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SMT. SAROJ GOSWAMI versus STATE OF U.P. THRU' SECRY. (SECONDARY EDUCATION) AND OTHERS

High Court of Judicature at Allahabad

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Smt. Saroj Goswami v. State Of U.P. Thru' Secry. (Secondary Education) And Others - WRIT - A No. 71252 of 2006 [2007] RD-AH 8831 (9 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 39

Civil Misc. Writ Petition No.71252 of  2006

Smt. Saroj Goswami

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioner has approached this Court questioning the validity of decision dated 10.06.2006 of the Regional Committee, according seniority benefit             to Smt. Kusum Varshney since the year 1978.

Brief background of the case is that in the district of Mathura, there is recognized institution known as Nagar Palika Balika Inter College, Brindavan, Mathura. In the said institution, petitioner was initially appointed as C.T. Grade teacher on 06.02.1983 and thereafter as L.T. Grace Teacher with effect from 26.10.1983. Permanent Principal, Smt. Kamla Sharma, attained the age of superannuation on 30.06.1998, and thereafter, petitioner took over as officiating Principal on 01.07.1998, and the District Inspector of Schools on 16.02.1999 accorded approval. Thereafter one Dr. Gita Sharma was selected on the post of Principal. Her selection was challenged and the said selection has been cancelled by this Court. Thereafter, Dr. Gita Sharma challenged the validity of the order passed by this Court before Hon'ble Apex Court in Special Leave Appeal No.175 of 2004  and therein the order of status-quo had been passed. Petitioner submits that she continued to function as Principal. Respondent No. 8 was initially appointed as reserve pool teacher in the institution with effect from 10.01.1978 to 06.02.1978. Since 23.11.1990 she was not in service. Thereafter Ordinance No.12 of 1985 dated 12.06.1985 was enforced regarding reserve pool teacher, in pursuance of which respondent was again appointed and she joined on 24.11.1990 as L.T. Grade Teacher in the same institution. Respondent No. 8 had filed writ petition No.24298 of 1997, wherein this Court had asked the District Inspector of Schools to decide the matter vide its order dated 01.09.2005. In compliance of the judgment of this Court dated 01.09.2005, representation was made before the Deputy Director of Education, and the same was referred to the Regional Committee. Thereafter, Regional Committee has proceeded to pass impugned order extending the benefit of seniority since the year 1978. At this juncture, present writ petition has been filed.

Counter affidavit has been filed by the District Inspector of Schools, and therein the action taken has been sought to be justified. From the side of contesting respondent, it has been sought to be contended that purely legal plea has been raised, as such no counter affidavit shall be filed and the matter be decided finally. Consequently, present writ petition is being decided with the consent of the parties.  

Sr V.C. Mishra, Advocate, along with Ms. Ekta Kaur, Advocate, appearing for the petitioner, contended with vehemence that in the present case Regional Committee has totally transgressed and overstepped its jurisdiction by allowing seniority benefit with retrospective date from the year 1978, whereas incumbents like respondent No. 8 were entitled to appointment by virtue of being reserve pool teacher, but by no stretch of imagination, retrospective benefit of seniority could have been given, as such order passed is unsustainable and is liable to be set aside.

Learned Standing Counsel as well as Sri V.K. Singh, Senior Advocate, assisted by Sri Shashi Ranjan, Advocate, on the other hand, contended that benefit had to be extended with retrospective date, and the same has been rightly extended, as such no interference is warranted.

After respective arguments have been advanced, before proceeding to appreciate the respective clams, judgment of Hon'ble Apex Court in the case of Prabodh Verma v. State of U.P.  and others,, AIR 1985 SC 167, will have to be looked into, as the rights of the contesting respondent is to be governed as per directives given in the said judgment. Paragraphs 44 to 52 of the said judgment being relevant are quoted below:

"44. The reserve pool teachers thus formed a separate and distinct class from other applicants for the posts of teachers in recognized institutions. The differentia which distinguished the class of reserve pool teachers from the class of other applicants for the posts of teachers in recognized institutions is the service rendered by the reserve pool teachers to the State and its educational system in a time of crisis and this differentia bears a reasonable and rational nexus or relation to the object sought to be achieved by Ordinances Nos. 10 and 22 of 1978 read with the Intermediate Education Act, namely, to keep the system of High School and Intermediate Education in the State functioning smoothly without interruption so that the students may not suffer a detriment. Those two classes of persons, namely the class of reserve pool teachers and the class of other applicants for the post of teachers in the recognized institutions, are not similarly circumstanced and, therefore, there cannot be any question of giving these two classes of persons equality of opportunity in matters relating to employment guaranteed by Article 16(1) of the Constitution. Thus, neither Article 14 nor Article 16(1) of the Constitution was violated by the provisions of either U. P. Ordinance No. 10 of 1978 or U. P. Ordinance No. 22 of 1978.

45. In our opinion, the High Court was in error in holding that U. P. Ordinance No. 22 of 1978 was. void on the ground that its provisions infringed Articles 14 and 16(1) of the Constitution. If U. P. Ordinance No. 22 of 1978 was not void, equally U. P. Ordinance No. 10 of 1978 was not void on this ground. Those teachers from the reserve pool who had been appointed in pursuance of either of these two Ordinances were thus validly appointed and their services could not have been terminated on the ground that their appointments were contrary to law. The aforesaid order dated May 21, 1979, of the Government of Uttar Pradesh and the aforesaid order of the Additional Director of Education, Uttar Pradesh, dated May 29, 1979, ,addressed to all District Inspectors of Schools in Uttar Pradesh, directing that the services of those reserve pool teachers who had been appointed could not be continued and that no weightage should be given to the reserve pool teachers in making future appointments were, therefore, bad in law. Consequently, the termination of the services of those reserve pool teachers who had already been appointed was also bad in law. The Sangh's case was wrongly decided by the High Court and requires to be overruled. The judgments under appeal must, therefore, be reversed and the appeals and writ petitions before us allowed.

46. The question which remains to be considered is the relief to which the reserve pool teachers are entitled. No difficulty arises in the case of those reserve pool teachers who were already appointed prior to the judgment of the High Court in the Sangh's case and whose services were thereafter terminated and who have continued to be in service by reason of the stay orders passed by the High Court or this Court. They are entitled to continue in service. They were, however, appointed on probation or a period of one year and in the ordinary course they would have been confirmed long back. No such confirmation has, however, taken place by reason of the judgment of the High Court in the Sangh's case. We have held that the Sangh's case was wrongly decided. These reserve pool teachers have, therefore, suffered by reason of a wrong judgment given by the High Court and they are entitled to have the wrong done to them rectified. It has not been alleged that any of them was or is unfit to be confirmed. In our opinion, each of them should, therefore, be deemed to be confirmed in the post to which he or she was appointed from the date on which he or she would have completed his or her period of probation in the normal and usual course.

47. Different considerations, however arise with respect to those reserve pool teachers who were not appointed to the posts which had fallen vacant. By the interim order made in the writ petitions filed to challenge the vires of U. P. Ordinance No. 10 of 1978, the operation of that Ordinance was stayed but it was directed that such stay would not affect appointments already made. A similar interim order was passed in the Sangh's petition. No appointment of any reserve pool teacher was, therefore, made during the pendency of the said interim orders or after the decision of the High Court in the Sangh's case. On behalf of these reserve pool teachers, it was submitted, that U. P. Ordinance No. 10 of 1978 was repealed by U. P. Ordinance No. 22 of 1978 and that such repeal did not affect rights which had already accrued to them and had become vested in them under U. P. Ordinance No. 10 of 1978. It was further submitted that in any event if this Court holds U. P. Ordinance No. 22 of 1978 to be valid those reserve pool teachers who bad not been appointed had also acquired a vested right to be so appointed under that Ordinance. It was stated that after the decision in the Sangh's case the Governor of Uttar Pradesh had withdrawn U. P. Ordinance No. 22 of 1978 under sub-clause (b) of clause (2) of Article 213 of the Constitution and that assuming that this Ordinance was not so withdrawn, it had ceased to operate at the expiration of the period specified in sub-clause (a) of clause (2) of Article 213 and that in either event the effect was the same as if that Ordinance had been repealed. In this connection reliance was placed upon Ss. 6 and 30 of the U. P. General Clauses Act. 1904. We have already seen that under S. 30 the provisions of U. P. General Clauses Act apply to Ordinances promulgated by the Governor of Uttar Pradesh under Article 213 of the Constitution. S. 6 deals with the effect of repeal of an enactment and it provides that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not inter alia affect any right acquired under the enactment so repealed. On the basis of these sections it was submitted that the effect of the Governor withdrawing an Ordinance under Article 213(2)(b) of the Constitution and the effect of an Ordinance ceasing to operate under Article 213(2)(a) of the Constitution are the same as the effect of the repeal of an Act and S. 6 of the U. P. General Clauses Act therefore applies in both these cases.

48. The record is not clear whether U. P. Ordinance No. 22 of 1978 was in fact withdrawn by the Governor under Art. 213(2)(b) of the Constitution nor has any notification to that effect been brought to our notice. It is, however, unnecessary-to consider the above submissions as, in our opinion, it is immaterial whether U. P. Ordinance No. 22 of 1978 was withdrawn by the Governor or had ceased to operate because according to us, what is involved here is a far more vital and important principle. Undoubtedly, a teacher in the reserve pool had a right under U. P. Ordinance No. 10 of 1978 as also under U. P. Ordinance No. 22 of 19,78 to be appointed to a substantive vacancy occurring in the post of a teacher in a recognized institution which was to be filled by direct recruitment. The Explanation to S. 4 of both the Ordinances is not relevant for this purpose for all that was provided by it was that no teacher in the reserve pool was entitled to claim an appointment to a post which he had joined during the period of the strike or to any post carrying the same or a higher grade. What this Explanation meant was that no reserve pool teacher could claim that he should be appointed to the identical, post which he had held during the period of the strike or to such post either in the same recognized institution or in any other recognized institution whether it carried the same grade or a higher grade. What is required to be noted is that the right which these teachers had under Ordinance No. 10 of 1978 continued under U. P. Ordinance No. 22 of 1978 because that Ordinance came into force with retrospective effect from June 24,1978, that is the date on which U. P. Ordinance No. 10 of 1978 was, promulgated and by S. 8 of U. P. Ordinance No. 22 of 1978 which repealed U. P. Ordinance No. 10 of 1978 it was expressly provided that anything done or any action taken under U. P. Ordinance No. 10 of 1978 should be deemed to have been done or taken under U. P, Ordinance No. 22 of 1978 as if U. P. .Ordinance No. 22 of 1978 were in force at all material times. The register of reserve pool teachers maintained under U. P. Ordinance No. 10 of 1978 must, therefore, be deemed to be a register of reserve pool teachers to be maintained under U. P. Ordinance No. 22 of 1978. As appears from the judgment of the High Court in the Sangh's case, as against 2,257 reserve pool teachers there were at that time 2,740 substantive vacancies in recognized institutions. These vacancies were required to be filled by direct recruitment. This fact is not disputed before us. But for the orders of the High Court, all reserve pool teachers would, therefore, have been appointed in accordance with the provisions of either U. P. Ordinance No. 10 of 1918 or U. P. Ordinance No. 22 of 1978. They could not be so appointed by reason of the interim orders passed by the Allahabad High Court and the judgment of that High Court in the Sangh's case. Where a Court has passed an interim order which has resulted in an injustice, it is found at the time of the passing of the final order if it takes a different view at that time, to undo that injustice as far as it lies within its power. Similarly, where an injustice has been done by the final order of a Court, the superior Court, 'if it takes a different view, must, as far as lies within its power, seek to undo that injustice. Great prejudice has been suffered and injustice done to those reserve pool teachers who had not been appointed to substantive vacancies which had occurred in the posts requiring to be filled by direct recruitment. Since we have held that the Sangh's case was wrongly decided, it is our duty to undo this injustice. There are, however, certain difficulties in directing these teachers to be appointed from the dates on, which they would have been respectively appointed but for the orders of the High Court because those vacancies have already been filled and in all likelihood those so appointed have been confirmed in their posts and ought not to be now thrown out therefrom for no fault of theirs. In view of this fact we feel that it would be in consonance with justice and equity and fair to all parties concerned if the remaining teachers in the reserve pool are appointed in accordance with the provisions of U. P. Ordinance No. 22 of 1978 to substantive vacancies in the posts of teachers in recognized institutions which are required to be filled by direct recruitment as and when each such vacancy occurs.

49. What we have said above will apply equally to those reserve pool teachers whose services were terminated and who had not filed any writ petition or who had filed a writ petition but had not succeeded in obtaining a stay order as also to those reserve pool teachers who had not been appointed in view of the interim orders passed. by the High. Court and thereafter by reason of the judgment of the High Court in the Sangh's case and who have not filed any writ petition.

50. To summarize our conclusions:

(1) A High Court ought not to hear and dispose of a writ petition under Art. 226 of the Constitution without the persons who would be vitally affected by its jugment being before it as respondents or at least some of them before it as respondents in a representative ,capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for non- joinder of necessary parties.

(2) The Allahabad High Court ought not to have proceeded to hear and dispose of the Civil Miscellaneous Writ No. 9174 of 1978 - Uttar Pradesh Madhyamik Shikshak Sangh v. State of Uttar Pradesh, 1979 All LJ 178 - without insisting upon the reserve pool teachers being made respondents to that writ petition or at least some of them being made respondents thereto in a representative capacity as the number of the reserve pool teachers was too large and had the petitioners refused to do so, to dismiss that writ petition for non-joinder of necessary parties.

(3) A writ of certiorari or a writ in the nature of certiorari cannot be issued for declaring an Act or an Ordinance as unconstitutional or void. A writ of certiorari or a writ in the nature of certiorari can only be issued by the Supreme Court under Article 32 of the Constitution and a High Court under Article 226 of the Constitution to direct inferior Courts, tribunals or authorities to transmit to the Court the record of proceedings pending therein for scrutiny and, if necessary, for quashing the Same.

(4) Where it is a petitioners contention that an Act or Ordinance is unconstitutional or void, the proper relief for the petitioner to ask is a declaration to that effect and if it is necessary, or thought necessary to ask for a consequential relief, to ask for a writ of mandamus or a writ in the nature of mandamus or a direction, order or injunction restraining the concerned State and its officers from enforcing or giving effect to the provisions of that Act or Ordinance.

(5) Though a High Court ought not to dismiss a writ petition on a mere technicality or because a proper relief has not been asked for, it should not, therefore, condone every kind of laxity, particularly where the petitioner is representated by an advocate.

(6) The Allahabad High Court, therefore, ought not to halve proceeded to hear and dispose of the said Civil Miscellaneous Writ No. 9174 of 1978 without insisting upon the petitioners amending the said writ petition and praying for proper reliefs.

(7) By reason of the provisions of S. 30 of the General Clauses Act, 1897, read with. Cls. (54) and (61) of, S. 3 thereof. it would not he wrong phraseology, though it may sound inelegant, to refer to a provision of an Ordinance promulgated by the President under Art. 123 of the Constitution or prior to the coming into force of the Constitution of India, by the Governor-General under the Indian Councils Act, 1861, or the Government Of India Act, 1915. or the Government of India Act, 1935, as "section" and to a sub-division of a section, numbered in round brackets as "sub-section".

(8) Similarly. by reason of the provisions of S. 10 of the U._P. General Clauses Act, 1904 read with clauses (40) and (43) of S. 4 thereof, it would not be wrong phraseology, though it my sound inelegant, to refer to a provision of an Ordinance promulgated by the Governor of Uttar Pradesh under Article 213 of the Constitution or prior to the coming into force of the Constitution of India., by the Governor of the United, Provinces under the Government of India Act, 1935, as "section" and to a sub-division of a section, numbered in round brackets, as "sub-section."

(9) Neither the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U. P. Ordinance No. 10 of 1978), nor the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U. P. Ordinance No. 22 of 1978), infringed Art. 14 or Art. 16(1) of the Constitution or was unconstitutional or void.

(10) The reserve pool teachers formed a separate and distinct class from other applicants for the posts of teachers in recognized institutions.

(11) The differentia which distinguished the class of reserve pool teachers from the class of other applicants for the posts of teachers in recognized institutions was the service rendered by the reserve pool teachers to the State and its educational system in a time of crisis.

(12) The above differentia bore a reasonable and rational nexus or relation to the object sought to be achieved by U. P. Ordinances Nos. 10 and 22 of 1978 read with the Intermediate Education Act, 1921 namely, to keep. the system of High School and Intermediate Education in the State of Uttar Pradesh functioning smoothly without interruption so that the students may not suffer a detriment.

(13) The preferential treatment in the matter of recruitment to the posts of teachers in the recognized institutions was, therefore, not discriminatory and did not offend Article 14 of the Constitution.

(14) As the above two classes were not similarly circumstanced, there could be no question of these classes of persons being entitled to equality of opportunity in matters relating to employment guaranteed by Art. 16(1) of the Constitution and the preferential treatment given to the reserve pool teachers was, therefore. not violative of Art. 161(1) of the Constitution.

(15) The case of Uttar Pradesh Madhyamik Shikshak Sangh v. State of Uttar Pradesh was wrongly decided by the Allahabad High Court and requires to be overruled.

(16) The termination of the services of the reserve pool teachers following upon the judgment of the Allahabad High Court was contrary to law and the order dated May 21, 1979, of the Government of Uttar Pradesh and the order dated May 29, 1979, of the Additional Director of Education, Uttar Pradesh, were also bad in law.

(17) Each of the reserve pool teachers had a right under U. P. Ordinance No. 10 of 1978 as also under U. P. Ordinance No. 22 of 1978 to be appointed to a substantive vacancy occurring in the post of a teacher in a recognized institution which was to be filled by direct recruitment.

(18) Each of the reserve pool teachers who had already been appointed and was continuing in service by reason of the stay orders passed either by the Allahabad High Court or by this Court is entitled to continue in service and to be confirmed in the post to which he or she was appointed, with effect from the date on which he or she would have been confirmed in the normal and usual course.

(19) Those reserve pool teachers who were not appointed as provided by U. P. Ordinance No. 10 of 1978 or U. P. Ordinance No. 22 of 1978. were not so appointed because of the interim orders passed by the Allahabad High Court and the judgment of the High Court in the Sangh's case. In view of the fact that this Court has held that the Sangh's case was wrongly decided by the High Court, the injustice done to these reserve pool, teachers requires to be undone.

(20) In view of the fact that the vacancies to which these reserve pool teachers would have been appointed have already been filled and in likelihood those so appointed have been confirmed in their post to appoint these reserve pool teachers with effect from any restropective date would be to throw out the present incumbents from their jobs for no fault of theirs. It will, therefore, be in Consonance with justice and equity and fair to all parties concerned if the remaining reserve pool teachers are appointed in accordance with the provisions of U. P. Ordinance No. 22 of 1978 to substantive vacancies occurring in the post of teachers in recognized institutions which are to be filled by direct recruitment as and when each such vacancy occurs.

(21) This will equally apply to those reserve pool teachers whose services were terminated and who had not filed any writ petition or who had filed a writ petition but had not succeeded in obtaining a stay order as also to those reserve pool teachers who had not been appointed in view of the interim orders passed by the High Court and thereafter by reason of the judgment of the High Court in the Sangh's case and who have not filed any writ petition.

51. For the reasons mentioned above, we allow these appeals. reverse the judgments appealed against and set aside the orders under appeal, and allow these writ petitions and make the rule issued in each of them absolute. We overrule the judgment of the Allahabad High Court in the case, of Uttar Pradesh Madhyamik Shikshak Sangh v. State of Uttar Pradesh 1979 All LJ 178 and in these appeals and writ petitions we pass further orders as follows':

1. We declare the orders of termination of the services of reserve pool teachers to be contrary to law and we quash and set aside the said orders as also the order dated May 21, 1979, of the Government of Uttar Pradesh And the order dated, May 29, 1979 of the Additional Director of Education, Uttar Pradesh, and all other orders, if any, to the same effect.

2. We direct that each of the reserve pool teachers who had already been appointed and was continuing in service by reason of the stay orders given either by the Allahabad High Court or by this Court is entitled to continue in service and is entitled to be confirmed in the post to which he or she was appointed with effect from the date on which he or she would have been confirmed in the normal and usual course.

3. We further direct that the remaining teachers in the reserve pool be appointed in accordance with the provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance 1978 (U. P. Ordinance No. 22 of 1978) to substantive vacancies in the posts of teachers in recognized institutions which are required to be filled by direct recruitment as and when such vacancy occurs.

4. This direction will apply to those reserve pool teachers whose services were, terminated and who had not filed any Writ petition or who, had filed a writ petition but had not succeeded in obtaining a stay order, and to those reserve pool teachers who had not been appointed in view of the interim orders passed by the High Court and thereafter by reason of the judgment of the High Court in the Sangh's case and who have not filed any writ petition.

52. Before we part with these appeals and writ petitions we would like to mention that in some of these writ petitions the only relief claimed is in general and vague terms. We reproduce that prayer., retaining its errors of grammar and syntax. That prayer is as follows :

"It is, therefore, prayed that this Hon'ble Court be pleased, to issue such writ, order or directions for the enforcement of the fundamental rights of the petitioner as are deemed fit and reasonable by this Hon'ble Court and to grant such other relief to the petitioner as is deemed fit and reason able for the redress of their grievance".

In the light of what we have said above about the defective prayer in the writ petition filed by the Sangh in the Allahabad High Court, we ought to insist upon these petitioners setting their house in order by amending the prayer clause and asking for proper reliefs. These petitions are drafted by advocates. It is true that these petitioners are poor and it must not have been possible for them to pay substantial fees to their advocates but that cannot be a reason for an advocate who undertakes a client's case not to give of his best to his client. An advocate should not measure the quality of work he will put into a case by the quantum of fees he receives. Our insisting upon these petitions being so amended would, however, involve delay and as some of these petitioners are reserve pool teachers who were not appointed by reason of the interim orders passed by the Allahabad High Court and the judgment of that High Court in the Sangh's case, it would result in further hardship to them by delaying their employment. We have therefore, not insisted upon these writ petitions being so amended but passed in these writ petitions also, the order set out above."

Pursuant to said judgment of Hon'ble Apex Court, Chapter IVA was inserted in the U.P.  Secondary Education Service Selection Board Act, 1982, and provision provided for reserve pool teachers was incorporated in the shape of Section 21A, 21B, 21C and 21D. These provisions are also being quoted below:                

"21-A. Definitions.- In this Chapter

(a)  "Director" means the  Director of Education, Uttar Pradesh and includes any other officer authorized by him in this behalf.

(b) the expression 'Inspector','Institution', 'Management' and 'Teacher' shall have the meaning respectively assigned to him in the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 provided that 'teacher' shall not include a Principal or a Head master.

21-B. Absorption of reserve pool teachers .- (1) The Inspector shall maintain in prescribed manner, a register of reserve pool teachers' consisting of subjectwise lists of persons who were apointed as teachers in nay institution situated in the district, either by the management or by the Inspector under sub-section (4) of Section 4 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 while the  the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees), Amendment Ordinance, 1977, was in force and who had actually  joined their duties in pursuance of the said provisions between January 9, 1978 and January 19, 1978 (both dates inclusive).

(2) Every reserve pool teacher, who having been appointed to the post of a teacher in any institution in accordance with the provisions of the  the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance No. 10 of 1978) or the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U.P. Ordinance No. 22 of 1978), continues to be in service  by reason of any order of any Court or by any other reason, shall be deemed to have been regularly appointed to such post and shall be entitled to be confirmed in such post with effect from the date on which he would have been confirmed in normal course.

(3)  Where any substantive vacancy in the post of a teacher in an institution is to be filled by direct recruitment such post shall, at the instance of the Inspector, be offered by the management to a teacher other than a teacher referred to in sub-section (2) whose name is entered in the register referred to in sub-section (1).

(4)  If any teacher is offered appointment in accordance with the provisions of  sub-section (3) and he fails to join the post within the time allowed therefor, which shall not be less than seven days, his name shall be removed from the register, referred to in sub-section (1) and the appointment shall be offered to the next reserve pool teacher of the same district in the subject.

(5)  If any such teacher to whom offer of appointment is made also fails to join, then the same process shall be repeated until the, list of reserve pool teachers of that district in the subject is exhausted.

(6)   No appointment of any teacher to an institution shall be made under section 16 until the list of reserve pool teachers of that district in the subject concerned is exhausted in accordance with sub-section (5).

Explanation -For the removal of doubts, it is hereby declared that no teacher shall, by virtue of the provisions of this Section, be entitled to claim appointment to any particular post which he had joined in the manner referred to in sub-section (1) or to any other post carrying the same or a higher grade.

21-C. Power of Director regarding transfer.-  (1) Where the vacancies available for teaching in any any subject are less than the number of reserve pool teachers available for appointment in any district,or where it is otherwise, or where it is otherwise necessary or expedient so to do, the Director, may, notwithstanding anything contained  in Section 21-B, direct that the name of any such teacher be excluded from the register maintained in one district and be included in the register maintained in another district.

(2)   Where the name of a reserve pool teacher is included in the register of another district in accordance with the provisions of sub-section (1), the provisions of  Section 21-B shall mutatis mutandis apply to such a teacher, except that the requirement of service as a teacher in such district shall not be necessary.

21-D. Appointment of teachers on default by management.- (1) Where the management fails to offer any post to a teacher in accordance with the provisions of sub-section (3) of Section 21-B within the time specified by the Inspector, the Inspector may, himself issue the letter of appointment to such teacher and the teacher concerned shall be entitled to get his salary from the date he joins the post in pursuance of such letter of appointment.

      (2)  Where the teacher to whom  the letter of appointment is issued under sub-section (1), is unable to join the post due to any act or omission on the part of the Management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary from the date he submits the said report."

On the parameters of the judgment of Hon'ble Apex Court as well as the provisions with regard to reserve pool teachers as contained under Sections 21A, 21B, 21C and 21D quoted above, claim of the contesting respondent is being seen, as her creation is based on the same. As per judgment of Hon'ble Apex Court and as per the provisions quoted above, every reserve pool teacher, who had been appointed to the post of a teacher in any institution in accordance with the provisions of the  the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance No. 10 of 1978) or the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U.P. Ordinance No. 22 of 1978), who continued to be in service  by reason of any order of any Court or by any other reason, was to be deemed to have been regularly appointed to such post and was entitled to be confirmed in such post with effect from the date on which he would have been confirmed in normal course. Qua the remaining reserve pool teachers as per provisions of sub-section (1) of Section 21-B The Inspector has to maintain in prescribed manner, a register of reserve pool teachers' consisting of subjectwise lists of persons who were apointed as teachers in nay institution situated in the district, either by the management or by the Inspector under sub-section (4) of Section 4 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 while the  the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees), Amendment Ordinance, 1977, was in force and who had actually  joined their duties in pursuance of the said provisions between January 9, 1978 and January 19, 1978 (both dates inclusive). Sub-section (3) of Section 21-B obliges the Management  to offer the post of teacher other than a teacher referred to in sub-section (2)  whose name is entered in the register referred to in sub-section (1). Thus, this is a particular provision which clearly and categorically makes place for reserve pool teachers to be offered appointment. At no point of time in the entire scheme of Section 21-B of U.P. Act No. 5 of 1982 there was any legislative intent to provide retrospective benefit to incumbents. The only right which was conferred was to be appointed against substantive vacancy occurring in the post of  teacher in recognized institutions, which was to be filled up by way of direct recruitment. In paragraph 50 (20) of the judgment in case of Prabodh Verma (supra), categorical mention was made  that to appoint these reserve pool teachers with effect from any retrospective date would in fact mean to throw out the present incumbents from their jobs for no fault of theirs. It will, therefore, be in consonance with justice and equity and fair to all parties concerned if the remaining reserve pool teachers are appointed in accordance with the provisions of U. P. Ordinance No. 22 of 1978 to substantive vacancies occurring in the post of teachers in recognized institutions which are to be filled by direct recruitment as and when each such vacancy occurs.  Contesting respondent was remaining reserve pool teacher. Thus, it is clear that appointment which was to be offered to remaining reserve pool teachers, the same was to be offered not from retrospective date, rather it was to be offered prospectively. In fact the judgment referred to above and the provisions of Section 21-B of U.P. Act No. 5 of 1982 have been misread and misconstrued  by the Regional Committee while extending the benefit to respondent No. 8 from the year 1978, and said view is not at all sustainable , as same is clearly dehors the statutory provisions.

For the reasons discussed above, present writ petition is allowed. The order dated dated 16.10.2006 passed by Regional Committee, Agra Region,. Agra is hereby quashed and set aside.  

No order as to costs.

09.05.2007

SRY.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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