MUNISHWAR DUTT PANDEY

RAMJEET TIWARI AND ORS.

DECEMBER 3, 1996

[N.P. SINGH AND S.B. MAJMUDAR, JJ.]

U.P. Secondary Education Se1vices Selection Boards Act, 1982/U.P.

Secondmy Education Services Commission Rules 1983/U.P. Secondmy Education Se1vices Commission (Removal of Difficulties) Order 1981:

Ss. 2(k), 16, 18, 33, 33-A(l)(l-A)!Rule 4/Paragraph 2 as substinued by U.P. Seconda1y Education Se1vices Commission (Removal of Difficulties) (Second) Order, 1981 and Paragraph 4-P1incipal-Ad hoc appointment-Regulmisation of-Existing Principal retired on 30.6.1988--Cliainnan

of Managing Committee appointed appellant as P1incipal w.e.f 1.7.1988 D subject to decision of Managing Committee-Managing Committee accepted appointment on 29.10.1988--Board conducted inteiviews on 15.4.1991 and selected respondent as Piincipal-Consequently respondmt was appointed as Piincipal-Wiit petition of appellant allowed by Single Judge of High Cowt but dismissed by its Division Bench-Held appellant was regularised by deeming provision of s.33-A(l)( 1-A) as P1incipal w.e.f 8.4.1991 and respon- E dent could not be appointed to the post subsequently-Substimted paragraph 2 of Removal of Difficulties (Second) Order has no nexus to existing vacancies on date of its con1niencenlent; it applies to substantive vacancies caused in future which could be filled by Management by promotion on purely ad hoc basis-By resolution dated 29.10.1988 the Managing Committee accepted and ratified the ad hoc appointment of appellant as Principal w.e.f

1. 7.198fr-Intennediate Education Act, 1921.

Inteipretation of Statutes.

Preamble-Held cannot control the CJ.press clear language and sweep G of operating provisions of an instnunent.

Words and Phrases :

Expression 'Teacher' occuning in s.2(k) of U.P. Secondary Education Se1vices Selection Boards Act, 1981-Held includes 'P1incipal.

H 439

A The appellant was the seniormost lecturer and the contesting respondent was the second seniormost lecturer of the respondent-Inter College.

On the superannuation of the Principal on 30.6.1988, the Secretary of the Managing Committee of the College recommended that charge of the post of the Principal be given to the appellant. The President/Chairman of the Managing Committee accepted the recommendation and issued a letter B appointing the appellant as ad hoc Principal of the College w.e.f. 1.7.1988.

It was mentioned in the letter that the appointment was purely ad hoc and would last till a suitable candidate was appointed by the U.P. Secondary Education Services Selection Board or till any other decision was taken by the Management. The Managing Committee passed a resolution on C 29.10.1988 accepting the ad hoc appointment of the appellant. The appoint

ment was approved by the District Inspector of Schools. In July 1988 the Managing Committee of the College forwardeJ the names of the appellant and the contesting respondent to the Board for consideration to the post of Principal. The Board conducted the interviews on 25.4.1991 and selected the respondent as the Principal. Consequently, the Managing Committee D appointed the contesting respondent to the post of Principal by resolution dated 13.5.1991.

Meanwhile the U.P. Secondary Education Services Selection BQards Act, 1982 was amended and by s. 33-A(l)(lA) thereof, appointments of E those teachers who were promoted under paragraph 2 of the Removal of Difficulties Order, 1981 were regularised provided they had been continuously serving from the date of such appointment to the date of amendment, i.e. 6.4.1991. Consequently, the appellant filed a writ petition claiming that by virtue of the amended provisions u/s 33-A(l)(lA), his ad hoc appointment as Principal w.e.f. 1.7.1988 stood regularised and he was en- F titled to continue as the regular Principal of the College. The respondent also filed a writ petition contending that he was entitled to continue as a regularly selected Principal of the College. The Single Judge of the High Court, taking note of s.33-A(l) (l A), allowed the claim of the appellant and dismissed the writ petition of the respondent. On . appeal, the Division G Bench of the High Court rejected the claim of the appellant and set aside the judgment of the Single Judge. Aggrieved, the appellant filed the present appeal.

It was contended for the appellant that eversince his promotion on ad hoc basis w.e.f. 1.7.1988, he continued as the Principal of the College H till the commencement of the amended provision u/s 33-A(l)(lA) of the

M.D.PANDEYv. R. TIWARI 441

Act i.e. 6.4.1991, and as such, his appointment as the Principal was A required to be regularised, and the subsequent interviews held by the Board and selection of the respondent were an exercise in futility, as they related to a post which was no longer vacant from 6.4.1991 onwards. The contention of the respondent was that substituted paragraph 2 of the Removal of Difficulties (Second) Order, 1981 would not apply in the case B of appointment of the appellant as it would limit the substantive vacancies on the date of commencement of the Second Order; and that appellant's appointment was made in accordance with s.18 of the Act. It was also contended by the respondent that the resolution passed by the Managing Committee of the College on 29.10,1988 was prospective and it could not retrospectively promote the appellant w.e.f. 1.7.1988 and as such the ap- C pellant got no benefit of s.33-A(l)(l-C).

Allowing this appeal, this Court

HELD : 1. The Division Bench of the High Court was in error in upsetting the decision of the Single Judge who had held in favour of the D appellant. The appellant was regularised by the deeming provision of Section 33-A(l)(l-A) of the U.P. Secondary Education Services Selection Board Act, 1982 as the Principal of the College with effect from 9.4.1991 and the contesting respondent, therefore, could not be appointed to the said post pursuant to the seiection process which became abortive and inopera- E tive in law as there was in fact no vacancy of Principal which could be filled up by any selection process undertaken after 8th April, 1991.

[477-H; 478-A-B)

2.1. Section 33-A(l)(l-A) shows that before it can be pressed in service the following conditions must be satisfied by the concerned teacher who claims to be regularised thereunder :

(i) 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;

(ii) Such appointment must have been made in accordance with paragraph 2 of the First Order of 1991 as amended from time to time;

(iii) He must possess the qualifications prescribed under the Intermediate Education Act, 1921 or might have been exempted from such qualifications;

(iv) Regularisation will be with effect from the date of the commencement of the Amending Act of 1991; and

(v) 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 of 1991. (465-E-H; 466-A)

2.2. Admittedly the appellant was senior to the respondent and the Management, in July 1988, sent a requisition to the Board for selection of a regular Principal of the College and it had also sent the names of both these contesting teachers to the Board; but before the Board could call them C for interview, the appellant got appointed by promotion w.e.f. 1.7.1988. The appellant was thus appointed by promotion on ad hoc basis against substantive vacancy of Principal much before the coming into operation of s33-A(l)(l-A) of the Act. Therefore, on the facts of the case the first condition got satisfied. [473-B-C, 470-B]

23. The appointment of appellant 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 paragraph 2 read with paragraph 4 of the 1981 Order and it could not be said, therefore, that the second condition for applicability of section 33-A(l)(l- A) was not fulfilled in the present case an erroneoulsy held in the judgment E under appeal. The second condition for applicability of Section 33-A(l)(l-

A), therefore, is also complied with in the present case by the appellant.

[471-F-G)

2.4. So far as the third condition is concerned, there is no dispute that the appellant possessed all the qualifications prescribed under the Act of 1921 for filling up the said post. [ 471-H)

2.5. So far as the fourth and fifth conditions are concerned, they are also fulfilled by the appellant as he claims regularisation from the date of commencement of the Amending Act of 1991, that is, with effect from 6th G April, 1991 and till that 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. [471-H; 472-A)

2.6. All the five conditions for applicability of Section 33-A(l)(l-A) were fulfilled by the writ petitioner and as such he became a regularised H Principal of the College with effect from 6th April, 1991 and had to be

M.D.PANDEYv. R. TIWARI 443

treated to be on probation on the said post of Principal from 6th April A 1991 as laid down by Section 33A(l)(lA) and 33A(2) of the Act. Conse

quently the vacancy of the post of Principal ceased to exist on and from · 6th April, 1991 and the subsequent interviews for filling up the post of Principal as held on 15th April 1991 and the recommendation of Selection Committee on 3rd May 1991 would become redundant and otiose as such B a recommendation would be to a post which no longer existed for being filled in by direct selection. [ 472-BC]

3.1. Paragraph 2 as substituted by the Removal of Difficulties (Second) Order has no nexus to any existing vacancy on the date of commencement of the Order or to a vacancy arising only within a period C of two months there-after. On the contrary, it operates in future and takes in its sweep all substantive vacancies of teachers, including that of Prin cipal, 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. [467-CD]

3.2. Preamble of a statutory instrument cannot control the express clear language and sweep of the operating provisions of such an instru ment. Nor can the express lan§llage 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. [467-G-H] E

Rashtriya Mill Mazdoor Sangh v. National Textile Corporation (South Maharashtra) Ltd. and Ors., (1995) 6 SCALE 609, relied on.

State of Kamataka & Anr. etc. v. Shri Ranganatha Reddy & Anr. Etc., [1978] 1 SCR 641; Secretary, Regional Transport Authority, Bangalore and F Anr. v. D.P. Shanna & Ors., [1989] Supp. 1 SCC 407; His Holiness Kesavananda Bharati Sripadagalvaru etc. v. State of Kera/a & Anr. Etc., [1973] SCC 225 and Minerva Mills Ltd. & Ors., v. Union of India & Ors., [1980] 2 SCC 591, cited.

33. In the instant case, whatever the Preamble might have said, a clear distinct intention to the contrary is seen from substituted paragraph 2 by Removal of Difficulties (Second) Order. The Order making authority had tried to go beyond the scope of the Preamble while enacting ti1e substituted paragraph 2 when the earlier paragraph 2 of the First Order

ran parallel to the Preamble. [468-G-H] H

A 3.4. Even otherwise, the Removal of Difficulties Order has a permanent operational effect and would necessarily, therefore, cover all futnre vacancies after 1981. (468-H; 469-A]

Prabhat Kumar Shanna & Ors. v. State of UP. & Ors., JT (1996) 6 SC 579, relied on.

Radha Raizada & Ors. v. Committee of Management, Vidyawati Darbari Girls College & Ors., (1994) 3 UPLBEC 1551, referred to.

4.1. Paragraph 2 of the 1981 Order as substituted by Second Order C in juxtaposition with paragraph 4 of the First Order which had remained unamended and untouched by the Second (Amendment) Order, both operate on the same field. Paragraph 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 D 'tfacher' includes Principal as provided by Section 2(k) of the Act the

thrust of the amended paragraph 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 E be kept in view. Paragraph 2 specifies the vacancy and paragraph 4 deals with the procedure for filling up such a vacancy. (470-F-H; 471-B]

4.2. Paragraph 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 paragraph 2 has to be filled in. It states that F ad hoc appointment by promotion in the post of Head of the Institution has to be made only by appointing the seniormost teacher of the institntion. It is not as if paragraph 4 operates independently of paragraph 2 as paragraph 2 in its sweep covers substantive vacancies of all teachers who might have died or retired or resigned or might have gone ont otherwise.

But while coming to the Head of the Institution, special procedure has been G provided in paragraph 4 and to that extent paragraph 4 is a proviso to paragraph 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 basis by appointing the senior-most teacher of H the Institution in the lecturers' grade. [471-A-D] -

M.D.PANDEYv. R. TIWARI 445

5.1. Section 18 was not attracted in the facts of the present case. For A applicability of Section 18 two conditions are required to be fulfilled • (i) the management must have notified the vacancy to the Commission on occurrence of vacancy within 15 days and the management has to send names of two seniormost teachers whose claims have to be considered by the Commission and (ii) after such notification the Commission should have failed to recommend the name of any suitable candidate for a period of one year or the concerned post should have remained actually vacant for more than two months. If these two contingencies occur then the management may appoint by promotion a teacher on purely ad hoc basis as per Section 18. [472-G-H; 473-A-B]

5.2. None of the conditions for applicability of section 18 is shown to have existed on the facts of the present case, as the appellant was put in saddle as Principle of the College by the Managing Committee itself ratifying his promotion on ad hoc basis with effect from 1st July, 1988 prior

to the notifying of the vacancy by the management to the Commission and D such appointment being made not within two months of such notification and as the said post had not rema-ined actually vacant during that period on account of the ratification by the Managing Committee of the action of its President. [477-E-F]

6.1.Though s.18 of the Act and paragraph 2 of the Order deal with E the same topic, namely, 'Ad hoc appointment ot' teachers in an institution governed by the Act', but 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 F 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 it operates on a permanent basis, when the Order operates the provisions of the Act which may be covering the field will themselves get modified or altered or even omitted. That exercise is permitted by the parent legislation itself by enacting Section 33. Even that apart, sob-section (2) of Section 33 itself G provides that such an order has to be laid before both the Houses of the State Legislature. So it would get the sanction of the parent legislature itself. [476-F-H; 477-A-B]

6.2. Section 16 of the Act which deals with' appointment to be made H

A only on recommendations of the Commission or the Board' is expressly made subject to Section 33 and 33-A, amongst others. These provisions are in the parent Act itself and consequently Section 33-A 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, B namely, Section 18 on the one hand and Section 33-A including Section

33-A(l)(l-A) on the other. [477-B-C]

7.1. The appellants appointment by promotion as ad hoc Principal was effective from 1st July, 1988 and the appointment was obviously made by the President of the College appointing the appellant on the post of C .Principal by promotion on ad hoc basis. But the said appointment was made subject to any contrary decision by the Management or selection of a candidate from the Secondary Education Services Commission and in either of these two eventualities the appointment of the appellant was automatically to come to an end.Now it must be kept in view that President

D of the College was not a mere manager and he could act on behalf of the Managing Committee subject to the ratification of his action by the Managing Committee and that precisely happened by Resolution No. 2 of the Managing Committee dated 29th October, 1988. [474-A-C]

7.2. The phraseology employed by the Managing Committee in its E Resolution of 29th October 1988 leaves no room for doubt that it had accepted and ratified what its President had done when he passed the first order promoting on ad hoc basis the appellant as Principal of the College with effect from 1st July 1988. [476-B]

. 7.3. The operative part of the Resolution clearly mentions that F 'Managing Committee unanimously accepts the ad hoc appointment' of the appellant. Acceptance of the ad hoc appointment is different from ordering ad hoc appointment. In other words the operative part of the Resolution does not read that the Managing Committee unanimously appoints the appellant as ad hoc Principal. On the contrary it states that the 'Managing G Committee unanimously accepts the ad hoc appointment of the appellant meaning thereby that the ad hoc appointment of the appellant made by the President with effect from 1st July 1988 is ratified and approved. The aspect is further highlighted by the approval granted by the Inspector of Schools

to the said appointment by promotion for the purpose of salary grant from 1st July 1988 as seen from the letter of District Inspector of Schools dated H 19th May 1989 which accorded sanction for payment of salary for ad hoc

M.D.PANDEYv. R. TIWARI [S.B.MAJMUDAR, J.] 447

appointment of the appellant, seniormost lecturer of the College from the A date of taking over charge of the post of Principal which fell vacant due to retirement of the appellant. [475BF]

8. The order of the Division Bench of the High Court is quashed and set aside and instead the order passed by the Single Judge on 7th Septem her, 1992 is restored. Appellant's writ petition will accordingly stand al B lowed. The appellant is entitled to function as fulfledged Principal of the College subject to his probation being declared by the Management.

(478-C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7943 of ~. c

From the Judgment and Order dated 22.3.96 of the Allahabad High Court in SA.No. 300 of 1992.

K.B. Sinha and S. Kulshreshtha for the Appellants.

Shrish Kumar Misra, Ms. Niti Dikshit and Ms. Meenakshi Arora for the Respondents.

The Judgment of the Court was delivered by

S.B. MAJMUDAR, J. In this appeal by special leave under Article 136 of the Constitution of India the appellant has brought in challenge the decision rendered by a Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench in Special Appeal No. 300 of 1992 moved by fespondent no. 1 against a common judgment and order of the learned Single Judge in three writ petitions filed by the contesting parties to these proceedings, namely, the appellant on the one hand and respondent no.l on the other. The short question involved in these proceedings is as to whether the appellant Munishwar Dutt Pandey or respondent no.l Ram

jeet Tiwari is entitled to continue as Principal of Brijendra Mani Inter College, Kohandaur, Pratapgarh functioning in the State of Uttar Pradesh. G For the sake of convenience we will refer to the appellant as original writ petitioner and respondent no.l as the main contesting respondent.

A few relevant facts leading to these proceedings deserve to be noted at the outset. The original writ petitioner and the contesting respondent were appointed as teachers in the aforesaid Brijendra Mani Inter College, H

A Kohandaur in Pratapgarh District of State of Uttar Pradesh. Both of them were working as lecturers in their respective Departments of Sanskrit and Geography. One J agdeo Prasad Misra was working as regularly appointed Principal of the said Brijendra Mani Inter College !hereinafter referred to as 'the College'). He retired from service on 30th June 1988 on attaining

the age of superannuation. Immediately before his retirement, said Shri Misra addressed a letter jointly to the Chairman/President of the Managing Committee of the College and its Secretary enquiring from them as to whom he should hand over charge on his retirement. In that letter he mentioned that the writ petitioner was the senior most lecturer of the College having been appointed on 12th August 1969 and the second senior most lecturer in the College was the contesting respondent. On this letter of retiring Principal, the Secretary of the Managing Committee made an endorsement to the President/Chairman of the Committee stating that Shri Misra was superannuating on 30th June 1988 and the writ petitioner was the senior most lecturer of the College and therefore, he recommended D that the charge of the post of Principal be given to him. This recommendation was accepted by the President/Chairman of the Committee on 1st July 1988. Pursuant to this order, a Letter of Appointment effective from 1st July 1988 was issued to the writ petitioner under the signature of Chairman/President of the Managing Committee appointing the writ

petitioner as ad hoc Principal of the College. It appears that on that day the said order was not backed up by any Resolutions of the Managing Committee. However it was me.1tioned in this Letter of Appointment that the writ petitioner was being appointed purely on ad hoc basis and his appointment would last till a suitable candidate was made available by the U.P. Secondary Education Services Selection Board (hereinafter referred to as 'the Board'), or till any other decision was taken by the management.

Pursuant to this Appointment Letter the writ petitioner started working as Principal of the said College from 1st July 1988. On 29th October 1988 the Managing Committee of the College passed a Resolution accepting the ad hoc appointment of the writ petitioner on the post of Principal. The said appointment was in turn approved by the District Inspector of Schools vide G his letter dated 19th May 1989 for payment of salary under the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971. In the said Letter of Approval it was mentioned that the approval was given for appointment of the writ petitioner under Section 18 of U.P. Secondary Education Services Selec- H lion Board Act, 1982 (hereinafter referred to as 'the Act') and the appoint-

M.D.PANDEYv. R. TIWARI [S.B.MAJMUDAR, J.] 449

ment was purely temporary and would last till a candidate selected by the A Board was available.

It is not in dispute between the contesting parties that the writ petitioner is senior to the contesting respondent. The writ petitioner was appointed as lecturer in Sanskrit on 12th August 1969 whereas the contesting respondent was appointed as a lecturer in Geography on 14th August

1969. It was also an admitted position between the contesting parties before the High Court, both before the learned Single Judge as well as before the Division Bench, that the management of the College had sent in July 1989

c a requisition to the Board for selection of a regular Principal of the College. As prescribed under the Rules framed under the Act the management forwarded names of writ petitioner and contesting respondent to the Board which called both of them and other candidates for interview. The Board after interviews notified on 3rd May 1991 that it had selected the contesting respondent at serial no. 1 and one another person named Shiv Sagar Shukla at serial no. 2, in order of merit for the post of Principal of D the College. However the writ petitioner was not selected. The Board communicated the said notification to the management vide its letter dated 6th May 1991. In pursuance of the said selection the Committee of Management appointed the contesting respondent to the post of Principal of the College vide its Resolution dated 13th May 1991 and Letter of E Appointment of the same date was issued in favour of the contesting respondent who took over charge from the writ petitioner on 14th May

1991. Now in the meantime it transpired that Section 33-A of the Act got amended by the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991. As per the said Act Section 2 of the Amending Act was deemed to have come into force from 6th April 1991 and the remaining provisions were to come into force at once, Section 33-A of the Act amended by insertion of sub-sections (1-A), (1-B) and ( 1-C) in Section 33-A of the Act. We shall refer to the said provisions of

the Amending Act at an appropriate stage in latter part of this jucgment.

Placing reliance on these amended provisions of Section 33-A the writ G petitioner moved the High Court of Judicature at Allahabad, Lucknow Bench by way of writ petition contending that his ad hoc appointment as Principal with effect from 1st July 1989 had stood statutorily regularised and, therefore, he was entitled to continue as a regularised Principal of the College and consequently the contesting respondent could not continue as H

SUPREME COURT REP OR TS [1996] SUPP. 9 S.C.R.

A Principal of the said College. He, of course, by a separate writ petition challenged the process of selection undertaken by the Board but we are not concerned with that writ petition in the present proceedings. The third writ petition was moved by the contesting respondent contending that he was entitled to continue as a regularly selected Principal of the; College. As

B all these three writ petitions involved common questions they were heard together and were disposed of by a common judgment of the learned Single Judge of the High Court. The learned Single Judge took the view that in the light of the Amending Act of 1991 which had brought on the Statute Book Section 33-A(l)(l-A) of the Act appointment of writ petitioner was required to be regularised as Principal of the College. Consequently the C contesting respondent could not continue to function as Principal of the College. In the light of the aforesaid finding of his the writ petition filed by the writ petitioner was allowed. A writ of certiorari was issued quashing the notification dated 3rd May 1991 appointing the contesting _respondent as Principal of the College. A writ in the nature of mandamus was issued D commanding the management and other authorities which were joined as parties to the writ petitions not to give effect to the notification dated 3rd May, 1991 and directing them to allow the writ petitioner to continue on the post of Principal of the College. The writ petition filed by the contesting respondent was dismissed. As stated earlier it is this common order of the E learned Single Judge of the High Court which was brought in challenge by the contesting respondent by filing Special Appeal No. 300 of 1992 before the Division Bench of the High Court. The Division Bench by its impugned order took the view that the writ petitioner was not entitled to get regularisation of his ad hoc appointment as Principal and neither amended

F provision of Section 33-A(l)(l-A) nor Section 33-A(l)(lq was applicable to the case of the writ petitioner. Consequently there was no question of regularising his services as Principal and on the contrary as in the selection process the contesting respondent was selected and the writ petitioner was not selected, it was the contesting respondent who was entitled to continue as Principal of the College and not the writ petitioner.

G Consequently, the appeal was allowed and the judgment of the learned Single Judge was set aside. However it was clarified that as the writ petitioner Munishwar Dutt Pandey had held the post of Principal in spells under different orders of the Court if he had been paid the salary of the post of Principal he shall not be compelled to refund the same. If on the H other hand the salary was not paid he shall not be entitled to get it. The

M.D.PANDEYv. R. TIWARI [S.B.MAJMUDAR, J.] 451

aforesaid judgment of the Division Bench is brought on the anvil of scrutiny A in the present proceedings by the writ petitioner.

Rival Colltentions

Learned counsel for the writ petitioner contended in support of the appeal that the writ petitioner, who was promoted as Principal on ad hoc basis with effect from 1st July 1988, was entitled to be regularised in the substantive vacancy of the Principal of the College by virtue of Section 33-A(l)(l-A) of the Act. He submitted that it is true that reliance was also placed by the writ petitioner before the High Court on Section 33-A(l}(l- C} of the Act but he does not claim regularisation under the said provision.

According to him though earlier the appellant was prompted as ad hoc Principal under the orders of the President of the College with effect from

1st July 1988 the said appointment was duly backed up and ratified by subsequent Resolution of the Managing Committee of the College on 20th October 1989 and that the High Court was in error in treating the D appellant's ad hoc promotion to the post of the Principal of the College only from 29th October 1988. In his submission the said conclusion reached by the Division Bench of the High Court was contrary to the express terms of the said Resolution which clearly stated that the Managing Committee had unanimously accepted the writ petitioner's ad hoc appointment as 'Acharya' and this acceptance obviously referred to the initial ad hoc E appointment w.e.f. 1st July 1988. It was next contended by learned counsel for the writ petitioner that the Division Bench of the High Court was not justified in taking the view that the writ petitioner's appointment by way of promotion to the post of Principal was governed by paragraph 4 of the Uttar Pradesh Secondary Education Services Commission (Removal of F Difficulties) Order, 1981 (hereinafter referred to as 'the Order'} and not by paragraph 2 thereof. According to the learned counsel paragraph 4 was complementary to paragraph 2. Both operated in the same field and had to be read conjointly. It was accordingly submitted that the case 0f the appellant for regularisation was squarely covered by the amended G provisions of Section 33-A(1}(1-A} of the Act and that once that conclusion was reached the writ petitioner stood regularised as Principal by the deeming fiction of the said provision w.e.f. 6th April 1991. Consequently the subsequent interviews for the said post as held by the Selection Board were an exercise in futility as they related to a post which was no longer vacant from 6th April 1991 onwards. Hence the result of the H

A selection proceedings by the Board became superfluous and of no legal effect. Accordingly the selection of contesting respondent pursuant to such an infructuous process of selection could not avail him to continue as Principal of the College. In his submission the decision to which the learned Single Judge reached was well borne out from the scheme of the B Act and was wrongly set aside by the Division Bench by the impugned judgment.

While supporting these contentions on behalf of the appellant-writ petitioner, learned counsel for respondent no. 4, the Committee of Management of the College, contended that the appointment of writ C petitioner by way of promotion on ad hoc basis was not as per Section 18 of the Act as for applicability of the said Section two conditions were required to be fulfilled:

(i) that the appointment should have been made after the vacancy of the Principal was notified by the Management to the Selection Commission in accordance with the provisions of the Act: and '

(ii) the period of one year should have elapsed from the date of such notification of vacancy during which the Commission had failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule or alternatively at least a period of two months should have elapsed during which the post of such teacher should have actually remained vacant and only thereafter the management might have appointed by promotion the concerned teacher on ad hoc basis.

According to her by the time the Management passed the Resolution on 29th October 1988 the post of Principal had not remained actually vacant. On the contrary on the wording of the said Resolution it could be G said that the said post of Principal was already occupied by the writ petitioner with effect from 1st July 1988 of course as an ad hoc promotee to the said post. It was, therefore, submitted by learned counsel for the Management that the appointment by way of promotion of the writ petitioner on ad hoc basis was made by the Management not as per Section H 18 of the Act but as per paragraph 2 of the Order.

M.D.PANDEYv. R. TJWARl[S.B.MAIMUDAR.J.] 453

On the other hand learned counsel for the contesting respondent in the first instance contended that the Order as subsequently amended the Second Order, did not cover vacancy which might arise after the coming into force of the said Orders as these Orders were confined to only those existing vacancies which had remained unfilled till the commencement of these Orders. In his submission the said conclusion can flow from the express wordings of both these Orders as construed in the light of the respective preambles to these orders. He submitted that on a harmonious construction of the relevant paragraphs of these Orders along with the preambles which indicated the need for enactment of such Orders by the subordinate legislative authority a conclusion can be reached that these Orders were meant to cater to only those vacancies which had seen the light of the day upto the time these Orders for removal of difficulties got enacted. That these Orders sought to remove the then existing difficulties for the managements which were not able to fill up the then vacancies and the selecting authorities, namely, the Commission or the Board on the other hand had not been able to select the required candidates to fill up these vacancies. That as in the present case the vacancy of the Principal had arisen seven years after promulgation of these Orders, the said vacancy

of the Principal was beyond the sweep of both the first and the second Orders. He fairly stated that this contention was not canvassed either before the learned Single Judge or before the Division Bench of the High Court but in his submission as the contention went to the root of the matter E and raised a pure question of law it deserved to be considered by us. He alternatively contended that paragraph (2) of the Order was clearly repugnant to the scheme of the Act and as paragraph (2) was a piece of subordinate legislation it must yield to the parent provision found in Section 18 and, therefore, it must be held that the ad hoc promotion given p to the writ petitioner was in substance according to the provisions of Section 18 and not de hors it. It was next contended by him that the Division Bench of the High Court rightly held that Resolution dated 29th October 1988 was purely prospective and could not retrospectively promote the writ petitioner with effect from 1st July 1988. That a conjoint reading of all the recitals of the Resolution yielded this result. Once that G is so it must be held, according to the learned counsel for the contesting respondent, that the writ petitioner got no benefit of Section 33-A(l)(l-A}.

He further contended that so far as the applicability of Section 33-A(l)(l- A) is concerned the Division Bench of the High Court had rightly held that paragraph (2) of the Order did not cover the writ petitioner's case as H

I A the writ petitioner was promoted as Head of the Institution if at all, as per Paragraph ( 4) of the Order and for such appointments the scheme of regularisation as contemplated by Section 33-A(l)(l-A) could not be of any avail as only ad hoc promotions under paragraph (2) of the Order were envisaged by the sweep of the said provision. Promotions of Heads of the B Institutions contemplated by paragraph ( 4) of the Order were outside he purview of the said provision and consequently the writ petitioner could not get the benefit of the said provision. That once the writ petitioner is out of the beneficial sweep of the regularisation provisions of Section 33-A(l)(l-A) it must be held, submitted learned counsel for the contesting respondent, that as he had failed to be selected for the said post in open C competition and the contesting respondent was duly selected on merits for the said post, the writ petitioner was rightly non-suited by the impugned judgment of the Division Bench of the High Court.

In view of these rival contentions the following points arise for our determination :

(1) Whether the writ petitioner is entitled to get the benefit of deemed regularisation of his ad hoc promotion as Principal of the College under Section 33-A(l)(l-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 1st July 1988 as contended by the writ petitioner or from 29th October 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 :

G Point No. I - 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 effective from 1st July 1988 and not only H from 29th October 1988.

M.D. PANDEYv. R. TIWARI [S.B. MAJMUDAR, J.] 455

In view of our aforesaid answers to these points for determination A the writ petitioner is entitled to succeed in the present proceedings. We now proceed to record our reasons in support of the aforesaid answers to these points for determination. However before we do so it would be apposite to glance through the relevant statutory provisions governing the controversy between the parties.

Statutory provisio11s

The Act of 1982 was preceded by an Ordinance of 1981. The said Ordinance was captioned 'Uttar Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 (U.P. Ordinance No. 8 of 1981)'. It was promulgated with a view to establish a Secondary Education Services Commission and six or more Secondary Education Selection Boards for selection of teachers in institutions recognised under the Intermediate Education Act, 1921. It is not in dispute that the College

in question is governed by the provisions of the Intermediate Education Act, 1921. This Ordinance was followed by the Act of 1982 being U .P., Act D No. 5 of 1982. The Preamble of the said Act provides that it is an Act to establish Secondary Education Services Commission and Selection Boards for selection of teachers in institutions recognised under Intermediate Education Act, 1921. We will now refer to the relevant provisions of the said Act as were applicable at the relevant time iii' 1988 when the vacancy E of the Principal arose in the College and for occupying the same the rival claims of the wr:t petitioner and the contesting respondent have to be examined. Section 8 of the Act provides for establishment of Commission called Uttar Pradesh Secondary Education Services Commission. The Commission was entrusted under Section 9 with the powers and duties to prepare guidelines on matters relating to the method of recruitment and promotion of such categories of teachers as are specified in the Schedule F

and to perform diverse other functions as laid down in the said Section.

Section 10 of the Act is material for our purpose. It reads as under :

"JO. Procedure of seiectio11 of teachers specified in the Schedule. • G

(1) For the purposes of making appointment of a teacher specified in the Schedule, the 1management shall notify the vacancy to the Commission in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for appointment to H

the post of such teachers shall be such as may be prescribed :

Provided that the Commission shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1)."

B The said Section will have to be read with Section 2(k) which defines 'Teacher' to mean 'a person employed for imparting instruction in an institution and includes a Principal or a Headmaster'. A conjoint reading of these provisions will, therefore, indicate that once the vacancy of a Principal arises in a College governed by the said Act the management has C to notify the vacancy to the Selection Commission in the manner provided by the rules which prescribe the procedure for that purpose. The next relevant Section is found in Chapter IV of the Act dealing with 'Appointment of Selected Teachers'. It reads as under :

"16. Appointments to be made only on recommendations of the Commission or the Board.- (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder but subject to the provisions of Section 18, 21-B, 21-C, 21-D, 33 and 33-A -

(a) every appointment of a teacher specified in the Schedule, shall on or after July 10, 1981, be made by the management only on the recommendation of the Commission;

(b) every appointment of a teacher (other than a teacher specified in the Schedule), shall, on or after July 10, 1981, be made by the management only on the recommendation of the Board:

Provided that in respect of retrenched employees, the provisions of Section 18-EE of the Intermediate Education Act, 1921, shall apply with the modification that in sub-section (2) of G the aforesaid section, for the words 'six months' the words 'two years' shall be deemed to have been substituted.

(2) Every appointment of a teacher, in contravention of the provisions of sub-section (1), shall be void."

H Then follows Section 18 which represented the main bone of contention

M.D.PANDEYv. R. TIWARI (S.B. MAJMUDAR, J.] 457

between the contesting parties. It is, therefore, profitable to extract it as A under:

"18. Ad hoc Teachers.-(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act and-

(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or

(b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.

(2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'Board' for the expression

11Commission 11 •

(3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely-

(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post:

(b) when the period of one month referred to in sub-section ( 4) of Section 11 expires:

(c) thirtieth day of June following the date of such ad hoc G appointment. n

The next relevant Section is Section 33 which may profitably be noticed as under:

"33. Power to remove difficulties.-(1) The State Government may, H

for the purposes 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 modification, addition or omission, as it ' may deem to be necessary or expedient :

Provided that no such order shall be made after two years from the date of commencement of this Act.

(2) Every order made under sub-section (1) shall be laid before both the Houses of State Legislature.

(3) No order under sub-section (1) shall be called in question in any court on the ground that no difficulty as is referred to in sub-section (1) existed or required to be removed."

Then follows Section 33-A which deals with 'Regularisation of certain D appointment. The said Section with its relevant amendments is germane to the present controversy. The relevant provisions thereof read as under :

"33-A. Regularisation of certain appointmems.-(1) Every teacher directly appointed, before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of 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 such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement.

(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

M.D.PANDEYv. R. TIWARl[S.B. MAJMUDAR, J.] 459

exempted from such qualifications in accordance with the A provisions of, the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar P1adesh 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 B serving the institution from the date of such ad hoc appointment to the date of such commencement.

{1-B) ...

(1-C) Every teacher appointed by promotion or by direct recruit- C men! before July 31, 1988 on ad hoc basis against a substantive vacancy in accordance with Section 18, 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 D 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.

(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 referred to in sub-section {1) or {1-A) or (1-B) or (1-C) as the case may be.

{3) Nothing in this section shall be construed to entitle any teacher to substantive appointment-

(a) if on the date of commencement referred to in sub-section

(1) or (1-A) or (1-B) or {1-C), as the case may be such post G had already been filled or selection for such post had already been made in accordance with this Act, or

{b) if such teacher was related to any member of the Committe"

of management or the Principal, or Head Master of the institution concerned.

Explanation-For the purposes of this sub-section a person shall be deemed to be related to another if-

(i) they are members of a Hindu undivided family; or

(ii) they are husband and wife; or

(iii) the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921."

We may now refer to the relevant rules framed by the Governor in exercise of powers conferred under Section 35 of the Act. The relevant rule for our C purpose is Rule 4 which deals with 'Determination and intimation of vacancies'. It lays down that 'the Management shall determine and intimate to the Commission, in the proforma given in Appendix 'A' and in the manner hereinafter specified, the number of vacancies existing or likely to fall vacant during the year of recruitment and, in the case of any post, other D than the post of the head of an institution, also the number of vacancies to be reserved for the candidates belonging to the scheduled castes, scheduled tribes and other category of persons in accordance with the rules or orders issued by the Government in this behalf in regard to the educational institutions'. Clause (ii) of Rule 4(1) provides that 'in regard to the post of E head of an institution, the Management shall also forward, mutatis muta11dis in the manner hereinafter specified, the names of two senior-most teachers, copies of their service records (including character rolls) and such other record or particulars as the Commission may require from time to time'. Sub-rule (5) of Rule 4 lays down that, 'where a vacancy occurs at any time during the session or after the requisition has already been sent F in accordance wit.h sub-rules(2), (3), (4) or (5) of these Rules, the Management shall notify the vacancy to the Inspector within 15 days of its occurrence and the Inspector and the Deputy Director shall deal with it in the manner mentioned in sub-rules (3) and (4) within 10 days of its receipt by them'. The next relevant statutory provision is furnished by the Order G issued by the Governor in exercise of powers vested in him under Section 33 of the Act which deals with 'Removal of difficulties' as seen earlier. The said Order which may be styled as the first Order is dated 31st July 1981.

The Preamble of the said Order reads as under :

"Whereas, the Uttar Pradesh Secondary Education Services Com- H mission and Selection Boards Ordinance, 1981 (U.P. Ordinance

M.D. P ANDEYv. R. TIW ARI (S.B. MAIMUDAR, J.] 461

No. 8 of 1981) was promulgated on July 10, 1981 with a view to A establish a Secondary Education Services Commission and six or more Secondary Education Selection Boards for selection of teachers in institutions recognised under the Intermediate Education Act, 1921;

And, whereas, the establishment of the Commission and the Selection Boards is likely to take some time and even after the establishment of the said Commission and Boards, it is not possible to make selection of the teachers for the first few months;

And, whereas, a number of vacancies in the posts of teachers in various institutions recognised under the Intermediate Education Act, 1921, exist and the failure or delay in filling up of such vacancies is likely to create difficulties;

Now, therefore, in exercise of the powers under section 33 of the Uttar Pradesh Secondary Education Services Commission and D Selection Boards Ordinance, 1981 (U.P. Ordinance No. 8of1981).

The Governor is pleased to direct that the provisions of the said Ordinance shall have effect subject to provisions of the following Order:

Paragraphs 2 and 4 of the said Order are required to be noted at this stage.

They read as under :

"2. Vacancies in which ad hoc appointment can be made. The F management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely :-

(a) in the case of a substantive vacancy existing on the date of G commencement of this Order caused by death, retirement, resignation or otherwise;

(b) in the case of a leave vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement; H

(c) where a vacancy of the nature specified in clause (a) or clause

(b) comes into existence within a period of two months subsequent to the date of such commencement.

3.... . ..

4. Ad !toe appointment by promotion.-(1) Every vacancy in the post of the Head of an institution may be filled by promotion :-

(a) in the case of an Intermediate College, by the seniormost teacher of the institution in the lecturer's grade;

(b) in the case of a High School raised to the level of an Inter-

mediate College, b} the Headmaster of such High School;

(c) in the case of a Junior High School raised to the level of a High School, by the Headmaster of such Junior High Sch'ool.

(2) Every vacancy in the post of a teacher in Lecturer's grade may be filled by promotion by the seniormost teacher of the institution in the trained graduate (L.T.) grade.

(3) Every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the seniormost teacher of the institution in the trained undergraduate (C.T.) grade.

( 4) Every vacancy in the post of a teacher in the trained undergraduate (C.T.) grade shall be mled by promotion by the seniormost teacher of the institution in the J.T.C. grade or B.T.C. grade.

Explanation- For the purposes of clauses (1) to (4) of this paragraph the expression "seniormost teacher" means the teacher having longest continuous service in the institution in the Lecturer's grade or the trained graduate (L.T.) grade, or trained undergraduate (C.T.) grade or J.T.C. or B.T.C. grade, as the case may be.'

This Order was followed by the Second Order dated 11th September 1981.

It was also obviously enacted in exercise of powers of the Governor under Section 33 of the Act. The Preamble of the Second Order reads as under:

"Whereas, the Uttar Pradesh Secondary Education Services

M.D.PANDEYv. R. TIWARI [S.B.MAJMVDAR, J.] 463

Commission and Selection Boards Ordinance, 1981 (U.P. Or- A dinance No. 8 of 1981), was promulgated on July 10, 1981 with a view to establish a Secondary Education Services Commission and six or more Secondary Education Selection Boards for selection of teachers in the institutions recognised under the Intermediate Education Act, 1921 (U.P. Act No. 11of1921);

And whereas, the establishment of the Commission and the Selection Boards is likely to take some time and even after the establishment of the said Commission and Boards it may not be possible to make selection of the teachers for the first few months;

And whereas, a number of vacancies in the posts of teachers in various institutions recognised under the said Act exist and the failure or delay in filling up of such vacancies is likely to create difficulties;

And whereas, the filling up of certain short-term temporary D vacancies, caused by grant of leave to or on account of suspension of a teacher or otherwise, in accordance with the provisions of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 is likely to delay the appointment of substitutes in such vacancies;

Now, therefore, in exercise of the powers under sub-section (1) E

of section 33 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 (U.P. Ordinance No. 8 of 1981), read with section 21 of the U.P. General Clauses Act, 1904 (U.P. Act I 1904), the Governor is pleased to F direct that the provisions of the said Ordinance shall have effect subject to the provisions of the following order :

Paragraph 2 of the said Order deals with 'Procedure for filling up short G term vacancies' with which we are not concerned. The relevant clause of the said Second Order is Paragraph 6 which seeks to substitute paragraph 2 of the First Order by a new substituted paragraph 2 which reads as under:

"5. Substitution of Paragraph 2 of the First Removal of Difficulties Order, 1981.-ln the First Removal of Difficulties Order, 1981, for H

Paragraph 2, the following paragraph shall be substituted, namely-

'2.

The management of an institution may appoint by promotion or by direct recruitment, a teacher on 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."

In the background of the aforesaid statutory scheme it would be necessary to examine the scope and ambit of the U.P. Secondary Education Services Commission and Selection Boards (Amendment) Act. 1991 whereby Sec- C tion 33-A of the Act underwent substantial amendments and brought on the Statute Book provisions of Section 33-A(l)(l-A) and (1-C) which are extracted earlier. The Prefatory Note containing Statement of Objects and Reasons for the said Amendment Act of 1991 being U.P. Act 28 of 1991 deserves to be noted in this connection. It reads as under :

Prefakiry Note-Statement of Objects and Reasons.- Section 33-A of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 provides for the regularisation of the Services of such teachers as were appointed directly before June 12, 1985 on ad hoc basis against suhstantitve vacancies in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 and possessing the prescribed qualifications of exempted therefrom. It has been decided to amend the said Act to regularise the services of those qualified teachers also who were-

.(a) appointed by promotion on ad hoc basis against substantive vacancies in accordance with the provisions of paragraph 2 of the Said Order of 1981 and are continuing as such; and

(b) appointed by promotion or by direct recruitment before July 13, 1989 on ad hoc basis against substantive vacancies in accordance with Section 18 of the said Act and are continuously serving as such.

2. Since Certificate of Teaching grade has been declared to be a dying cadre from May 13, 1989 in non-Government Secondary H Schools and the new appointments in such cadre have since been

M.D.PANDEYv. R. TIWARI [S.B. MAJMUDAR, J.] 465

stopped, it has been decided that the services of those teachers A who were directly appointed on ad hoc basis against substantive vacancies in such grade after June 12, 1985 and before May 13, 1989, in accordance with the provisions cf paragraph 2 of the said Order of 1981 and are continuing as such should also be regularised.

3. Since the State Legislature was not in session and immediate legislative action to implement the said decision was necessary, the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance 1991 (U.P. Ordinance

No. 28 of 1991) was promulgated by the Governor on April 8, C 1991."

It is in the light of the aforesaid statutory scheme governing the controversy in question that we have to examine the main contentions of the contesting parties giving rise to the aforesaid points for determination. We accordingly proceed to deal with these points seriatim.

Point No. 1

So far as this point is concerned a mere look at Section 33-A(l)(l-A) shows that before it can be pressed in service the following conditions must E be satisfied by the concerned teacher who claims to be regularised thereunder:

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.

Such appointment must have been made in accordance with paragraph 2 of the First Order of 1981 as amended from time to time.

He must possess the qualifications prescribed under the Intermediate Education Act, 1921 or might have been exempted from such qualifications.

Regularisation will be with effect from the date of the commencement of the Amending Act of 1991.

A 5.

Subject to 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 of 1991.

B Before we proceed to examine the case of the writ petitioner for regularisation under the aforesaid provision and try to find out whether all the aforesaid conditions are satisfied by the writ petitioner or not one preliminary objection to such consideration as put forward by the learned counsel for the contesting respondent has to be noted for being dealt with. His objection is that the Order of 1981 itself as amended from time to time will C not apply in the case of the writ petitioner. He fairly stated that such a contention was not canvassed either before the learned Single Judge or before the Division Bench of the High Court and the controversy before the High Court was limited to the question of applicability of paragraph 4 or paragraph 2 of the said Order so as to attract or rule out the provisions D of Section 33-A(l)(i-A). However as the contention went to the root of the matter we have permitted learned counsel for the contesting respondent to agitate this point for our consideration.

Learned counsel for the contesting respondent submitted that the First Removal of Difficulties Order or for that matter the second one Will E 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 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 p before the machinery for filling up of these posts by selection would become fully operative and that there were 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 paragraph 2 of the First Order of 31st G July 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 paragraph 2 of the First Order of H 1981 while clauses (b) and ( c) thereof dealt with leave vacancies which

M.D. P ANDEYv. R. TIW ARI [S.B. MAJMUDAR, J .] 467

might have existed and might have continued upto a period exceeding two A months on the date of such commencement or such leave vacancies or substantive vacancies might have come into existence within a period of two months subsequent to the date of commencement. These provisions had a direct nexus with the date of commencement of the Order, namely, 31st July 1991. Consequently it could have been said with some emphasis B that substantive vacancy of a Principal with which we are concerned should have either existed on the date of commencement of First Order, i.e., 31st July 1981 or at latest within two months thereafter and such a vacancy could be filled up by the management by promotion as per paragraph 2.

However said paragraph 2 concerning substantive vacancy underwent a sea change by the subsequent Ordei, that is, the Second Order dated 11th C September 1981. As we have seen earlier the said substituted paragraph 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 D of a teacher which could be filled up by the management by promotion on purely ad /we basis. It is of course true that the amended paragraph 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 making authority is E contra-indicated by the express terminology of the substituted paragraph 2 as distinguished from the earlier existing paragraph 2(a) in the Order of 21st July 1981 which had clearly linked such substantive vacancies with the date of commencement of the First Order. Consequently, on the express language of substituted paragraph 2 of the First Removal of Difficulties F Order by the Second Order it is not possible to agree with the contention of learned counsel for contesting respondent that even the substituted paragraph 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 G language employed by the Order making authority in the substituted paragraph 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 H

A this connection we may refer to a decision of a two member Bench of this Court in the case of Rashtriya Mill Mazdoor Sangh v. National Textile Corporation (South Maharashtra) Ltd. & Ors., (1995) 6 SCALE 609, S.C.

Agrawal, J. speaking for the Court relying on earlier decisions of this Court has observed in paragraph 10 of the Report as under :

B " ...... 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 : Bwrakur Coal C Co. Ltd. v. Union of India, (1962] 1SCR44 at page and Ms Motipur Zamindary Co. (P) Ltd. v. The State of Bihar, (1982] Supp. 1 SCR 498 at page 504)."

Learned counsel for the contesting respondent, however, invited our attention to the following judgments of this Court :

1. State of Kamataka & Anr. Etc. v. Shri Ranganatha Reddy & Anr.

Etc., (1978] 1 SCR 641.

Secretary, Regional Transpo1t Authority, Bangalore and Another v.

D.P. Shanna & Ors., (1989] Supp. 1 SCC 407.

3. His Holiness Kesavananda Bharati Sripadagalva1u Etc. v. State of Kera/a & Anr. Etc., (1973] 4 SCC 225.

Minerva Mills Ltd. & Ors. v. Union of India & Ors., (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 distinct intention to the contrary is seen from substituted paragraph 2 by G Second Removal of Difficulties Order. It must, therefore, be held that the

Order malcing authority had tried to go beyond the scope of the Preamble while enacting the substituted paragraph 2 when the earlier paragraph 2 of the First Order ran parallel to the Preamble. Even otherwise as held by this Court in the case of Prabhat Kumar Shanna & Ors. v. State of U.P. & H Ors., JT (1996) 6 SC 579 the Removal of Difficulties Order has a per-

M.D.PANDEYi. R. TIWARI [S.B. MAIMUDAR, J.] 469

manent operational effect and would necessarily, therefore, cover all future A vacancies after 1981.

In view of the aforesaid settled legal position, therefore, 1t must be held tht paragraph 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 92 of the Act under which these Orders have been erected. 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 modification, 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 D 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 Order 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 E making authority in its wisdom. In fact this question is concluded by the decision of this Court in Prabhat Kumar Shanna (supra). In the said decision a Bench of two learned Judge 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 F at that conclusion the Bench had referred to, with approval, the decision of a Full Bench of Allahabad High Court in the case of Radha Raizada & Ors. v. Committee of Management, Vidyawati Darbari Girls College & Ors.,

(1994) 3 UPLBEC 1551. Once these Removal of Difficulties Orders of 1991 are held to be of permanent nature and would, therefore, operate to cover future vacancies also, it is not possible to agree with the contention G 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 1st July 1988 on superannuation of the then Principal Shri Misra. Consequently the preliminary objection raised by learned counsel for the contesting respondent stands rejected.

A Now is the time for us to revert to the consideration of the question whether Section 33-A(l)(l-A) would apply in the case of 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 B Misra retired on 30th June 1980. We will revert to the controversy whether the writ petitioner's appointment by promotion on ad hoc basis was with effect from 1st July 1988 or from 29th October 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(l)(l-A) the writ

pfaioner was promoted on ad hoc basis as Principal of the College against C the substantive vacancy caused by the superannuation of the then Principal.

When we turn to the second conditi0n for applicability of Section 33- A(l)(l-A) it has to be seen whether such promotion of the writ petitioner was in accordance with paragraph 2 of the 1981 Order as amended from time to time. As we have observed earlier, paragraph 2 of the First Order D of 1981 as it was couched in the then existing form might have curtailed the filling up of such vacancy with reference to only the then existing vacancy on the commencement of the Order or as existing within two months thereafter but that restriction has been removed by the Order making authority in its wisdom by wholly substituting paragraph 2 by the Second (Amendment) Order as we have seen above. A mere look at that E 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 writ petitioner's ad hoc promotion on this substantive vacancy was as per paragraph 4 and not paragraph 2 of the First Order as amended by F the Second Order. When we keep paragraph 2 as substituted by Second

Order in juxtaposition with paragraph 4 of the First Order which had remained unamended and untouched by the Second (Amendment) Order we find that both operate in the same field. Paragraph 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 G 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 paragraph 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 H promotion on ad hoc basis the procedure laid down by the Order has to

M.D. PANDEY v. R. TIW ARI [S.B. MAJ MUD AR. J.] 471

be kept in view. Paragraph 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 paragraph 2 has to be filled in. Paragraph 2 specifies the vacancy and paragraph 4 deals with the procedure for filling up such a vacancy. When we turn to paragraph 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 paragraph 4 operates independently of paragraph 2 as paragraph 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 paragraph 4 and to that extent paragraph 4 is a proviso to paragraph 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 basis by appointing the senior-most teacher of

the institution in the lecturers' grade. With respect the Division Bench of D the High Court erred in taking the view that paragraph 4 would operate independently of paragraph 2 or has no nexus with paragraph 2. In fact paragraphs 2 and 4 will have to be read together as the terminology employed in paragraph 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 paragraph 2 the procedure laid down by paragraph 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 paragraph 2. It must, therefore, be held that the appointment of 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 paragraph 2 read with paragraph 4 of the Order and it could not be said, therefore, that the second condition for applicability

of Section 33-A(l)(l-A) was not fulfilled in the present case as erroneously held in the judgment under appeal. The second condition for applicability G of Section 33-A(l)(l-A), therefore, is also complied with in the present case by 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 1981 for filling up the said post. So far as the fourth and fifth conditions are concerned they are also' fulfilled by the writ H

A petitioner as he claims regularisation from the date of commencement of the Amending Act of 1991, that is, with effect from 6th April 1991 and till that 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 Section 33- A(l)(l- B A) were fulfilled by the writ petitioner. It must, therefore, be held that he became a regularised Principal of the College with effect from 6th April 1991 and had to be treated to be on probation on the said post of Principal from 6th April 1991 as laid down by Section 33-A(l)(l-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 15th April 1991 and the recom- C mendation of Selection Committee on 3rd May 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 of the post of Principal of this College ceased to exist on and from 6th April

1991. Consequently all the subsequent exercises of course in ignorance of D the aforesaid statutory provisions and the deeming 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 fall back upon or to occupy. The first point for determination is accordingly answered in the affirmative.

E Point No. 2

So far at this point is concerned learned counsel for the contesting respondent vehemently submitted that Section 18 of the. Act which is a paramount provision clearly lays down the procedure to be followed by the management for filling up on ad hoc basis the vacancies which might have been notified to the Commission in accordance with the provisions of the Act and once the said provision operates paragraph 2 or paragraph 4 of the Order which is a subordinate legislation must give way to parent provision. So far as this submission is concerned let us first see whether Section 18 was attracted in the facts of the present case. For applicability G of Section 18 two conditions are required to be fulfilled - (i) the management must have notified the vacancy to the Commission in accordance with the provisions of the Act and the rules framed thereunder which lay down that on occurrence of vacancy within 15 days the management has to notify such vacancy to the Commission and the management has to send names H of two senior-most teachers whose claims have to be considered by the

M.D.PANDEYv. R. TIWARI [S.B.MAJMUDAR, J.j 473

Commission; and (ii) after such notification the Commission should have A failed to recommend the name of any suitable candidate for a period of one year or the concerned post should have remained actually vacant for more than two months. If these two contingencies occur then the management may appoint by promotion a teacher on purely ad hoc basis as per Section 18. On the facts of the present case the first condition got satisfied as it is an admitted position between the parties as noted by tb; Division Bench of the High Court in the judgment under appeal that respondent no. 4 (present writ petitioner) was senior to the appellant before the Division Bench (present contesting respondent) and it was further admitted that the management in July 1988 sent a requisition to the U.P.

Secondary Education Services Selection Board for selection of a regular Principal of the College and it had also sent the names of both these contesting teachers to the Board which called both of them and others for interview. However before that was done on the very first day, that is, 1st

of July 1983 the writ petitioner got appointed by promotion. If that appointment was purely a stop-gap arrangement of holding charge, as submitted D by learned counsel for the contesting respondent, and became a promotional appointment on ad hoc basis only on 29th October 1988 by Resolu- . tion of the Managing Committee then it can be said that the first condition for applicability of Section 18 was satisfied. So far as the second condition is concerned the learned counsel for contesting respondent submitted that even that is satisfied because the Managing Committee appointed the writ E petitioner by way of ad hoc promotion as Principal of the College only on 29th October 1988 and till that time post of the Principal had actually remained vacant as the President of the College had no authority to appoint by ad hoc promotion any teacher to the post of Principal. Consequently for applicability of both these conditions the scope and ambit of F the Resolution of the Managing Committee dated 29th October 1988 would assume great significance. If the said Resolution operated prospectively as contended by learned counsel for contesting respondent then both the conditions of Section 18 would get attracted. If on the other hand the said ResoTution ratified the ad hoc promotion of the writ petitioner with effect from 1st July 1988 then none of the conditions of Section 18 would come G in the way of the writ petitioner or would cut across the applicability of Section 33-A(l)(l-A) and the appointment would remain within the forecorners of paragraph 2 of the Order as amended by the Second Order.

So far as this question is concerned, therefore, we have to look at H

A the wordings of the First Promotion Order and the wordings of the Managing Committee's Resolution of 29th October 1988. So far as the first appointment of the writ petitioner dated 30th June 1988 is concerned it was obviously made by the President of the College appointing the writ petitioner on the post of Principal by promotion on ad hoc basis. But the

8 said appointment was made subject to any contrary decision by the

Managemst or emerging on the scene any selected candidate from the Secondary Education Services Commission and in either of these two eventualities the appointment of the writ petitioner was automatically to come to an end. Now it must be kept in view that President of the College was not a mere manager and he could act on behalf of the Managing C Committee subject to the ratification of his action by the Managing Committee and that precisely happened by Resolution No. 2 of the Managing Committee dated 29th October 1988. We may refer to the translated version of the said Resolution as made available to us by the contesting respondent himself in his counter affidavit at Annexure '!'. It reads as D under:

True copy of resolution No. 2 :- Passed in the meeting dated 29.10.1988, of the Managing Committee of Sri Brijendra Mani Inter College Kohadaur Pratapgarh.

Resolution No. 2 :- Appointment of Officiating Principal on ad-hoc basis on the post of principal which was fallen vacant on account of retirement of Sri Jagdeo Prasad Misra the ex-Principal - Before the Managing Committee the application of Sri Munishwar Dutt Pandey Sr. Most Lecturer Sanskrit attested copies of eligibility Certificate and the report of Manager were produced. The Principal of the College Sri Jag Dea Prasad Misra has retired after attaining_ the age of 60 yrs. on 30.8.1988 and post is vacant. U/s. 16 CH.A. Chapter 11 of U.P. Inter Mediate Education Act 1921 the aforesaid post is to be filled by promotion of highest grade of sr. most lecturer.

T1te Managing Committee unanimously accept the ad-hoc appointment of Sri Mrmishwar Dutt Pandey MA. Acha1ya on the basis of his high service of 19 years."

[Emphasis supplied]

M.D.PANDEYv. R. TIWARI [S.B. MAJMUDAR, J.J 475.

We have also seen the original version of the Resolution which was in A Hindi. A copy thereof was taken on record by consent of parties. It is no doubt true that the Resolution had stated tht the post of the Principal was vacant on account of retirement of the the Pri'ncipal on 20th June 1988 and the post was to be filled in by promotio . But that is only introductory paragraph of the Resolution. The operative part of the Resolution clearly mentions that Managing Committee unanimously accepts the ad hoc ap pointment of the writ petitioner Shri Munishwar Dutt Pandey. The original version of this operative part of the Resolution in Hindi states that the Management accepts the ad hoc appointment of the writ petitioner as Principal. The words are 'tadarth niyukti sweekar karti hai'. Learned counsel for the contesting respondent would have been right if the Resolu tion would have read as 'tadarth niyukti karti hai'. Acceptance of the ad hoc appointment is dif\erent from ordering ad hoc appointment. In other words the operative par!;; of the Resolution does not read that the Manag ing Committee unanimosly appoint Shri Munishwar Dutt Pandey as ad

hoc Principal. On the corary it states that the 'Managing Committee D unanimously accepts the hoc appointment of Shri Munishwar Dutt Pandey' meaning thereby tha the ad hoc appointment of the writ petitioner made by the President with effect from 1st July 1988 is ratified and approved. Not only that this aspect is further highlighted by the approval granted by the Inspector of Schools to the said appointment by promotion E for the purpose of salary grant from 1st July 1988 itself as seen from the letter of District Inspector of Schools dated 19th May 1989 which accords sanction for payment of salary for ad hoc appointment of writ petitioner, senior most lecturer of the College from the date of taking over charge of the post of Principal which fell vacant due to retirement of the then Principal Shri Misra. It is of course true that the said approval letter of the District Inspector of Schools mentions that the said appointment is under Section 18 of the Act, but in the light of the legal position which emerges in the background of well established facts on record it has to be held that

the said appointment by promotion, of course on ad hoc basis, was to take effect from 1st July 1988 and it would obviously be prior to the notification of the vacancy which would have taken place not on 1st July 1988 itself but G at any time within 15 days from the occurrence of that vacancy. Learned counsel for the writ petitioner in this "onnection invited our attention to the Law Lexicon Reprint Edition 1987 of Shri P. Ramanatha Aiyar wherein at page 13 the word 'acceptance' has been shown to have one of the meanings, 'receipt of a thing offered by another with an intention to retain H

A it, as acceptance of a gift' or 'taking and accepting of anything in good part and as it were a tacit agreement to a preceding act, which might have been defeated and avoided were it not for such acceptance'. In our view the phraseology employed by the Managing Committee in its Resolution of 29th October 1988 leaves no room for doubt that it had accepted and B ratified what its President had done when he passed the first order promoting on ad hoc basis the writ petitioner as Principal of the College with effect from 1st July 1988. In the written submissions on behalf of the contesting respondent it has been pointed out that the agenda of the meeting of the Managing Committee was confined to the filling up of the vacancy of Principal on ad hoc basis. We fail to appreciate how this agenda could be C said to have been given a go-by when the Resolution was passed accepting the ad hoc appointment made earlier by the President. The Managing Committee was alive to the question about filing up of the vacancy of Principal by promotion on ad hoc basis and it is on that subject that the Managing Committee deliberated and passed the Resolution which must D be given effect according to its express terminology.

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 paragraph 2 of the Order being E an act of subordinate legislation, must yield to parent prO\osions 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 Bi1th & Ors. Etc. v. Union of India & Ors. Etc., (1989] Supp. 1 F 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 paragraph 2 of the Order is repugnant to Section 18. It is of course true that both of them deal with the same topic, namely, 'Ad hoc appointment of teachers in an institution governed by the Act'. But a G 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 affect 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 H of life for the Order and as held by this Court it operates on a permanent

M.D.PANDEYv. R. TIWARI [S.B. MAIMUDAR, J.] 477

basis, when the Order operates the provisions of the Act which may be A covering the field 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 the 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 33-A, amongst others. These provisions are in the parent Act itself and consequently Section 33-A 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 33-A including Section 33-A(1)(1- A) on the other.

For all these reasons, therefore, contention of contesting respondent that paragraph 2 of the Order which itself is incorporated in Section D 33-A(1)(1-A) and is a part and parcel of the same parent provision is in any way repugnant to Section 18 of the Act. It must, therefore, be held that none of the conditions for applicability of Section 18 is shown to have existed on the facts of the present case, as the writ petitioner was put in saddle as Principal of the College by the Managing Committee itself E ratifying his promotion on ad hoc basis with effect from 1st July 1988 prior to the notifying of the vacancy by the management to the Commission and such appointment being made not within two months of such notification and as the said post had not remained actually vacant during that period on account of ratification by the Managing Committee of the action of its President as seen earlier. The second point for determination, therefore, is answered in the negative.

Point No. 3

The answer to this point is covered by the aforesaid discussion on G Point No. 2 an accordingly it must be answered by holding that the writ petitioner's appointment by promotion as ad hoc Principal was effective from 1st July 1988.

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 H

A 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(l)(l-A) as Principal of the College with effect from 9th Apri.1 1991 and contesting respondent, therefore, could not be appointed to the said post pursuant to the selection process which B became abortive and inoperative in law as there was in fact no vacancy of the Principal which could be filled up by any selection process undertaken after 8th April 1991 so far as the College managed by the 4th Respondent is concerned.

In the result this appeal succeeds and is allowed. The order of the C Division Bench of the High Court in Special Appeal No. 300 of 1992 is quashed and set aside and instead the Jrder passed by the learned Single Judge on 7th September 1992 is restored. Writ petitioner's writ petition will accordingly stand allowed. As a consequence of the present order, the order of status quo granted on 15th April 1996 will stand vacated. The writ petitioner is held entitled to function as full-fledged Principal of the D College subject to his probation being declared by the Management. In the facts and circumstances of the case there will be no order as to costs.

R.P.

Appeal allowed.