Allahabad High Court
Sunil Kumar Mishra vs State Of U P And 4 Others on 22 March, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:58938 A.F.R. Reserved on: 14.03.2024 Delivered on:22.03.2024 Court No. - 34 Case :- WRIT - A No. - 1247 of 2023 Petitioner :- Sunil Kumar Mishra Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Parashar Pandey, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents.
2. Petitioner who has finally retired as Lecturer from the institution of 5th respondent on 31.03.2022, has approached this Court questioning the decision of the Regional Selection Committee dated 02.05.2022 whereby his claim for regularisation as Lecturer has been rejected and so resultantly he stands denied of post retirement dues including pension.
3. Briefly stated facts of the case are that on account of one Suraj Prakash Agrawal, Lecturer (Chemistry) proceeding on long leave, the committee of management proceeded to fill up such short term vacancy by appointing petitioner as ad-hoc Lecturer on 29.10.1985. The appointment of the petitioner though came to be approved by the District Inspector of Schools (DIOS) but he was not paid any salary. Resultantly, petitioner filed a writ petition before this Court being Writ-A No.20807 of 1986 and the High Court while entertaining the petition issued a direction on 17.12.1986 to the effect that until services of the petitioner were terminated or some other candidate came and joined on recommendation of the Selection Board, petitioner shall be continued and he shall be entitled to emoluments (salary).
4. Ever since his appointment, petitioner continued to teach in the institution regularly and received salary as the sitting Lecturer Suraj Prakash Agrawal who had lien against the post, did not turn up to resume his duties. Section (1-A) came to be inserted after Section 33-A(1) of the UP Secondary Education Service Selection Board Act, 1982 (for short, 'the Act, 1982') w.e.f. 06.04.1991 taking aid of which, the services of petitioner came to be regularised and the order to this effect was passed by the DIOS on 19.05.1992. Since the services of the petitioner were regularised, the writ petition earlier filed by the petitioner being Writ Petition (A) No.20807 of 1986 was dismissed as infructuous on 11.09.2006. Petitioner was accorded with selection grade upon 12 years of continuous service after regularisation, by the order of DIOS vide order dated 22.11.2008, however, suddenly the committee of management adopted a resolution on the back of the petitioner on 22.11.2016 terminating the services of the petitioner. Petitioner represented before the DIOS against the resolution adopted by the committee of management on the ground that until prior approval of the UP Secondary Education Service Selection Board (for short, "Selection Board"), no such order could have been passed. The DIOS allowed the representation of the petitioner on 25.11.2016 holding that without approval of the Board, resolution adopted by the committee of management will be taken to be null and void.
5. The committee of management challenged the decision of the DIOS dated 25.11.2016 vide writ petition being Writ-A No.57215 of 2016 and got an interim stay order. It is also pertinent to mention here that, when the question of appointment of ad-hoc/officiating principal arose on account of post falling vacant on 30.06.2014, both the petitioner and one Ganesh Chandra Goel put up their repetitive claims on the basis of seniority to be appointed and claim of petitioner having been rejected, he filed a writ petition before this Court vide Writ-A No.52277 of 2014. While this writ petition remained pending, the DIOS passed an order accepting the claim of petitioner for being appointed as officiating principal on 28.09.2016, which came to be challenged by Ganesh Chandra Goel vide writ petition being Writ-A No.48836 of 2016. One more writ petition was filed by the petitioner as Writ Petition No.60494 of 2016 which was directed against the resolution of the committee of management dated 20.11.2016 and the consequential order dated 22.11.2016, though the same got subsequently disapproved by the DIOS on 25.11.2016.
6. All these four writ petitions came to be adjudicated by a common judgment delivered on 02.04.2019. Under this judgment, the writ petition of petitioner against Ganesh Chandra Goel as to seniority being Writ- A No.52277 of 2014 was dismissed and writ petition of Ganesh Chandra Goel, Writ-A No.48836 of 2016 was consequently allowed. The writ petition of the committee of management being No.57215 of 2016 to the above extent was also allowed. However, its writ petition directed against the order of DIOS holding resolution and the consequential action of the committee of management taken by the manager dated 20.11.2016 and 22.11.2016 respectively, was dismissed holding both the resolutions and the consequential action as unsustainable and consequently writ petition of the petitioner against the resolution and the consequential action being Writ Petition No.60494 of 2016 was allowed. The regularisation of the petitioner under sub-section (1-A) of Section 33(1) was also held to be unsustainable and accordingly, matter was remitted for the purposes of consideration of claim of petitioner for regularisation afresh.
7. Against this order, petitioner as well as committee of management both preferred intra-court appeals, total five in number, being Special Appeal Nos.743 of 2019, 744 of 2019, 745 of 2019, 595 of 2019 and 599 of 2019; respectively. The Division Bench considered the claim of petitioner for regularisation more to be maintainable under Section 33-B of the Act, 1982 and in light of judgment of the Full Bench in case of Jahaj Pal v. District Inspector of Schools & anr (Special Appeal No.280 of 2013), decided on 21.02.2019, petitioner's continuance was held to be valid one even after short-term vacancy getting converted into a substantive vacancy. Accordingly, all the appeals were dismissed subject to the modification that regularisation shall be considered in view of Section 33-B of the Act, 1982.
8. The Regional Selection Committee proceeded to examine the matter of petitioner for the purposes of regularisation afresh but rejected the claim chiefly on the ground that the post fell vacant substantively on 30.06.2006 and, therefore, claim of petitioner would not stand covered under Section 33-B which came to be enforced w.e.f. 07.08.1993 and on that date there was no substantive vacancy of Lecturer in place.
9. Learned Senior Counsel, Mr. Khare raised following two grounds of attack:
(i) lecturer Suraj Prakash Agrawal having proceeded on leave in the year 1985 and having not turned up again shall be deemed to have abandoned his employment with the institution upon expiry of period of five years, the maximum period for which extraordinary leave could have been granted and, therefore, vacancy should be taken to have substantively fallen vacant in the year 1991 much ahead of Section 33-B being incorporated under the Act 1982 being only w.e.f. 07.08.1993; and
(ii) taking into consideration the object with which various sections 33-A, 33-B, 33-B, 33-D, 33-E, 33-F and 33-G had come to be incorporated by the State continuously paving way for regularisation of the services of the ad-hoc teachers w.e.f. 1991 till 25.01.1999 when the powers of the committee of management to make ad-hoc appointments were finally taken away, it would lead to draw an inevitable conclusion that whoever was appointed and had been teaching on ad-hoc basis continuously as on 22.03.2016, would be regularised.
10. In support of his first argument, learned Senior Counsel had relied upon Fundamental Rule 18 which provides that if a government servant remains absent continuously for a period of five years or more whether with leave or without leave, such government servant would automatically cease to be in service/employment.
11. Sri Khare had further submitted that for the purposes of leave rules etc. vide Regulation 99 of Chapter III of UP Intermediate Education Act, 1921, the rules applicable to government servant had been made applicable to the teachers and employees of recognised schools and intermediate colleges under the Act, 1921 and so as per Fundamental Rule 18, Sri Agrawal would be taken to have abandoned his service for having not reported back to the institution for more than five years. In support of his contention, Sri Khare had further relied upon a division bench judgment of this Court in the case of Deputy Director of Education (Secondary) & anr v. Jyoti Yadav & anr; 2016 SCC OnLine All 3532; 2016 (4) All LJ 27, in which the Court has very categorically held that continuous absence from duty for a period of five years and above would result in automatic cession of employment without reference to any departmental inquiry whatsoever.
12. Thus, according to Mr. Khare, since Mr. Agrawal did not turn up ever to join back to resume his duties in the institution, he ought to have been taken to have abandoned his employment in the year 1991 and the Management as well as the Regional Selection Committee was not justified in holding that vacancy fell vacant in the year 2006 when Mr. Agrawal in ordinary course of employment had retired.
13. In support of his second argument, learned Senior Advocate Sri Khare had placed reliance upon a judgment of Supreme Court in the case of Kalyan Dombivali Municipal Corporation v. Sanjay Gajanan Gharat & anr; 2022 SCC OnLine SC 385; AIR 2022 SC 1618. Citing the judgment, Mr. Khare had placed emphasis upon paragraphs 31, 32 & 33 thereof to demonstrate as to how the principle of construction had been evaluated as to the interpretation of different provisions contained in an enactment. He had also relied upon the judgment of Full Bench in Jahaj Pal's case (supra).
14. Sri Khare submitted that the entire act had to be read in its entirety and the relevant provisions contained therein under various sections could not be interpreted in a compartmentalised manner. He submitted that besides the principle that an Act had to be read in its entirety for the purposes of understanding its object with which the various provisions had been incorporated but the elementary rule was to have a purposive interpretation and for that it was necessary to read various provisions of the Act harmoniously. He had argued that no word or letter in an enactment could be rendered redundant as legislature had inserted it in the Act with conscious mind and taking it to be necessary in its wisdom. According to Mr. Khare, if the clauses under various sections running from 33-A to 33-G that provided for cut-off dates for regularisation purposes were taken together then one could safely arrive at a conclusion that every appointment made on ad-hoc basis against a substantive vacancy and short-term vacancy as per the powers that were available with the management or other authority, as the case may be, teachers working between 12.06.1985 and 25.01.1998 were directed to be regularised. These cases of regularisation were covered with different cut-off dates under different sections running from Section 33-A to 33-G and according to Mr. Khare, this was indicative of a fact and law that whoever was lawfully appointed against available vacancy on a short-term basis and was having the requisite eligibility, was to be regularised, sometimes automatically and sometimes with reference to authorities including Regional Selection Committee.
15. Thus, Mr. Khare had strenuously argued that Regional Selection Committee both on the count of existence of substantive vacancy in the year 1991 and aims and object of the various sections providing for regularisation from time to time, manifestly erred in rejecting the claim of petitioner for regularisation.
16. Mr. Khare had also pressed the 3rd relief claimed in the writ petition for payment of arrears of salary in between 2016 and 2019 when his writ petitions remained pending and the interim order continued to operate against the order of DIOS in the writ petition filed by the committee of management. He submitted that he was wrongly terminated from employment and that order having been held to be bad both initially in the writ petition by Single Judge and then by the Division Bench in the appeal filed by the committee of management, petitioner upon reinstatement, was also entitled to full salary for such period.
17. Mr. Khare had further submitted that in the event writ petition succeeds against the rejection of regularization order, petitioner would be entitled to post retirement dues including pension in light of law laid down by this Court from time to time.
18. Learned Additional Chief Standing Counsel had sought to urge that in absence of any resignation letter or any order passed by the committee of management, an employee who has been a member of service, would be taken to have continued to enjoy lien against post and, therefore, if he/she proceeded on leave, such leave vacancy would be taken to be a short term vacancy until such employee attained his age of superannuation. He submitted that there had to be no order declaring the vacancy as a substantive vacancy for making regular appointment. He had further sought to argue that every section added under the Act, 1982 was as per the need of the time and must be contextually interpreted to mean that State intended to regularise the services of ad-hoc employees working against short term vacancy or substantive vacancy at the relevant point of time. He had submitted that there were other reasons also assigned in the order impugned which went on to show that neither any procedure was adopted for making appointment, nor any material was available as to the merit of petitioner vis-a-vis other candidates with reference to any selection committee, if ever held. Thus, he sought to justify the order for the reasons assigned therein.
19. Having heard learned counsel for the respective parties and their arguments raised across the bar, I find following facts to be undisputed to the parties:
(i) Sri Suraj Prakash Agrawal was working as a Lecturer in the institution against substantive vacancy as on 1985 when he proceeded on leave.
(ii) Petitioner came to be appointed against the post thus fallen vacant on account of leave granted to Sri Suraj Prakash Agrawal, treating it to be a short term vacancy.
(iii) Sri Suraj Prakash Agrawal, the Lecturer who had proceeded on leave without pay, never turned up to join back to resume his duties.
(iv) The DIOS though approved the appointment of the petitioner but he was not paid salary so he approached this Court by filing a writ petition being Writ-A No.20807 of 1986, in which, on 17.12.1986 an interim order was passed for continuance of petitioner and payment of salary. The services of the petitioner came to be regularised under Section 33-A(1-A) by the DIOS on 19.05.1992.
(v) Sri Suraj Prakash Agrawal in normal course of events would have retired only in the year 2006.
20. In view of the above, the question, therefore, arises whether petitioner could have been regularised in view of Section 33-B taking vacancy to have converted into substantive vacancy upon expiry of period of five years on the principle of deemed cession of contract of employment between Suraj Prakash Agrawal and the institution. Section 33-B(1)(a)(i) runs as under:
33-B(1) Any teacher, other than the Principal or Headmaster, who-
(a) (i) was appointed by promotion or by direct recruitment in the lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy"
(emphasis added)
21. A bare reading of the aforesaid provisions makes it clear that whoever has been appointed by way of direct recruitment in the Lecturer's Grade on or before 14.05.1991 will be considered for regularisation if such a vacancy got converted into a substantive vacancy.
22. Admittedly, petitioner was appointed prior to 14th May, 1991 and, therefore, his case stood covered if the vacancy upon which he was appointed, is taken to have converted into substantive vacancy on account of Suraj Prakash Agrawal, who had lien against the post, having not turned up to join.
23. Now, it is to be seen in light of Division Bench judgment of this Court in the case of Jyoti Yadav (supra) as to what rules of leave are; how a leave can be condoned; when it can be granted and what rules are applicable. Regulation 99 of Chapter III of the UP Intermediate Education Act, 1921 very specifically provides that in matters of leave and grant of leave and related matters, the rules as applicable to the employees of the government intermediate colleges would apply. Regulation 99 runs as under:-
99. (1) आचार्य, प्रधानाध्यापक एवं अन्य कर्मचारियों को आकस्मिक अवकाश, अर्जित अवकाश, चिकित्सा अवकाश, प्रसूति अवकाश, व्यक्तिगत कार्य अवकाश तथा असाधारण अवकाश उतनी अवधि के लिए तथा उन प्रतिबंधों के अधीन स्वीकृत किया जा सकता है जो राज्य सरकार समय समय पर राजकीय उच्चतर माध्यमिक विद्यालयों के इन्ही श्रेणी के कर्मचारियों के लिए निश्चित करे या अपने किसी विशिष्ट आदेशों द्वारा किन्ही अपवादों सहित, जो किसी विशेष परिस्थितिवश अपेक्षित हों, निर्धारित करें। आकस्मिक अवकाश आचार्य अथवा प्रधानाध्यापक के मामले में प्रबंधक द्वारा तथा अन्य कर्मचारियों के मामले में आचार्य/प्रधानाध्यापक द्वारा स्वीकृत किया जायेगा। अन्य अवकाश प्रबन्धक द्वारा (आचार्य / प्रधानाध्यापक द्वारा) प्रार्थना पत्र प्रस्तुत/अग्रासरित किये जाने पर स्वीकृत किये जायेंगे। चतुर्थ श्रेणी के कर्मचारी के सम्बन्ध में अन्य अवकाश भी आचार्य/प्रधानाध्यापक द्वारा स्वीकृत किये जायेंगे।
परंतु विशेष परिस्थिति में राज्य सरकार ऐसा अवकाश और ऐसी शर्तों पर जो वह उचित समझे, स्वीकृत कर भी सकती है।
(2) अवकाश अधिकार स्वरूप नहीं मांगा जा सकता, परिस्थिति की आवश्यकता को देखते हुए संमोदन प्रधिकारी किसी भी प्रकार का अवकाश स्वीकृत करने से इंकार कर सकता है और पहले स्वीकृत किये गये अवकाश को भी रद्द कर सकता है टिप्पणी- यदि कोई आचार्य, प्रधानाध्यापक अथवा अध्यापक, राज्य विधान मंडल या संसद का सदस्य हो तो उसे विधान मंडल, संसद अथवा उसकी समितियों की बैठकों में भाग लेने हेतु उसके द्वारा ऐसी बैठक तथा उसमें भाग लेने हेतु जाने के अपने इरादे की सूचना दिये जाने पर, उसे संस्था से अवमुक्त कर दिया जायेगा और संस्था से उनकी ऐसी अनुपस्थिति की अवधि में उसे ऐसे अवकाश पर समझा जायेगा जैसा उसे देय हो तथा जिसके लिए वह आवेदन करें। यदि उसे कोई अवकाश देय न हो तो ऐसी अनुपस्थिति की अवधि में बिना वेतन के अवकाश पर समझा जायेगा।
(emphasis added)
24. It is not disputed by learned Standing Counsel that Fundament Rule 18 as applicable to the government servants in various matters would apply to the government college teachers also as they are government employees and so these Rules would also be attracted in view of Regulation 99 to the teachers of secondary education recognised private aided institution.
25. Coming to the judgment of Division Bench of this Court in case of Jyoti Yadav (supra) , I find that this case is related to an Assistant Teacher of a recognised private institution. Interpreting provisions as contained under Rule 18 of the Fundamental Rules and quoting the same as well, the Court vide paragraphs 10, 11 & 12 held thus:
"10. Fundamental Rule 18 runs as follows:
"18. Unless the Government in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty elsewhere then on foreign service in India whether with or without leave, a government servant ceases to be in Government employee"
11. The aforementioned Fundamental Rule provides for abandonment of service/cessation of service after five years continuous absence from duty, whether with or without leave. Once five year continuous absence from duty is there, then leave or no leave will not make any difference, the abandonment of service/cessation of employment has to be accepted and prior to expiry of period of five years, if there is absence from duty, the same has to be accepted as misconduct and for the same disciplinary proceedings will have to be initiated by holding regular departmental enquiry. Here the shortcut method that has been adhered to cannot at all be subscribed by law.
12. As the above extracts from the judgment would indicate the Division Bench has proceeded to hold that if the absence is continuous and for five years or more abandonment of service and consequent cessation of employment has to be accepted. The rule clearly seems to indicate that in case of absence of five years or more, the cessation of employment is automatic and the presumption of abandonment is immediately attracted. At this stage, as the Division Bench has held, the holding of an enquiry is not necessary. Fundamental Rule 18, in the submission of the learned counsel for the appellant, would clearly be attracted to the services of the original petitioner. If the appellant be correct in this submission then and in that case the requirement of a separate provision in the service rules for automatic termination would not arise. These aspects do not appear to have been considered or taken into account by the learned Single Judge while allowing the writ petition."
(emphasis added)
26. In view of the above, therefore, the legal proposition settled is that if an employee does not proceed on leave and does not turn up to join back the institution where he has been working, beyond a period of five years, this will invite preposition of 'deemed abandonment' of employment. The result of abandonment of job by an employee having lien against post, would end his or her lien and this will automatically result in converting/creating a vacancy as a substantive vacancy.
27. Upon above legal proposition, therefore, since Sri Suraj Prakash Agrawal since did not turn up to join the post of Lecturer (Chemistry) upon which he was working on 1985 and he proceeded on leave, after expiry of five years, the post would be taken to have fallen vacant substantively by legal fiction in October, 1990 and therefore, upon incorporation of provisions contained under Section 33-B on 07.08.1993, the short-term vacancy against which petitioner in the case in hand was working since 1985, will be taken to have converted into substantive vacancy to entitle petitioner for regularisation. Thus, the contrary findings returned by the Regional Selection Committee that the post would be taken to have fallen vacant in 2006 only upon retirement of Suraj Prakash Agrawal, is absolutely unsustainable and the order deserves to be set aside on this count alone.
28. Coming to further argument about harmonious construction of various provisions incorporated under the Act, 1982 right since 1991 till the year 2016 in light of object of the State Government to regularise the services of all such employees who have been working on ad-hoc basis upon being appointed against short-term vacancy from time to time and even on substantive vacancy in accordance with law, I would like here to refer to a judgement of Five-Judge Bench of this Court in the case of Jahaj Pal (supra) where the Full Bench has observed that Section 33-G was a residuary provision to make regularisation of all such employees teachers who were appointed till 25.01.1999 or even subsequently if proceedings for selection had started prior to 25.01.1999.
29. Para 102 of the Jahaj Pal's case (supra) is quoted as under;
"102. Section 33-G in fact is a kind of residuary provision taking into consideration ad hoc appointees against short term vacancies or substantive vacancies which remained to be covered for substantive appointments under various provisions already made. Section 33-G(l)(a) says that ad hoc appointments made against short term vacancies, in accordance with procedure prescribed in Para 2 of Second Order, whether by promotion or by direct recruitment, in Lecturer or Trained Graduate Grade, and the vacancies were subsequently converted into substantive, would be considered for substantive appointment by a Selection Committee to be constituted under aforesaid provision. Section 33-G(l)(b) provided similar benefit to ad hoc appointments made against substantive vacancies in accordance with section 18 in Lecturer or Trained Graduate Grade from 7.8.1993 to 30.12.2000. All other conditions were similar as provided in earlier similar provisions, which we have already discussed."
30. Now if one examines various sections running from Section 33-A to 33-G, one would find that since prior to 1985 uptil 25.01.1999 all such ad-hoc appointments were sought to be regularised. These provisions are to the rescue of those teachers who were appointed in accordance with law against the existing vacancies for the reason that selection Board was not in a position to hold selection to enable government to make appointment regularly so as to meet the requirement. Education is heart and soul of any civilized society and it is also a function of the State to ensure that its citizens are provided with adequate means of education. Ours is a social welfare State and so State Government had rightly come to the rescue of such teachers who had been validly appointed having eligibility against existing vacancies and had continued to teach for a very long period. The intendment of legislature has been not to fire them upon vacancies getting converted into substantive vacancies from short-term vacancy. In Jahaj Pal's case (supra), the Full Bench has dealt with this aspect of the matter in detail and hold appointees against short-term vacancy were entitled to continue even upon short-term vacancies getting converted into substantive vacancies later on. Vide paragraph 207(XV), the Full Bench has held thus:
XV. The teachers, who come within the ambit of section 33-B, whether appointed on ad-hoc basis against substantive vacancies or short term vacancies on and after 7.8.1993 (the date when Amendment Act 1 of 1993 came into force) would be entitled to continue till they are not considered by the Selection Committee for substantive appointment. In their cases, the term of ad-hoc appointment would not be governed either by the First Order or the Second Order, and with effect from 7.8.1993, it would be governed by sub-section (5) of section 33-B. In other. words, on and after 7.8.1993, a teacher appointed on ad-hoc basis, whether against short term vacancy or substantive vacancy, falling within the ambit of section 33-B(l) will continue to work till such date, as the State Government may by order specify, and, his tenure will not be governed either by Para 3 of the First Order or Para 3 of the Second Order, as the case may be.
31. Interestingly, the Government did not specify any date to end such appointment what it did was to end appointments made under Section 16-E(ii) in light of judgement of Supreme Court in the case of Sanjay Singh v. State of UP & ors passed in Civil Appeal No.8300 of 2016, decided on 26.08.2020 and in the process directed that all such ad-hoc appointees, who were not validly appointed and who could therefore, not be regularised shall cease to continue. In my considered view, this is not a specification of date in cases covered under the judgment in Jahaj Pal's case (supra). All these appointees did continue but they remain ad-hoc because their cases were never examined for regularisation either on the relevant date when concerned sections were incorporated, or even subsequently. So, there cannot be any presumption that there appointments were invalid.
32. Mr. Khare was right in arguing that looking to the intendment of legislature, if the harmonious construction is given to various provisions contained under Section 33-A to 33-G, one would find that purpose for which the various sections were inserted from time to time would be achieved. In Kalyan Dombivali (supra) vide paragraphs 31 to 33, the Court held thus:
31. In the case of Philips India Ltd. v. Labour Court, Madras and Others (1985) 3 SCC 103, this Court had an occasion to decide the rate of overtime wages as mentioned in Section 31 of the Tamil Nadu Shops and Establishments Act, 1947. This Court found that for finding the minimum rate of overtime wages as mentioned in Section 31 of the said Act, it will have to be interpreted in the light of the provisions contained in Section 14(1) read with proviso to Section 31 of the said Act. Coming to this conclusion, this Court observed thus:
"15. No canon of statutory construction is more firmly established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus. This rule of statutory construction is so firmly established that it is variously styled as "elementary rule" (see Attorney General v. Bastow [(1957) 1 All ER 497] ) and as a "settled rule" (see Poppatlal Shah v. State of Madras [AIR 1953 SC 274 : 1953 SCR 667] ). The only recognised exception to this well-laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. Lord Coke laid down that: "it is the most natural and genuine exposition of a statute, to construe one part of a statute by another part of the same statute, for that best expresseth meaning of the makers" (Quoted with approval in Punjab Beverages Pvt. Ltd. v. Suresh Chand [(1978) 2 SCC 144 : 1978 SCC (L&S) 165 : (1978) 3 SCR 370] )."
32. It could thus be seen that this Court has held that the Statute must be read as a whole. It has been held that this rule of statutory construction is so firmly established that it is variously styled as "elementary rule". It has been held that for finding out the true meaning of one part of a statute, a reference will have to be made to another part of the statute and that will best express meaning of the makers.
33. In the case of Sultana Begum v. Prem Chand Jain (1997) 1 SCC 373, this Court was considering the question regarding the conflict between Section 47 of the Code of Civil Procedure, 1908 and Order XXI Rule 2 thereof. This Court held that applying the rule of harmonious construction, the so-called conflict between the said two provisions had been dispelled. Observing so, this Court reiterated the following well settled principles of interpretation of statutes:"
15. On a conspectus of the case law indicated above, the following principles are clearly discernible:
(1) It is the duty of the courts to avoid a head on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.
(2) The provisions of one section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them.
(3) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of "harmonious construction".
(4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction.
(5) To harmonise is not to destroy any statutory provision or to render it otiose."
(emphasis added)
33. The rule of harmonious construction of various provisions contained under Sections 33-A to 33-G leads me to conclude that no Assistant Teacher who has been working upon being validly appointed against a short-term vacancy would be thrown out of job upon vacancy getting converted into substantive on the ground that his claim could not be considered at relevant time and now time has run out. Each and every appointment has to be examined vis-a-vis vacancy upon which it had been made at relevant point of time and status of vacancy subsequently and so long as sections for regularisation from 33-A to 33-G are not repealed and remain on statute book, all such cases of regularisation would be given positive consideration, as last of such appointments made as on 25.01.1999 are sought to be regularised and thereafter no such power vested in the appointing authority to make ad-hoc appointments.
34. The Full Bench did not proceed further to make any observation to explain scope of various sections incorporated for regularisation 33-B, 33-E, 33-F and 33-G. The question, therefore, arises as to whether an Assistant Teacher can be rendered remediless who has continued in a short-term vacancy even after getting converted into a substantive vacancy.
35. When the legislature intended not to throw a teacher from his job who has been working against short-term vacancy, merely because State authorities have not attempted to rescue a teacher from getting fired only upon not being considered in accordance with Rules and the provisions contained under the law, such teacher cannot be denied benefit of regularisation.
36. A teacher who has spent more than three decades of service in an educational institution cannot be denied fruits of post retirement dues once he has rendered service against a vacancy which was very much in existence as a substantive vacancy and there is no finding that appointment of petitioner even while it was a short-term vacancy to be illegal or that such a teacher was not eligible to hold the post in question. Petitioner has continued lawfully until he attained age of superannuation.
37. In view of the above, writ petition succeeds and is allowed. The order passed by Regional Selection Committee dated 02.05.2022 rejecting claim of regularisation of petitioner as Lecturer is set aside.
38. Petitioner is held entitled to regularisation under Section 33-B and Regional Selection Committee is directed to pass appropriate orders. Petitioner is also held entitled to all consequential benefits including salary for the period between 2016 and 2019 and post retirement benefits in accordance with law.
39. There will be no order as to cost.
Order Date :- 22.3.2024 P Kesari