances of the case. But this much is clear that mere contravention of Section 33 by the employer will not entitle the workman to an order of reinstatement, because inquiry under Section 33A is not confined only to the determination of the question as to whether the employer has contravened Section 33. but even if such contravention is proved, the Tribunal has to go further and deal also with the merits of the order of discharge or dismissal.
12. Now, if the. effect of contravention of Section 33 were to make the order of discharge or dismissal void and inoperative, the workman would straightway be entitled to an order of reinstatement as soon as he, establishes in the complaint made by him under Section 33A that the employer has contravened Section 33 in making the order of discharge or dismissal. There would be ho need to go into the further question whether the order of discharge or dismissal is justified on the merits. It is difficult to imagine how the law can permit an order of discharge or dismissal, which is void and inoperative to be justified on the merits. There can be no question of justification on merits of an order of discharge or dismissal, which is found to be null and (sic). The very fact that even after the contravention of Section 33 is proved, the Tribunal is required to go into the further question whether the order of discharge or dismissal passed by the employer is justified on the I merits, clearly indicates that the order of discharge is not rendered void and inoperative by such contravention. It is interesting to note that Gajendragadkar, J., speaking on behalf of the Court in Equitable Coal Co. case , characterised the breach of Section 33 as a technical breach not having any invalidating consequence on the order of discharge or dismissal. If the scope of the inquiry under Section 33A is what it has been held to be in the decisions in Automobile Products of India , Equitable Coal Co., and the Punjab National Bank leases , the conclusion must inevitably follow that the contravention of Section 33 does not render the order of discharge or dismissal void and of no effect.
13. It is also significant to note that if the contravention of Section 33 were construed as having an invalidating effect on the order of discharge or dismissed. Section 33A: would be rendered meaningless and futile because in that event, the workman would invariably prefer to make an application under Section 33C(2) for determination and payment of the wages due to him on the basis that he continues to be in service. if the workman files a complaint under Section 33A. he would not be entitled to succeed merely by showing that there is contravention of Section 33 and the question whether the order of discharge or dismissal is justified on the merits would be gone into by the Tribunal and if, on the merits, it is found to be justified, it would be sustained as valid despite contravention of Section 33, but if, on the other hand, instead of proceeding under Section 33A, he makes an; application under Section 33C(2). it would be enough for him to show contravention of Section 33 and he would then be entitled to claim wages on the basis that he continues in service. Another consequence which would arise on this interpretation would be that if the workman files a complaint under Section 33A, the employer would have an opportunity of justifying the order of discharge or dismissal crime-Fits, but if the workman proceeds under Section 33C(2), the employer would have no such opportunity. Whether the employer should be able to justify the order of discharge or dismissal on merits would depend upon what remedy is pursued by the workman, whether under Section 33A or under Section 33C(2). Such a highly anomalous result could never have been intended by the legislature. If such an interpretation were accepted, no workman would file a complaint under Section 33A, but he would always proceed under Section 33C(2) and Section 33A would be reduced to futility. It is. therefore, impossible to accept the argument that the contravention of Section 33 renders the order of discharge or dismissal void and inoperative and if that be so, the only remedy available to the workman for challenging the order of discharge or dismissal is that provided that Section 33A, apart of course from the remedy under Section 10, and he cannot maintain an application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service. The workman can proceed under Section 33C(2) only alter the Tribunal has adjudicated, on a complaint under Section 33A or on a reference under Section 10, that the order of discharge or dismissal passed by the employer was not justified and has set aside that order and reinstated the workman.
15. We may now refer to one last contention urged on behalf of the workman. That contention was that the present case was not one; in which no application for approval was made by the appellant to the Industrial Tribunal and there was thus contravention of Section 33(2)(b), but an application for approval was made under Section 33(2)(b) and his application did not result in grant of approval since it was withdrawn. It was argued that this was tantamount to refusal or approval and the ban imposed by Section 33(2)(b), therefore, continued to operate and the order of dismissal passed by the appellant was void and inoperative. This contention of the workman is in our opinion, without force, for it equates, in our opinion, erroneously the withdrawal of the application under Section 33(2)(b) with its dismissal on merits, Where the Tribunal entertains an application for approval under Section 33(2)(b) on merits, it applies its mind and considers whether the dismissal of the workman amounts to victimisation or unfair labour practice and whether a prima facie case has been made out by the employer for the dismissal of the workman. If the Tribunal finds that either no prima facie case has been made out or there is victimisation or unfair labour practice, it would refuse to grant approval and reject the application on merits. Then of course the dismissal of the workman would be void and inoperative, but that would be because the Tribunal having held that no prima facie case has been made out by the employer or there is victimisation or unfair labour practice, it has refused to lift the ban. Where, however, the application for approval under Section 33(2)(b) is withdrawn by the employer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal, The Tribunal having had no occasion to consider the application on merits, there can be no question of the Tribunal refusing approval to the employer. It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban. The withdrawal of the application for approval stands on the same footing as if no application under Section 33(2)(b) has been made at all.
16. We accordingly hold that the appellant contravened Section 33(2)(b) in dismissing the workman in both the appeals but such contravention did not have the effect of rendering the orders of dismissal void and inoperative and hence the workmen were not entitled to maintain the applications for determination and payment of wages under Section 33C(2). But since we are exercising our extraordinary jurisdiction under Article 136, we are not bound to set aside the orders of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rupees 6262.80 to the workmen unless the justice of the case so requires. We think that the demands of social justice are paramount while dealing with industrial disputes and. therefore, even though the Labour Court was not right in allowing these applications, we do not think we should exercise our overriding jurisdiction under Article 136 to set aside the orders of the Labour Court directing the appellant to pay the respective sums of Rs. 6485.48 and Rs. 6262.80 to the workmen. We do not, therefore, interfere with this part of the orders of the Labour Court, and the amounts ordered to be paid by the Labour Court maybe treated as compensation instead of wages. The amounts which have already been paid by the appellant to the workmen pursuant to the orders of the Labour Court or in compliance with the directions given by this Court during the pendency of these appeals, will be adjusted against the amounts ordered to be paid to the workmen. We may make it clear that this order shall not be construed as precluding the workmen from pursuing the remedy under Section 33A. or Section 10. Since at the time of grant of special leave in these appeals it was made a condition by this Court that the appellant should in any event pay the costs of the workmen, we direct that, though the appellant has succeeded, the appellant will pay the costs of these appeals to the workmen. We are told that such costs have already been paid by the appellant to the workmen."
The Supreme Court in (State of U.P. v. Manbodhan Lal Srivastava has held that consultation with Public Service Commission in disciplinary matters does not make the advice binding on the Government. Non-consultation cannot have the effect of nullifyins the final orders passed by the Government and mere non-consultation by the Government does not afford the public servant a cause of action to maintain a petition under Article 226 of the Constitution of India. The Supreme Court in Manbodhan Lal Srivastava (supra) in paragraphs-4, 8, 10, 12 and 13 has observed as under-
"4. Hence, the main question in controversy in appeal No. 27 of 1955, is whether the High Court was right in taking the view that Article 311 was subject to the provisions of Article 320(3)(c) of the Constitution, which mere mandatory, and as such, non-compliance with those provisions in the instant case, was fatal to the proceedings ending with the order passed by the Government on September 12, 1953.
8. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those masters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it hot by way of a mere formality but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed.
If the opinion of the Commission! were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Article 320(3)(c) could have the effect of nullifying the final order passed by the Government.
10. The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320(3)(c)? It does not, either in express terms or by implication provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government.
This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Article 320 is mandatory. The question whether a certain provision in a statute imposing a duty on a public body or authority was mandatory or only directly, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Rly. Co. v. Normandin, 1917 A.C. 170 (B).
In that case the question mooted was whether the omission to revise the jury lists as directed by the statute, had the effect of nullifying the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the jury lists, will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment:
"...The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The king Emperor, 1945 F C R 99: (AIR 1945 FC 67) (c). In that case, the Federal Court had to consider the effect of non-compliance with the provisions of Section 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial power or of enhanced magisterial powers, etc. The Court repelled the contention that the provisions of Section 256, aforesaid, were mandatory it was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, were very emphatic and of a prohibitory character.
12. We have already indicated that Article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High, Court under Article 226 of the Constitution or of this Court under Article 32. It is not a right which could be recognised and enforced by writ.
On the other hand, Article 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law. Hence, if the I provisions of Article 311, have been complied with in this case- and it has not been contended at any stage that they had hot been complied with- he has no remedy against any irregularity that the State Government may have committed.
Unless, it can be held, and we are not prepared to hold, that Article 320(3)(c) is in the nature of a rider or proviso to Article 311, it is not possible to construe Article 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.
13. In view of these considerations, it must be held that the provisions of Article 320(3)(c) are not mandatory and that non-compliance with those provisions, does! not afford a cause of action to the respondent in a Court of law. It is not for this Court further to consider what other remedy, if any, the respondent has. Appeal No. 27 is, therefore, allowed and appeal No. 28 dismissed. In view of the fact that the appellant did not strictly comply! with the terras of Article 320(3)(c) of the Constitution, we direct that each party bear its own costs throughout."
The aforesaid observations of the Supreme Court in different matters relating to service jurisprudence lead to an irresistible conclusion that Wherever prior approval or prior consultation is required in the matter of termination/dismissal/ removal/ disciplinary action, the same is merely to be treated as directory in nature and not mandatory in nature, moreover mere non-compliance of such a kind of provision does not render the order/ direction of removal inoperative or ineffective. The said order as against the concerned teacher is effective and particularly in the present circumstances when the said order of termination has not been expressly challenged by any means.
Learned Counsel for Smt. Alka Devi submitted that in these circumstances, Smt. Vijay Tandon cannot be treated to be the senior most teacher as her services stood terminated w.e.f. 07.03.1983 and consequent her termination Smt. Alka Devi being the senior most teacher fulfilled all the necessary conditions for being appointed as Principal of the Vidyalaya was rightly appointed on ad-hoc basis.
22. In respect of scope of regularisation under Section 33A(1-A) of Board Act, 1982, the learned Counsel for the petitioner (Smt. Alka Devi) has placed reliance on the decision of (Munishwar Dutt Pandey v. Ramjeet Tiwari and Ors.) and (Kiran Gupta and Ors. v. State of U.P. and Ors.) .
In Munishwar Dutt Pandey (supra) the Supreme Court was to deal with some similar questions as involved in the present matter The Supreme Court interpreted the provisions of the amended 'Act, 1991' and declared the law in favour of the ad-hoc Principal fulfilling the requirement of Section 33A (1-A) and further holding the issuance of advertisement and all proceedings consequential thereto as null and void. In Munishwar Dutt Pandey (supra) the Supreme Court in paragraphs- 7, 14, 15, 16, 19 and 22 has observed as under: -
"7. In view of these rival contentions the following points arise for our detennination:
(1) Whether the writ petitioner is entitled to get the benefit of deemed rrgularisation of his ad hoc promotion as Principal of the College under Section 33-A (1-A) of the Act.
(2) Whether the writ petitioner's appointment by way of promotion was under Section 18 of the Act.
(3) Whether the writ petitioner's appointment by way of promotion as ad hoc Principal of the College was effective from 1-7-1988 as contended by the writ petitioner or from 29-10-1988 as submitted by learned counsel for the contesting respondent.
For the reasons which we will indicate presently our answers to the aforesaid points for determination are as under:
Point No. 1 - In the affirmative.
Point No. 2- In the negative.
Point No. 3- The writ petitioner's appointment by way of ad hoc promotion as Principal became effect from 1-7-1988 and not only from 29-10-1988."
"14. Learned counsel for the contesting respondent submitted that the First Removal of Difficulties Order or for that matter the second one will have to be appreciated in the light of the preambles concerned which resulted into these Orders. It is of course true that these preambles pointed out that a number of vacancies were existing by the time the Act came into force or for that matter even at the time when the Ordinance preceding the Act was promulgated and it was likely that some time would be taken before the machinery for filling up of these posts by selection would become fully operative and that there were a number of vacancies in the posts of teachers in various institutions recognised under the Intermediate Education Act, 1921 and the delay in filling up these vacancies through the selection machinery envisaged by the Ordinance and the Act would cause difficulties. It is also true. that para 2 of the First Order of 31-7-1981, clearly laid down that the management of the institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in connection with a substantive vacancy existing on the date of the commencement, of the Order caused by death, retirement, resignation or otherwise as provided by clause (a) of para 2 of the First Order of 1981 while clauses (b) and (c) thereof dealt with leave vacancies which might have existed and might have continued up to a period exceeding two months on the date of such commencement of such leave vacancies or substantive vacancies might have come into existence within a period of two moths subsequent to the date of commencement These provisions had a direct nexus with the date of commencement of the Order, namely, 31-7-1981. Consequently it could have been said with some emphasis that substantive vacancy of a Principal with which we are concerned should have either existed tin the date of commencement of First Order, i.e., 31-7-1981 or at latest within two months thereafter and such a vacancy could be filled up by the management by promotion as per para 2. However the said para 2 concerned substantive vacancy underwent a sea change by the subsequent order, that is, the Second Order dated 11-9-1981. As we have seen earlier the said substituted para 2 has no nexus to any existing vacancy on the date of commencement of the Order or to a vacancy arising only within a period of two months thereafter. On the contrary it operates in future and takes in its sweep all substantive vacancies caused in future by death, retirement, resignation: or otherwise of a teacher which could be filled up by the management by promotion on purely ad hoc basis. It is of course true that the amended para 2 of the First Order as substituted by the Second Removal of Difficulties Order talks of the vacancies caused by death, retirement etc. But that does not necessarily mean that they should have been caused by the time the Second Order came into force. Such an intention of the Order-waking authority-is contra-indicated by the excess terminology of the substituted para 2 as distinguished from the earlier existing para 2 (a) in the Order of 31-7-1981 which had clearly linked such substantive vacancies with the date of commencement of the First Order. Consequently, on the express language of substituted para 2 of the First Removal of Difficulties Order by the Second Order it is not possible to agree with the contention of learned counsel for the contesting respondent that even the substituted para 2 of the First Order by the Second Order would still limit the substantive vacancies only to the date of the commencement of even the Second Order. Such an interpretation would fly in the face of the express language employed by the Order-making authority in the substituted para 2 of the First Order. It is now well settled that the preamble of a statutory instrument cannot control the express clear language and sweep of the operating provisions of such an instrument. Nor can the express language of a statutory provision be curtailed or read down in the light of the preamble in the absence of any ambiguity in the enacted provision. In this connection we may refer to a decision of a two-member Bench of this Court in the case of Rashtriya Mill Mazdoor Sahgh v. National Textile Corpn. (South Maharashtra.) Ltd. [ S.C. Agrawal, J. speaking for the Court relying on earlier decisions of this Court has observed (in Scale para .10) as under: (SCC p. 321. para 10) "...It is one of the cardinal principles of the statutory construction that where the language of an Act is clear, the preamble cannot be invoked to curtail or restrict the scope of the enactment and only where the object or meaning of an enactment is not clear the preamble may be resorted to explain it. [See: Burrakur Coal Co. Ltd. v. Union of India, {} and Motipur Zamindary Co. (P) Ltd. v. State of Bihar, {]".
Learned Counsel for the contesting respondent, however, invited our attention to the following judgements of this Court:
1. State of Karnataka v. Ranganatha Reddy, .
2. Secy., Regional Transport Authority v. D.P. Sharma, 1989 Supp. (1) SCC 407.
3. Kesavananda Bharati v. State of Kerala, (1913) 4 SCC 225.
4. Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591.
There cannot be any dispute in. connection with the settled legal position that when the provisions of the statute are not clear preamble can be looked at to find out the real object of enactment. But in the present case as we have seen earlier whatever the preamble might have said a clear district intention to the contrary is seen from substituted para 2 by the Second Removal of Difficulties Order. It must, therefore, be held that the Order-making authority had tried to go beyond the scope of the preamble while enacting the substituted para 2 when the earlier para 2 of the First Order ran parallel to the preamble. Even otherwise as held by this Court in the case of Prahhat Kumar Sharma v. State of U.P. the Removal of Difficulties Order has a permanent operational effect and would necessarily, therefore, cover all future vacancies after 1981."
"15. In view of the aforesaid settled legal position, therefore, it must be held that para 2 as substituted by the Second Removal of Difficulties. Order would take in its sweep even future substantive vacancies of teachers including Principals Which might be caused on account of contingencies contemplated thereunder and the said Order would continue to operate till it was rescinded. In this connection it is profitable to have a look at Section 33 of the Act under which these Orders have been enacted. As seen earlier the said section provides that the State Government may, for the purpose of removing any difficulty, by a notified order, direct that the provisions of this Act shall, during such period as may be specified in the order, have effect subject to such adaptations. whether by way of notification, addition or omission, as it may deem to be necessary or expedient. Consequently the State Government would have provided the period during which such an order could operate. But such a provision is not found in these orders limiting their period of operation. It is of course true that the proviso to Section 33 had laid down that such orders could not be made beyond two years of the coming into force of the Act. But as both the aforesaid Orders were enacted within that, time they had to operate on their own once their duration of operation was not laid down by the Order-making authority in its wisdom. In fact this question is concluded by the decision of this Court in Prabhat Kumar Sharma (supra). In the said decision a Bench of two learned Judges of this Court speaking through K. Ramaswamy, J. in its order has laid down that the Removal of Difficulties Order is a permanent one and not transient as contended for. For arriving at that conclusion the Bench had referred to, with approval, the decision of a Full Bench of the Allahabad High Court in the case of Radha Raizada v. Committee of Management, Vidyawati Darbari Girls' College [(1994) 3 UPLBEC 1551]. Once these Removal of Difficulties Order of 1981 are held to be permanent nature and would, therefore, operate to cover, future vacancies also, it is not possible to agree with the contention of learned counsel for the contesting respondent that these Orders could not cover in their sweep the vacancy of the Principal of the College in question which arose from 3-7-1988 on superannuation of the then Principal Shri Misra. Consequently the preliminary objection raised by learned counsel for the contesting respondent stands rejected."
"16. Now is the time for us to revert to the consideration of the question whether Section 33-A (1-A) would apply in the case, of the writ petitioner. So far as the first condition for its applicability is concerned it cannot be disputed that the writ! petitioner was appointed by promotion on ad hoc basis against substantive vacancy of the Principal as the then Principal Shri Misra retired on 30.6.1988. We will revert to the controversy whether the writ petitioner's appointment by promotion on ad hoc basis was with effect from 1-7-1988 or from 29-10-1988 a little later when we will deal with Point No. 2. For the time being it is sufficient to note that much before the coming into operation of Section 33-A(1-A) the writ petitioner was promoted on ad hoc basis as Principal of the College against the substantive vacancy caused by the superannuation of the then Principal. When we turn to the second condition for applicability of Section 33-A (1-A) it has to be seen whether such promotion of the writ petitioner was in accordance with para 2 of the 1981 Order as amended from time to time. As we have observed earlier, para 2 of the First Order of 1981 as it was couched in the then existing form might have curtailed the filling up of such vacancy withreference to only the then existing vacancy on the commencement of the Order or as existing within two months thereafter but that restriction has been temoved by the Order-making authority in its wisdom by wholly substituting para 2 by the Second (Amendment) Order as we have seen above. A mere look at that provision shows that it has no nexus with the then existing vacancies and would cover even future substantive vacancies. However the Division Bench of the High Court has held against the writ petitioner on the ground that the writ petitioner's ad hoc promotion on this substantive vacancy was as per para 4 and not para 2 of the First Order as amended by the Second Order. When we keep para 2 as substituted by the Second Order in juxtaposition with para 4 of the First Order which had remained unamended and untouched by the Second (Amendment) Order we find that both operate on the same field. Para 2 as amended stated that the management may appoint by way of promotion a teacher on purely ad hoc basis in accordance with the provisions of the Order in case of substantive vacancy caused, amongst others, by retirement of the outgoing teacher. As "teacher" includes Principal as provided by Section 2(k) of the Act the thrust of the amended para 2 would read that a substantive vacancy of Principal also can be filled up by the management by promotion of a teacher on purely ad hoc basis. But while filling up such vacancy by promotion on ad hoc basis the procedure laid down by the Order has to be kept in view: Para 4 of the Order lays down the procedure and gives the guidelines as to how the vacancy of the head of the institution, i.e., the Principal as earmarked by para 4 has to be filled in. Para 2 specifies the vacancy and para 4 deals with the procedure for filling up such a vacancy. When we turn to para 4 we find that ad hoc appointment by promotion in the post of head of the institution has to be made only by appointing the senior most teacher of the institution. It is not as if para 4 operates independently of para 2 as para 2 in its sweep covers substantive vacancies of all teachers who might have died or retired or resigned or might have gone out otherwise. But while coming to the head of the institution special procedure has been provided in para 4 and to that extent para 4 is a proviso to para 2 or is complementary to it and both operate in the same field when the question of filling up of a substantive vacancy of a Principal who is head of the institution, arises for the management which has to fill up such a vacancy on ad hoc oasis by appointing the senior most teacher of the institution in the lecturer's grade. With respect the Division Bench of the High Court erred in taking the view that para 4 would operate independently of para 2 or has no nexus with para 2. In fact paras 2 and 4 will have to be read together as the terminology employed in para 2 enjoining the institution to appoint by promotion a teacher on purely ad hoc basis in accordance with the provisions of this Order which would necessarily bring in the sweep of para 2 the procedure laid down by para 4 and the guidelines contained therein in connection with the filling up of the vacancies of teachers who were heading the institutions and who might have died, retired or resigned or might have gone, otherwise, out of office as laid down by para 2. It must, therefore, be held that the appointment of the writ petitioner by promotion on ad hoc basis on the post of Principal when a substantive vacancy was caused on account of the retirement of the erstwhile Principal got squarely covered by para 2 read with para 4 of the Order and it could not be said, therefore, that the second condition for applicability of Section 33-A (1-A) was not fulfilled in the present case as erroneously held in judgment under appeal. The second condition for applicability of Section 33-A (1-A), therefore, is also complied with in the present case by the writ petitioner. So far as the third condition is concerned there is no dispute that the writ petitioner possessed all the qualifications prescribed under the Act of 1921 for filling up the said post. So far as the fourth and fifth conditions are concerned they are also fulfilled by the writ . petitioner as he claims regularisation from the date of commencement of the Amending Act of 1991, that is, with effect from 6-4-1991 and till date he had worked as promotee Principal on ad hoc basis continuously from the date of his initial entry as a promotee ad hoc Principal of the College. Thus all the five conditions for applicability of Sections 33-A (1-A) were fulfilled by the writ petitioner. It must, therefore, be held that he became a regularised Principal of the College with effect from 6-4-1991 and had to be treated to be on probation on the said post of Principal from 6-4-1991 as laid down by Sections 33-A (1-A) and 33-A (2) of the Act. Once this conclusion is reached the subsequent interviews for filling up the post of Principal as held on 15-4-1991 and the recommendation of Selection Committee on 3-5-1991 would become redundant and otiose as such a recommendation would be to a post which no longer existed for being filled in by direct Selection. In fact the vacancy on the post of Principal of this College ceased to exist on and from 6-4-1991. Consequently all the subsequent exercises of course in ignorance of the aforesaid statutory provisions and the (sic)eming effect thereof would pale into insignificance and would be otiose with the result that whoever emerged successful in the selection process would have no post to (all back upon or to occupy The first point for determination is accordingly answered in the affirmative."
"19. Faced with the aforesaid difficulty learned counsel for the contesting respondent submitted that Section 18 which is the parent provision must operate and cover the field of vacancies which may come into existence after the commencement of the Act and para 2 of the Order being an act (sic piece) of subordinate legislation, must yield to parent provisions of Section 18. As a general proposition of law there cannot be any dispute on this aspect. In the written submissions on behalf of the contesting respondent it has been pointed out by referring to a decision of this Court in the case of Ramesh Birch v. Union of India [1989 Supp (1) SCC 430] that subordinate legislation cannot be in conflict with or repugnant to the parent provision. We fail to appreciate how this submission can be of any avail to the contesting respondent. He will be right in this contention if it is shown that para 2 of the Order is repugnant to Section 18. It is of course true that both of them deal with the same topic, namely, "Adhoc appointment of teachers in an institution governed by the Act" But a mere look at Section 33 shows that the legislature in its wisdom has provided that the Order-making authority may in case of difficulties remove the same by notified order Once that happens the Order itself has the effect of modifying or even omitting the existing provisions of the Act for the period specified in the Order. As there is no specification of any period of life for the Order and as held by this Court it operates on a permanent basis, when the Order operates the provisions of the Act which may be covering the filed will themselves get modified or altered or even omitted. That exercise is permitted by the parent legislation itself by enacting Section 33 the vires of which are not in dispute before us. Even that apart Sub-section (2) of Section 33 itself provides that such an order has to be laid before both the Houses of me State Legislature. So it would get the sanction of the parent legislature itself. As we have seen earlier Section 16 of the Act which deals with "appointments to be made only on recommendations of the Commission or the Board" is expressly made subject to Sections 33 and 33A, amongst others. These provisions are in the parent Act itself and consequently Section 33A which is a part and parcel of the parent provision has to operate of its own and there cannot be inconsistency or incongruity between the two provisions of the same Act, namely, Section 18 on the one hand and Section 33A including Section 33-A (1-A)on the other."
"22. As a result of the aforesaid discussion it must be held that the Division Bench of the High Court with respect was in error when it upset the decision of the learned Single Judge who had held in favour of the writ petitioner. It must be held that the writ petitioner was regularised by the deeming provision of Section 33-A (1-A) as Principal of the College with effect from 6-4-1991 and the contesting respondent, therefore, could not be appointed to the said post pursuant to the selection process which became abortive and inoperative in law as there was in fact no vacancy of the Principal which could be tilled up by any selection process undertaken after 6-4-1991 so far as the College managed by the 4th respondent is concerned."
In Kiran Guput and Ors. (supra) the Supreme Court was considering the validity of Section 9, 10 and 11 of the U.P. Secondary Education and Services Commission Act as well as the validity of Rule 12 of the U.P. Secondary Education Services Commission (Amendment) Rules, 1995, and was also dealing with a question regarding the process of selection pursuant to the advertisement properly issued by the commission, however, the Supreme Court never dealt with the process of regularisation which is the question involved in the case of the petitioner (Smt. Alka Devi). The question involved in the case of Smt. Alka Devi is about interpretation of Section 33-A (1-A). which was not considered by the Supreme Court in Kiran Gupta (supra). The Supreme Court in Kiran Gupta (supra) had left the question open and directed the authority concerned to examine the claim of the petitioners therein based upon Section 33-A (1-A) and to pass appropriate orders on such claims within three months from the date of receipt of the representation. In Kiran Gupta (supra) the Supreme Court in paragraphs 43, 44 and 45 has observed as under: -
"43. We are left with the last contention of the appellants that their claim for regularisation in the posts in which they have been working as ad hoc Principals/ Headmasters, may be ordered Indeed, their contention is that they stood regularised under Section 33-A (1-A) of Act(sic) of 1982 as amended in 1991 read with Sections 33-C (1 )(a)(ii) and (c). The High Court took the view that then claims must have been settled under Sub-section (1-A) of Section 33-A of Act 5 of 1982 long before the cut-off date (6-4-1991). It was observed that if any dispute with regard to any individual claim under the said provision is pending before the authority, such claim might be considered. With regard to the claim based on Section 33-C (1)(a)(ii), on the basis that some of them were appointed prior to 7-8-1993 and therefore they are entitled to be regularised, the High Court opined that the provisions of Section 33-C came into force on 20-4-1998 long after the vacancies were notified to the Commission and in respect of which the selection had already been completed by that date, therefore, in view of Sub-section (6) of Section 33-C their claim did not survive."
"44. It will be apt to quote the said provisions here:
"33-A. Regularisation of certain appointments.-- (I) * * * (1-A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.
* * * 33-C (1) Any teacher who,--
(a)(i) * * *
(ii) was appointed by promotion on or alter 31-7-1988 but not later than 6-8-1993 on ad hoc basis against a substantive vacancy in the post of a Principal or Headmaster in accordance with Section 18;
(b) * * *
(c) has been continuously serving the institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Ordinance, 1997;
(d) * * * shall be given substantive appointment by the management. (2)-(5) * * *
(6) Nothing in this section shall be construed to entitle any teacher to substantive appointment, ifon the date of commencement of the Ordinance referred to in clause (c) of Sub-section (2) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act"."
"45. Insofar as the claim based on Section 33-A (1-A) is concerned, a perusal of Sub-section (1-A) of Section 33-A discloses that to attract the provisions of this Sub-section the teacher which includes Principal/ Headmaster should fulfil the following conditions:
(i) he must have been appointed on ad hoc basis against a substantive vacancy;
(ii) his appointment should have been made in accordance with para 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from tune to time;
(iii) he must possess the qualification prescribed under the provisions of the Act or he should be exempted under the provisions of the said Act, and
(iv) he should have been continuously serving in the institutions/ school from the date of his ad hoc appointment till the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991.
In this batch of cases as individual particulars of the appellants on these aspects are not available, the High Court, in our view, rightly observed that if any such cases are pending the same may be examined and appropriate order be passed in accordance with the terms of the said provisions. We can only add that if any of the appellants makes a claim under these provisions within three months of this judgement to the Director of Education, the same shall be considered within three months from the date of receipt of such representation and the result be communicated in writing to the candidate."
23. This Court (D.B.) in 1999 (2) ALR 342 (DB) (Dr. Avneesh Kumar and Ors. v. Director Indian Veterinary Research Institute, Izatnagar, Bareilly and Ors.) has held that when requirement of the promotion were fulfilled then there remain nothing to keep promotion in abeyance, and while keeping the order of promotion in abeyance there can be (sic) reversion and further held that the order keeping in abeyance the order of promotion was non-speaking in nature indicating no reason and keeping the order in abeyance non-approving shall tantamount the provisions of Article 14 of the Constitution. This Court (D.B.) in Dr. Avneesh Kumar and Ors. (supra) in paragraphs 26, 28, 32, 33, 35, 36 and 41 has observed as under: -
"26. When all the requirements of valid promotions were fulfilled, there remains nothing to keep the promotions of the petitioners in abeyance and the petitioners could have not been reverted. The fact that the order of reversion was later on withdrawn, itself shows that the respondents have realised their mistake in reverting the petitioners to the posts from which they were promoted. It is not a case where the promotion was non est, meaning thereby that it was without jurisdiction or Contrary to the rules. No doubt the order does not indicate as to why the promotions were kept in abeyance, resulting into reversion of the petitioners to the lower posts."
"28. As we have pointed out hereinbefore that the order did not indicate any reason for taking such an action, which has ' certainly been indicated in the Counter affidavit, but whether such a ground can by supplemented by indicating reason in the shape of affidavit or otherwise deserves to be considered."
"32. In view of the aforesaid reasons, we are of the view that any order passed, which is non-speaking in nature, even if administrative in nature, is arbitrary and violative of Article 14 of the Constitution of India. As in the instant case the impugned orders passed by the Director dated 167.1996 is non-speaking, indicating no reason, hence such an order cannot be sustained on account of arbitrariness, which is the sworn enemy of equality clause contained in Article 14 of the Constitution of India."
"33. We are of the opinion that the view of the Central Administrative Tribunal, that such an administrative order cannot be subject to judicial review, is not correct."
"35. The scope of judicial review has been well defined 0947) 2 All ER 680 which is known as Wednesbury Principles, and Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141, 154]. Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [(1947) 2 All ER 680] laid down the following principles-
"...It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretion often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably' Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority... . In another, it is taking into consideration extraneous matters It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
It was further observed-
'"...It must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body can come to. It is not what the Court considers unreasonable.... The effect of the legislation is not to set up the Court as an arbiter of the correctness of one view over another."
"36. In CCSU case [(1984) 3 All ER 935], the principles of judicial review of administrative were further summarized by Lord Diplock, as illegality, procedural impropriety and rationality. It was further observed-
"...Judicial review has, I think, developed to a stage today when, without reiteiating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call illegality' the second 'irrationality' and the third 'procedural impropriety'."
"41. In the light of the aforesaid principles if we test the present case on the scale of Article 14 of the Constitution of India, then we find that the impugned order suffers from violation of rules of audi alteram partem, unreasonableness and irrationality."
24. On the issue when a Junior High School is raised to the level of High School then Head Master of such Junior High School is not entitled to any automatic promotion to the post of Head Master in that High School on behalf of Smt. Alka Devi the reliance has been made on 1986 UPLBEC 413 (Ram Kunwar Singh v. State of U.P. and Ors.), where this Court (DB) in paragraph-8 has held as under:-
"8. The first feature which strikes us is that under the Regulations framed under the intermediate Education Act whereas there is an express provision for an automatic appointment of the Headmaster of a High School to the post of Principal upon the High School being raised to the level of an Intermediate College, subject, of course, to the Headmaster possessing a good record of service and the minimum qualifications prescribed for appointment to the post of Principal, significantly there is a conspicuous absence of any such corresponding provision for an automatic promotion of a Headmaster of Junior High School to the post of Headmaster of High School on the Junior High School being raised to the level of a High School, Regulation 4 of the Chapter II quoted above on which learned counsel based his entire argument appears in the same Chapter i.e. Chapter II in which Regulation (2) (a) quoted above, appears That being so, the acceptance of the contention of the learned counsel that the petitioner became entitled to an automatic promotion to the post of a Headmaster on the Junior High School being elevated to the status of a High School in virtue of Regulation 4 of Chapter II would be plainly repugnant to the unmistakable legislative intent disclosed by clause (2) (a) of Regulation 2 of Chapter II which clearly limits the scheme of automatic promotion only to Head Masters of a High School to the post of Principal on the High School being raised to the level of an Intermediate College. If the intention of the legislature was to confer a similar benefit on Headmasters of Junior High Schools on the latter being elevated to the status of High Schools, one should have expected a positive provision to that effect in clause (2) (a) of Regulation 2 of Chapter 11. Regulation 4 on which learned counsel placed reliance deals, in our opinion, only with the lights of permanent or temporary teachers of a Junior High School when the same is recognised as a High School and it does not deal with the status of Head Masters of Junior High Schools on the latter being elevated to the level of a High School. That subject is dealt with exhaustively and, in our opinion, exclusively by Regulation 2 of Chapter 11."
25. On the question of deemed approval learned Counsel for Smt. Alka Devi has placed reliance on (1999) 3 UPLBKC 2136 (Smt. Zaitoon Fatima v. Director of Education, U.P. Shiksha Nideshalaya, Allahabad and Ors.), where this Court (D.B.) in paragraph-6 has observed as below:-
"6. The Court is no-doubt conscious of the maxim "Quod ab-initio Non valet. In Tractu Temporis Non Convalescit," which implies that which was originally void, does not by lapse of time become valid but rule contained in the said maxim is subject to certain exceptions and one such exception is illustrated by the maxim, quod fieri non debt factum valet which means the fact cannot be altered though it should not have been done. R.V. Lord Newborough, 4 Q.B. 585 will illustrate the doctrine of factum valet. There, the question was as to the payment of salary to certain special constables whose appointments had not. been made in accordance with the requirements of the Special Constable Act, 1831 nor was there any valid order for payment of their salaries. Relying upon the doctrine of quod fieri non debet factum valet, Lush j, who decided that, as the order for payment had been acted upon, the account allowed, and the money paid, the proceedings, should not be re-opened. The appointment of the appellant herein to C.T. grade and later, to L.T. grade by promotion having been in fact acted upon, it would not be just and proper to re-open the question of validity of her appointment by promotion to C.T. grade and later, to L.T. grade after a lapse of about 23 vears. In our opinion, the order of the Regional Inspectress of Girls Schools referring the matter to the Director of Education under Section 16-F (10) is thus liable to be quashed "
26. The facts of the writ petition no 23964 of 1988 show that the petitioner (Smt. Alka Devi.), who was serving as assistant teacher, was appointed by promotion on ad hoc basis by resolution dated 28.01.1988 of management. The petitioner was also serving as officiating principal in 'Vidyalaya' since 03.07 1983 continuously. The appointment of the petitioner was also in accordance with para 2 of the First Order of 1981 as amended from time to time, which was substituted by the Second Order so as to include the future substantive vacancies also. The petitioner was in possession of the qualification prescribed under the 'Act, 1921' as there is no dispute about her educational qualification as she is M.A. B.Ed.. The petitioner has also continuously served in 'Vidyalaya' from the date of her initial appointment as ad-hoc principal till the date of commencement of the amending 'Act, 1991'. Since the petitioner fulfils all the requirement of Section 33A (1-A) of the amending 'Act, 1991", therefore, the petitioner (Smt. Alka Devi) was fully entitled to the benefit of the amending 'Act, 1991'. When the post was advertised i.e. on 11.01.1996 there was no vacancy to the post of Principal in "Vidyalaya' and all exercise undertaken for filling-up the said post were vitiated and were without jurisdiction. Under these circumstances, the entire proceedings for selection to the post of a Principal in 'Vidyalaya' and other consequential orders passed thereafter in aid to the said proceedings for selection are liable to be quashed by this Court. In view of the foregoing analysis and observations the writ petition Nos. 23968 of 1988, 34832 of 1996 and 18794 of 1999 filed on behalf of the petitioner Smt. Alka Devi arc allowed and the writ petition Nos. 1319 of 1989 and 13518 of 1990 filed by Smt. Vijai Tandon as well as writ petition No. 1249 of 1999 filed by Km. Rekha Rani Agarwal are hereby dismissed.