# MUNISHWAR DUTT PANDEY v. RAMJEET TIWARI AND ORS

- **Citation:** [1996] Supp. 9 S.C.R. 439
- **Court:** Supreme Court of India
- **Decided:** 1996-12-03
- **Bench:** N.P. Singh, S.B. Majmudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/munishwar-dutt-pandey-v-ramjeet-tiwari-and-ors-15093
- **Pages:** 40

## Headnote

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
A
B
c
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 responE
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.
F
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
440
SUPREME COURT REPORTS (1996] SUPP. 9S.C.R.
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)(l·A) 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)(l·A), his ad hoc
appointment as Principal w.e.f. 1.7.1988 stood regularised and he was enF 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

## Text

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MUNISHWAR DUTT PANDEY
v.
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
A
B
c
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 responE
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.
F
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
440
SUPREME COURT REPORTS (1996] SUPP. 9S.C.R.
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)(l·A) 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)(l·A), his ad hoc
appointment as Principal w.e.f. 1.7.1988 stood regularised and he was enF 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)(l·A) 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 apC
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 inoperaE
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;
F
G
H
A
B
442
SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
(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]
D
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)(lA) 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)(lA), therefore, is also complied with in the present case by the appellant.
[471-F-G)
F
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 33·A(l)(l·A) and 33·A(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-B·C]
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-C·D]
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
D
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
G
ran parallel to the Preamble. [468-G-H]
H
444
SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A
3.4. Even otherwise, the Removal of Difficulties Order has a perB
manent 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
B
c
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
446
SUPREME COURT REPORTS [1996] SUPP. 9 S;C.R.
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. [475·B·F]
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·
D
E
F
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
448
SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
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
B
c
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
E
F
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 SelecH 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
B
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
F
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
450
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)(l- q 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}(lC} 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
B
c
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
452
SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
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:
D
E
F
(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
A
B
c
D
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)(lA) 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
454
SUPREME COURT REPORTS [1996) SUPP. 9 S.€.R.
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.
D
E
F
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.
B
Statutory provisio11s
The Act of 1982 was preceded by an Ordinance of 1981.