# PRABODH VERMA AND OTHERS, ETC v. STATE OF UTTAR PRADESH AND OTHERS, ETC

- **Citation:** [1985] 1 S.C.R. 216
- **Court:** Supreme Court of India
- **Decided:** 1984-07-27
- **Bench:** Tulzapurkar, V. Balakrishna Brad!, D.P. Madon
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prabodh-verma-and-others-etc-v-state-of-uttar-pradesh-and-others-etc-8677
- **Pages:** 52

## Headnote

Constitution of India-Arts. 32 and 226-Writ of certiorari-Nature of
-Writ of certiorari cannot he issued for declaring an Act or Ordinance as
unconstitutional and void-Can only be issued to direct iliferior courts, tribu-
"
na/.ii· or authorities to transmit to court the record of proceedings pending therein
for scrutiny and, if necessary, for quashing the same.
E
Advocates Act, 1961-Professional conduct-Duty of an advocate
10
'·
client and, to court- What it.
Uttar Pradesh Hi'gh Schools and Intermediate Colleges (Reserve Pool
Teachers) Ordinance, 1978 (U.P. Ordinance No. 10of1978) and Uttar Pradesh
High Schools and Intermediate Colleges (Reserve Pool Teachers) (Serond)
Ordinance, 1978 (U.P. Ordinance No. 22 of 1978)- Validity of-Whether
violative of Arts. 14 and 16(1) of the Constitution-Held valid.
Interpretation-Provisions of an Ordinance-Whether can be referred as
"section" end "sub-s~ction".
Procedure-.Write Petition under Art. 226 of the Constitution-Persons
likely to be affected by the judgment-Necessary parties-Whether High Court
G
should dismiss writ petition for non·joinder of necessary parties.
H
Practice-Court not to dismiss writ petition on a mere technicality-But
inust not condone every kind of laxity-Court n1ust insist on proper relief being
asked/or.
·
Words and phrases-•Act' and 'Enactnient'-Meaning of.
•
PRABODH VERM~ V. U.P. SfATE
217
The educational institutions in the State of Uttar Pradesh are governed
by the Intermediate Education Act, 1912 (U.P. Act No. Il of 1921). Section
16-E of the Intermediate Education Act prescribed the procedure for selection
of teachers and heads of institutions. Under sub-s. (1) of section 16-E, the
teachers of an institution are to be appointed by the Con1mittee of Manage·
rnent in the manner provided in the said Section. Jn 1977 there were about
80,000 secondary teachers of recognised institutions and institutions managed
by local bodies. Out ·or them about 60,000 teachers were members of a registered society na1nely, the Uttar Pradesh MadhYamik Shikshak Sangh (hereinaft~r referred to as "the Sangh"). On August 9, 1977 the Sangh submitted
a charter of demands to the State Government. As the Government did not
accept the demands, in response to a call given by the Sangh for an indefinite
strike about 90 per cent of the teachers in recognised ihstitutions went on an
indefinite
strike fron1
December 2, 1977.
As
the
service
under
a recognised educational
institution was
an essential service under
the Uttar Pradesh Essential Services Maintenance Act, 1966 (U.P. Act
No. XXX of 1966) the State Governmint on December 2~, 1977 made and
published an order under s. 3 (1) of that Act pro~ibiting strikes in service
under educational instituticns. Further, on December 31, 1977, the Governor
of'Uttar Pradesh promulgated the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees}
(Amendment) Ordinance, 1977 · (U.P. Ordinance No. 25 of 1977. The said
Ordinance amended s." 4 of the Uttar Pradesh High Schools and lntermediate
Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971
(U.P. Act No. 24 of 1971). The effect of the amendment was that the
Director of Education, Uttar Pradesh, could, by general or special order,
direct any teacher who went or remained on or otherwise took part in any
strike which had been prohibited by an order under s. 3 of the U.P. Essential
Services Maintenance Act to resume duty by the day or hour Specified in the
order and upon the failure of the teacher to resume duty in response thereto
his contract of employment with the n1anagement became void with effect
from the day or hour specified in the direction contained in such order. It was
also provided that the management or failing it the Inspector may notwithstanding anything to the contrary contained in the Intermediate Education Act,
1921 .• or the Regulations for the the time being in force with respect to the mode
of selection, appointment'

## Text

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216
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PRABODH VERMA AND OTHERS, ETC.
v.
STATE OF UTTAR PRADESH AND OTHERS, ETC.
July 27, 1984
[V.D, TULZAPURKAR, V. BALAKRISHNA BRAD! AND
D.P. MADON, JJ.]
Constitution of India-Arts. 32 and 226-Writ of certiorari-Nature of
-Writ of certiorari cannot he issued for declaring an Act or Ordinance as
unconstitutional and void-Can only be issued to direct iliferior courts, tribu-
"
na/.ii· or authorities to transmit to court the record of proceedings pending therein
for scrutiny and, if necessary, for quashing the same.
E
Advocates Act, 1961-Professional conduct-Duty of an advocate
10
'·
client and, to court- What it.
Uttar Pradesh Hi'gh Schools and Intermediate Colleges (Reserve Pool
Teachers) Ordinance, 1978 (U.P. Ordinance No. 10of1978) and Uttar Pradesh
High Schools and Intermediate Colleges (Reserve Pool Teachers) (Serond)
Ordinance, 1978 (U.P. Ordinance No. 22 of 1978)- Validity of-Whether
violative of Arts. 14 and 16(1) of the Constitution-Held valid.
Interpretation-Provisions of an Ordinance-Whether can be referred as
"section" end "sub-s~ction".
Procedure-.Write Petition under Art. 226 of the Constitution-Persons
likely to be affected by the judgment-Necessary parties-Whether High Court
G
should dismiss writ petition for non·joinder of necessary parties.
H
Practice-Court not to dismiss writ petition on a mere technicality-But
inust not condone every kind of laxity-Court n1ust insist on proper relief being
asked/or.
·
Words and phrases-•Act' and 'Enactnient'-Meaning of.
•
PRABODH VERM~ V. U.P. SfATE
217
The educational institutions in the State of Uttar Pradesh are governed
by the Intermediate Education Act, 1912 (U.P. Act No. Il of 1921). Section
16-E of the Intermediate Education Act prescribed the procedure for selection
of teachers and heads of institutions. Under sub-s. (1) of section 16-E, the
teachers of an institution are to be appointed by the Con1mittee of Manage·
rnent in the manner provided in the said Section. Jn 1977 there were about
80,000 secondary teachers of recognised institutions and institutions managed
by local bodies. Out ·or them about 60,000 teachers were members of a registered society na1nely, the Uttar Pradesh MadhYamik Shikshak Sangh (hereinaft~r referred to as "the Sangh"). On August 9, 1977 the Sangh submitted
a charter of demands to the State Government. As the Government did not
accept the demands, in response to a call given by the Sangh for an indefinite
strike about 90 per cent of the teachers in recognised ihstitutions went on an
indefinite
strike fron1
December 2, 1977.
As
the
service
under
a recognised educational
institution was
an essential service under
the Uttar Pradesh Essential Services Maintenance Act, 1966 (U.P. Act
No. XXX of 1966) the State Governmint on December 2~, 1977 made and
published an order under s. 3 (1) of that Act pro~ibiting strikes in service
under educational instituticns. Further, on December 31, 1977, the Governor
of'Uttar Pradesh promulgated the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees}
(Amendment) Ordinance, 1977 · (U.P. Ordinance No. 25 of 1977. The said
Ordinance amended s." 4 of the Uttar Pradesh High Schools and lntermediate
Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971
(U.P. Act No. 24 of 1971). The effect of the amendment was that the
Director of Education, Uttar Pradesh, could, by general or special order,
direct any teacher who went or remained on or otherwise took part in any
strike which had been prohibited by an order under s. 3 of the U.P. Essential
Services Maintenance Act to resume duty by the day or hour Specified in the
order and upon the failure of the teacher to resume duty in response thereto
his contract of employment with the n1anagement became void with effect
from the day or hour specified in the direction contained in such order. It was
also provided that the management or failing it the Inspector may notwithstanding anything to the contrary contained in the Intermediate Education Act,
1921 .• or the Regulations for the the time being in force with respect to the mode
of selection, appointment' or approval of appointment, be competent to appoint
on temporary bas:s any person possessing the requiste qualifications for discharging;:the duties of the post of any such teacher. By a notifica tior: issued on
the sa1ne date the Director of Education in pursuance of s. 4 of the U.P. Act
No. 24 of 1971 as amended by the said Ordinance No. 25 of 1917 directed the
teachers on strike or otherwise taking part in the strike prohibited under s.3
of the U.P. Essential Services Maintenance Act to resume duty by 11 A.M.
on January 5, 1978. A lagre number of teachers (2257) \\'ho had gone on
strike did not resume duty. Accordingly their contacts of employment
became void and in order to fill the posts, 2257 persons, including the appellants and petitioners before this Court, possessing the requisile qualifications
for discharging the duties of the post of such teachers were appointed on
temporary basis between January 9, 1978 and January 19, 1978. Thereafter a
settlement took place between the striking teachers and the the Government
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218
SUPREME COURT REPORTS
[1985) 1 s.c.R.
and the services of the said 27.57 newly appointed teachers were terminated
and the U.P. Ordinance No. 2S of 1917 wiS withdraWn by l~c-Gov~fnor.
On June 24, 1978 the Governor of UUar Pradesh promulgated the Uttar
Pradesh High Schools and Intermediate Colleges (Reserve· Pool Teachers
Ordinance, 1978) (U.P. Ordinance No. JO of 1978). . The Ordinance provided
for the absorption of certain teachers in the institutions recognised : under the
Jutermediate Education Act. 192i •. \Vhenever one of the provisions of U.P.
Ordinance No. 10 of 1978 referred to another provision thereof, it used the
word "section'' or "sub·section" and not .. clause" or "sub-clause". - Section
2 of U.P. Ordinance No. 10 of 1978 gave an overriding effect to the provisions
of that Ordinance notwithstanding anything. contained in thC Intermediate
. Edu.::ation Act or any other law for the time being in force. Section 4 of U .P.
Ordinance No. 10 of ·1978 was headed .. Absorption· of Reserve Pool
. Teachers·~. Sub·s. (1) of section 4 provided that the Inspector including any
other officer authorised by the Government to perform, all .or any of the run~
ctions of the Inspector should maintain in· the prescribed manner a register of
--"Res::rve Pool Teachers
0 consisting of persons who: were appointed .'as
· teachers in any recognised institution situated In· tne district: eithf:r. by the
management or by the Inspector· under sub·s. (4) Or section 4 of the U.P.
High ~chools and Intermediate ColJeges (Payment of Salaries of Teachers and
Other Employees) Act, 1971 while the said U.P. Ordinance No. 2S of 1977
was in force and who had actually joined their duties in pursuance of the said
-Provision between January 9, 1978 and January 19, 1978. Su!rs. (2) ofs~tion
4 of U.P. Ordinance No~ 10 of 1978 provided that where any substantive
vacancy in the post of a teacher in an institution recognized by the Board-was
to b.3 filled by dire::t recruitment, such post should at the instance of the
Inspector b~ offered by the management' to a teacher whose name was entered
in th: register referred to in sub·s. (1). Both before as_ well as aft.er the pro.
mulgation of U.P. OrdinanJe No. 10 of 1978 several vacancies occurred in
the post of teachers in recognized institutions which were to be filled by dir~ct
recruitment and for this purpose advertisements were given, application were
. received and applicants were called for interview.
MeanwhiJ.!, the Insp.!C·
tors of schools were given instructions to make, appointments in pursuance of
: Ordinance No. 10
of
1~78.
Pursuant
to
these
directions, . the
.
selections of the applicants were postponed .and some of the vacancies
'· were filled by appointing teachers from the reserve
po?l as provided
by
Ordinance . No •. JO of 1978.
The
U.P •. Ordinance No.
10
of 1978 could not be made into an Act.
Under Article 213 (2) (a) of the
-- c~nstitution-. U.P. Ordinance No. 10 of 1978 would have therefore ceased
-to operalo'on or about October 17, 1978.
Meanwhile,· on 'October 7,
1978
the Governor of Uttar Pradesh promulgated the .iUttar Pradesh
High Schools and 'Intermediate Colleges (Reserve Pool Teachers) -(Second)
Ordinance, 1978 (U.P. Ordinance No. 22 of 1978).
U.P. Ordinance No.
22 of· 1978 repealed U.P. -ordinance No. 10 of 1978 and was given
·retrospective ;effect on and from June 24, 1978 (the date ofU.P. Ordi·
nance No. 10 of 1978), and it was also provided that notwithstanding
the repeal of U.P. Ordinance No. 10 of 1918, anything done or any action
taken under that Ordinance should be deemed to hav~ been done or taken
under U.P. Ordinance No. 22 _or 1978 as ir that Ordinance was in fore
•
,
at all meterial times.
which like the U .P.
PRABODH v. U. P. STATE
219
The provisions of U.P. Ordinance No. 22 of 1978,
Ordinance No. 10 of 1978 while referring to the
Provisions also used the word "section,, or· "sub~section", were in pari
materia with those of U.P. O:dinance No. ·10 of 1978.
In pursuance of
U.P. Ordinance No. 22 of 1·978, directions were issued by the Secretary,
Education Department, Government of U.P. by a telex
message
dated
October 18, 1978, and in pursut!nce thereof by the Additional Dirccler of
Education, U.P. by a telex message dated October 19, 1978, to fill the
vacancies by making appointments from the reserve pool in·accordance
with the provisions of U.P. Ordinance No. 22 cf 1978.
Thereafter some
more teachers from the reserve pool were appointed to the posts which had
fallen vacant and which were to be fi11ed by direct recruitment.
Thereupon
the Sangh along with some of the applicants for the vacant posts filed
writ petition in th.e High Court (Civil Miscellaneous Writ No. 9174 of
1918-Uttar p, ade· h Madhya1nik Shikshak Sangh and Ors. v. Stat.: of Ultar
Prade.•h and Ors.) praying for a writ, order or direction in the nature of
Certiorari to call for record of the case and to quash U.P. Ordinance No.
22 of 1978 and the said telex n1cssages.
In the said writ petition the
reserve pool teachers who had been appointed and were likely to be affected
if the judgment of the·High Court was in favour of the petitioners, were
not joined as parties to the writ petition.
The High Court held that U.P.
Ordinance No. 22 c' '918 violated the provisions of Articles 14 and 16(1)
of the Constitution <JDd accordingly declared the Ordinance to be void and
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qua5bed the said telex messages. ·The State Government did not appeal
E
against the judgment of the High Court but issued instructions to the effect
that the services of the teachers appointed from the
res~rve pool could
not be continued further and that the posts should be filled a fresh by the
process of direct recruitment and that no fresh appointment should be made
from the reserve pool and no special weightage shouid be given to teachers
in the reserve pool in the matter of future appoinments.
Several teachers
P
from the reserve pool whose services were so terminated filed writ petitions
in the High Court contending that tbe termination of their services was
illegal inasmuch as in respect of those who were appointr.d under U .P.
.
'
Ordinaqce No. 22 of 1978, they were not parties to the Saagb's petitions
and, therefore, the judgment in that case was not binding upon them and
that in the case of those who were appointed under U.P. Ordinance No.- 10
of 1978, that this Ordinance had not been declared ¥oid by the High Court.
They also contended that the termination of their services was
illegal
iriasmuch as the procedure prescribed by s. 16~0 (3) of the Intermediate
Education Act had not been followed.
Dismissing the writ petition, the
High Court Peld that those petitioners who were appointed under U.P.
Ordinance No. IO of 1978 must be deemed to have been appointed under
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220
~UPREME COURT REPORTS
(1985] J S.C.R.
U.P. Ordinance No. 22 of 1978 and as l,J.P. Ordinance No. 22 or 1978
had been declared by the High Court to be unconstitutio.1al, the appoint·
meats of the petitioners were bad ab btitio, ands. 16-G (3) of the Intcrmedi::ite Education Act was not attracted.
1-Iencc these appeals by special
leave and writ petitions by the reserve pool teachers whose services were
tenninated as a result of the judgment of the High Court in the Saogh's
case.
Allowing the appeals and the writ petitions,
HELD : (I) A High Court ough: not to hear and dispose of a writ
petition under Articte 226 of the Constitution without the persons who
would 1:-e vitally affected by its judgment being before it as respondents or
at least some of them being before it as respondents in a
representative
capacity if their number is too large to join them as respondents individual!y, and, if the petitioners refuse to so join the1n, the High Court
ought to dismiss the> petition for non-joinder of necessary parties. [261F-G]
(2)
In tb~ instant case the High Court ought not to_ have proceeded
to hear and dispose of Civil Miscellaneous Writ No. 9 !74 of 1918-Uttar
Pradesh Madhyamik Shikshak Sangh and Others v. State of Uttar Pradesh
arid Others-without insisting upon the reserve pool teachers being made
respondents to that writ petition or atleast some of them being made
respondents there to in a representative capacity as the number of the reserve
E
pool teachers was too large ar.d, had the petitioners refused to do so, to
dismiss that writ petition for non-joinder of necessary parties. [261 ll; 262A]
(3)
A writ of certiorari or a.writ in the nature of c.-;rtiorari cannot
be issued for declaring an Act or an Ordinance as unconstitutional or void.
A writ of certiorari or a writ in lhe nature of certiorari can only be issued
F
by the Supreme Court under Article l Z of the Constitution and a High
Court under Article 2Z6 of the Constitution to direct
inferior
courts,
•
•
tribunals or authorities to transmit to the court the record of Proceedings pen·
..
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H
ding therein for scrutiny and, if necessary, for quashing the &ame.
[262B·C]
"A New Abridgement of the Law" by Mattew Bacon. Seventh Edition,
Volume JI at pages 9 and 1 O. 'Hahbury's Laws of England, Foruth Edition.
Volume I, para 80, R. v. Glamorganshire Inhabitants, [1700] 1 Ld. Raym.
580, Groenvelt v. Burtt ell, [1700] I Ld. Raym. 454, Dwarkanath, Hindu
Undivided Family v. Income Tax Officer, Special Circle, Kapur andanothet,
[1965] 3 SCR 536, 540-41 and Udit Narain Singh Malpaharia v. Additional
Member, Board of Revenue, Bihar, [196l] Suppl. I S.C.R. 676, 286,
referred to.
•
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PRABODH l'· U. P. STATE
221
(4)
Where it is a petitioner's contention that ao Act or Ordinnnce
A
is unconstitutional or void, the proper relief for the petitioners to ask
is a declaration to that effect and if it is necessary, or thought necessary to
ask for a consequential relief, to a~k for a writ of n1andan1us or a writ
in the nature of mandamus or a direction, order or injuction restraining the
concerned State and its officers from enforcing or giving
effect to the
provisions of that Act or Ordinance. [262D]
B
Dwarkanath, Hindu Undivided FamiJ:· v. Income Tax Officer, Special
Circle, Kanpur and another. [1965] 3 S.C.R. 536, 540.41, referred to.
(5)
Though neither this Court nor any High Courts shou!d dismiss
a writ petition on a n1ere technicality or because a proper relief has not
been asked for, it should not, therefore_, condone every kind of laxity,
particularly where the petitioner is represented by an advocate. {262E]
(6)
An advocate owes a duty to his client as well as to the court-a
duty to his client to give of his best to the case which he has undertaken
to conduct for his client <ind a duty to assist the court to the utmost of his
skill and ability in the proper and satisfactory administration of Justice.
An advocate should not measure the quality of work he will put into a
case by the quantum of fees he.receives. In our system of administration of
the courts have a right to receive assist<ince the Bar and it is the duty of
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the advocate who drafts a writ petition or any other pleading to ask for
E
appropriate relief.. [2SOA·C]
(7)
Laxity in drafting all types of pleading's, is becoming the rule
and a well-drafted pleading, an exception.
An ill-drafted pleading is an
offspring of the union of carelessness wllh
imprecise thinking and its
brothers are slipshod preparation of the case aPd rambling and irrelevant
arguments leading to waste of time which the courts can ill afford by rea~on
of their overcrowded dockets. [2SIE]
( 8)
In the instant case, the High Court ought not to have proceeded
to hear and dispose of the said Civil Miscellaneous Writ No. 9174 of 1978
without insisting upon the petitioners amending the said writ petition and
praying for proper reliefs. [262F]
(9)
The word £enactmen't' does not mean the same thing as •Act.'
Act means the whole Act, whereas a section or part of a section may be
an enactment. [2350)
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.The Wakefield and Dis~rr'ct Light Railways Company v. The Wakeff
222
SUPREME COURT REPORTS
[1985) ! S.C.R
A
field Corporation, [1906] 2 K.B. 140, 145-6. affirmed in [1907) 2 K.B. 256,
referred to.
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(I 0)
By reason of the provisions of section 30 of the General
Clauses Act, 1897, read with clauses (54) and (61) of section 3 thereof,
it would not be wrong phraseology, though it may souJd inele2ent, to refer
to a provision of an Ordinaa~J promu!g.lted by the presiJent under Article
123 of the Constitution or prior to the coming into force of the Constitutio:a of India, by the Governer·General under the Indian Council Act,
1961, or the Government of India Act, 1915, or the Government of India
Act, 1835, as ''section" and to a sub-division of a section, numbered in
round brackets, as "sub-s~ction". [262G-H]
Craies on Statute Luw, 7th ed., p. 217. Coke in "The lnstit1Ues of 1he
Laws of England".
Part IV at page 24, and State of Maharashtra v. Kusum
Charudutt Bharma Upadhye, [1981] 83 Bomb1y Law Reporler 75, 95 S B.
referred to.
(11)
Simil<irly, by reason of the prov1s1ons of section 30
of the
Uttar Pradesh General Chus;s. Act, L904, reud with clauses (40) and (43)
of section 4 thereof, it would not be wrong _phraseology, though it may
sound inelegant, to refer to a provision of an Ordinance promulgated by
the Governor of Uttar Pradesh under Article 213 of the Constitution or
E
prior to the coming into force of the Ccnstitution of India, by the Governor
of the United Provinces under the Government of India Act, 1935, as
''section" and to a sub-division of a section,. numbered in round brackets
as usub-section". [263A-B]
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( 12)
Article 14 of the Constitution guarantees to all persons equality
befOre law.
Clause (I) of Art. 16 guarantees equality of opportunity for
all citizens in matters relating to employment or appointment to any office
under the State.
Thus Article 16 is ao instance of the application of
the general rule of equality laid down io Article {4.
Article 14, however,
does not for-bid classification. The classification to be valid must be rounded
on an intelligible differentia which distinguishes those that are grouped togethc~ from others and the differentia must have a rational nexus or relationM
ship to the object sought to be achieved by the legislation. [25JB; D; P]
Banarsl Dass and others v. The State of Uttar Pradesh and olhers,
[1956] S.C.R. 357, 36i and In re. The Special Courts Bill, 1978, [1979] 2
S.C.R. 4745, 535, referred to.
(13)
I~ the instaqt case, neither the Uttar fra4esQ Hi~h Schools aoct
'
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PRABODH \', U. P. STATE
223
Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. No.
A
Ordinance 10 of 1978), nor the Uttar Pradesh High Schools anJ Intermediate
Col1eges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U.P. Ordinance
No. 22 of 1978), infringed Article 14 or Article 16(1) of, the ConstHution
or wa~ unconstitutional or void.
[~63C-D]
( 14)
The reserve pool teachers formed a separate and distinct class
B
from other applicants for the posts of teachers in recognized institutions •
[263D]
•
(15)
The differe11tia which distinguished ·the class of reserve pool
teachers from ihe class of other 'applicants for the posts of teachers in
recognized institutions was the service rendered by the reserve pool teachers
C
to the State <ind its educational system in a time of crisis. [263E]
( l 6)
The above differentia bore a reasonable and rational nexus
or relation to fbe object sought to be achieved by U.P. Ordinances Nos.
10 and 22 of 1978 read with the Intermediate Education Act, 1921,
namely, to keep the system of High School and Intermediate Education in
the State of Uttar Pradesh functioning smoothly without interruption so
that the stuclents may not suffer a detriment. [263F·G]
( 17)
The preferential treatment in the matter of recruitment to
posts of teachers in the recognised institutions was, theirfore, not discrimi~
natory and did 03t offend Article 14 of the Constitution. [263H]
(18)
As the above two classes were not similarly circumstanced,
there could be no question of these classes of persons being entitled to
equality Of opportunity in matters relating to employment guaranteed by
•
Article 16(1) of the Constitution and the preferential treatment ,given to
the reserve pool teachers was therefore, not violative of Articl~ 16(1) of
D
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the Constitution [263H; 264A]
F
(19)
The case of Uttar Pradesh Madhyamik Shikshak Sangh and others,
v. State of Uttar Pradesh and 01hers was wrongly decided by the Allahabad
High Court and requires to be overruled- [2648]
l.lttar Pradesh Madhyamic Shikshak Sangh and Others v. Slate of Uttar
G
Pradesh and Others, [1979] Allahabad Law Jour.1al 178, overruled.
· (20)
The termination of the services of the reserve pool teachers
/
.
.
,. ... following upon the judgment of the High Court was contrary to law and
the order datl'd May 21, 1979, of the Government of Uttar Pradesh and
the order dated May 29, 1979. of the Additional Director of Education,
Uttar Pradesh, were a !so bad in law. r264C]
J~
I
SUPREME COURT REPORTS
[[935) 1 S.C.R,
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(21)
Each of the reserve pool teachers bad a right under Up,
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Ordinance No. 10 of 197? as also under U·P. Ordinance No. 22 of 1978 to
be appointed lo a ~ubstantive vncancy occurring in the post of a teacher in a
recognized institution which was to be filled by direct recruitment. [264D]
(22)
Each of the reserve
pool teachers who had already been
appointed and was contiii,uing in service b:y reason of the stay orders passed
either by the High Court or by this Court is entitled to continue in service
and to be cOnfirmed in the post to which he or she was appointed with
effect from lhe date on which he or she WC'Uld have been confirmed in the
normal and usual course. [264E-F}
'
.
(23)
Where a court has passed an interim order which has resulted
in an injustice, it is bound at the time of the passi11g
of the final order,
if it takes a different view at tho.t time, to undo that injustice as far as it
lies within its power.
Similarly, where an injustice has been done by the
final order of a court, the supei:ior court, if it takes a different view, must,
as far as lies within its power, seek to undo that injustice.
(24) Those reserve pool teachers who were not appointed as provided
by U.P. Ordinance No. 10 of 1978 or U.P. Ordinance No. 22 of 1978
were not so appointed because of the intcri1n orders passed by the High
Court and the judgment of the High Court in the Sangh's case.
In view
of the fact that this Court has held thai the Sangh's case was wrongly
decided by the High Court, the injustice done to t, ese reserve pool teachers
requires to be undone. [264G)
(25)
Jn view of the fact that the vacancies to which these reserve
pool teacflcrs would have been appointed have already been filled and in
all likelihood those so appointed have been confirmed in their posts, to
appoint these reserve pool teachers with effect from any retrospective date
"v.,ould be to thrO\V out the present incombents from their jobs for no fault
of theirs.
It will, therefore, be in consonance with justice and equity and
fair to all parties concerned i.f the remaining reserve pool teachers are
appointed in accordance with' the provisions of U.P. Ordinance No. 22 of
1978 to substantive vacancies occurring in the posts of teachers in recog.
nized institu!ions which are to be 6.1 lcd by direct recruitment as and when
each such vacancy occurs. [264H; 265A-B]
(26)
This' will equally apply to tb()se reserve pool teachers whose
services were tei minated anrl who had not filed any writ petition or who
bad filed a writ petition but had not succeeded in obtaining a stay order •. ~
as also to those reserve pool teachers who had not been appointed in vie~
of the interim orders passed by the High Court and thereafter by reason
of the judgment of the High Court i~ the San~h's c;:as~ aqd whQ h ~vc qot
jiled any writ petition.:[26SC·D)
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CIVJL APPELLATE JURISDICTION : Civil Appeals Nos. 694, 909,
911, 912, 2307 of 1980, 2931-32 of 1979 and 4 of 1981.
Appeals by Special leave from the Judgments and Orders dated
tQ.e !Ith September, 1979 and !st August, 1979 of the Allahabad
High Court in Civil Misc. P. Nos. Nil, 7045, 7043, 7039, Nil, 7042,
7046 and 4047 of 1979.
With
Writ Petitions Nos. 1221-29,
1235, 1340-41,
1498, 1572,
1681-82 of 1979, 22, 203, 363 of 1980, 1687, 434 of 1981.
9065,
9863, 10773·76 of 1983.
(Under Article 32 ofthe Constitution.of India)
T.U. Mehta, S.K. Sabharwal and D.R. Gupta for the Appel-
!ants in CA. No. 694 of 1980.
Shanti Bhushan and S.S. Jauhar for the Appellants in CA.
Nos. 2931-32 of 1979.
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D,R. Gupta and P.K. Chakravarty for the Appellants in CA.
Nos. 909, 91 I. 912 of 1980 and 2307 of 1980.
A.
B.
C,
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D.R. Gupta, P.K. Chakravarty and S.S. Jauhar for the Petitioners in W.P. Nos. 1221-1229, 1340-41, 1681-82, 2931-32 of
E
1979.
Anit Dev Singh and S.K. Sabharwa/ for · the Petitioners in
WP. No. 1235 of 1979.
Gopal Subrarnaniurn and Mrs. Shobha Dikshit for •the ResponF
dent (State of U.P.)
R K. Garg, R.K. Jain and P.K. Jain for Respondent.
E.C. Aggarwa/a and M.M. Srivastava for Respondent No. 12.
Meera Agarwal and R.C. Misra for Respondent Nos. 8 and 4
(In CA. No. 912 of'l980 and W.P. No. 4334 of 1980.
Shivpujan Singh for the Appellant in CA. 4 of 81.
S. Markandeya for Respondents I to 7 in CA. 4/81.
R.K. Jain, Ravi Prakash Gupta and R.P. Singh for Respondent
No. 12 in CA. 4 of 1981.
The Judgment of the Court was de]ivered by
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SUPREME COURT REPORTS
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MADON J. The principal question which arises for determination in this group of Appeals by Special Leave ·and Writ
Petitions is the constitutional validity of two· Uttar Pradesh
Ordinances, namely; (I} the Uttar Pradesh High Schools and
Intermediate Colleges (Reserve Pool Teachers) Ordinance, 197.8
(U.P. Ordinance No. 10 of 1978), and (2) its successor OrdinanceThe Uttar Pradesh High
Schools and Intermediate Colleges
(Reserve Pool Teachers) (Second) Ordinance, 1978 (UP, Ordinance
No. 22 of 1978), which had been struck down by a Division Bench
of the Allahabad High Court by its judgment delivered on
December 22, 1978, in Civil Miscellaneoas Writ No 9174 of 1978Uttar Pradesh Madhyamik Shikshak Sangh and Others v. ,State of
Uttar Pradesh and Others11l on the ground that its provisions were
violative of Articles 14 and 16(1) of the Constitution, of India; the
subsidiary questions being whether the termination of the services
of the Appellants and Petitioners as secondary school teachers and
intermediate college lecturers following upon the said Allahabad
High Court judgment is valid and if not, the reliefs to which they
are entitled.
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We will first set out the circumstances which led to the promulgation of the above two Ordinances and then narrate the events
subsequent thereto.
The educational institutions in the State of Uttar Pradesh
teaching upto the high school and intermediate classes fall into
three categories, namely,
(I) institutions managed and conducted by the Centrai'
Government ;
(2)
institutions managed and conducted by the State Government and local bodies ; and
. (3)
institutions managed and conducted by private management.
The service conditions of the teachers in these three categories of institutions are governed by different statutes. We are
concerned in these Appeals and Petitions with only the teachers
falling in the third category mentioned above. These institutions
are governed by the Intermediate E<)ucation Act, 1921 (U.P. Ac\
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(I) [1979) A.L.J. !78
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PRABODH VERMA v. U.P. STATE (Madon, J.)
227
No. II of 1921).
Clause (b) of section 2 of the Intermediate
Education Act defines an 'institution' as meaning "a recognised
Intermediate College, Higher Secondary School or High School,
and includes, where the context so.requires, a part of an institution". Section 3 provides for the constitution of a Board, called
th.e Board of High School and Intermediate Education. Section 7
prescribes the powers of the Board which inter alia include the
power to prescribe the courses of instruction and text-books, to
conduct examinations at the end of High School and Intermediate
courses and to recognize institutions for the purposes of such
examinations. Under section 7-A, an order of the Board giving
recognition to an institution
for the first time or in any
new subject or Board group or for• a higher class is not to
have effect until it is approved by the State Government. Section
15 confers upon the Board the power to make Regulations inter
alia providing for the c0nditions of recognitions of institutions.
Regulations made by the Board under section 15 are required to
be made with the previous sanction of the State Government and
to be published in the Uttar Pradesh Official Gazette.
All the institutions falling in the third category mentioned
above and with which we are concerned in these Appeals and
Petitions are recognized under the Intermediate Education Act.
Section 16-A of the Intermediate ·Education Act requires a Scheme
of Administration to be framed for every recognized institution.
The Scheme of Administration of every institution is to be subject
to the approval of the Director of Education, Uttar Pradesh. A
Scheme of Administration is amongsCother matters to provide for
the constitution of a Committee of Management vested with
authority to manage and conduct the affairs of the institution.
·Under sub-section (6) of section 16-A, every recognized institution
is to be managed in accordance with its Scheme of Administration.
Section 16-E of the Intermediate Education Act prescribes
the procedure for selection of teachers and heads of institutions.
Under sub-section{!) of 16-E, the head of institution and teachers
of an institution are to be_ appointed by the Committee of Management in the manner provided in the said section. Under sub-section
(2), every post of head of institution or teacher of an institution is
except to the extent prescribed by the Regulations for being filled
by promotion, to be filled by direct recruitment after intimation
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SUPREME COUR r REP OR TS
[1985] 1 s.c.R.
of the vacancy to the Inspector which term is defined by clause (bb)
of section 2 as meaning "the District Inspector of Schools, and in
relation to an institution for girls, the Regional lnspectress of
Girls' Schools, as the case !Ilay be, and in each case includes an
officer authorised by the State Government to perform all or any
of the functions of the Inspector" under the Intermediate Education
Act.After intimation of the vacancy to the Inspector, advertisement
of the vacancy, containing such particulars, as may be prescribed
by the Regulations, is to be published in at least two newspapers
having adequate circulation in the State. Sub-section (3) prohi·
bits any person from being appointed as head of institution or
teacher in an institution unless he possesses the minimum quaJifi.
cations prescribed by the Regulations.
Under the proviso to that
sub·section, a person who does not possess such qualifications
may be appointed if he has been granted exemption by the Board
having regard to his education, experience and other attainments.
Under sub-section 14), applications in pursuance of the advertise·
ments published as aforesaid are to be made to the Inspector,
Sub·sections !5) io (10) of the said section 16-E provide as follows:
"(5) (i) After the receipt of applications under sub·
section (4), the Inspector shall cause to be awarded, in
respect of each such applications, quali ty·point marks in
accordance with the procedure and principles prescribed
and shall thereafter, forward
the applications to the
Committee of management.
(ii) The applications shall be dealt with the candidates shall be called for interview, and the meeting of the
Selection Committee shall be held, in accordance with the
Regulations.
(6) The Selection .'.ommittee shall prepare a list con·
taining in order of preference the names, as far as pre·
practicable, of three candidates for each post found by
it. to be suitable for appointment and shall communicate
its recommendations together with such list to the Co·
mmittee of Management.
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(7) Subject to the provisions of sub-section (8), the
Committee of Management shall, on receipt of . the
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PkABODH VERMA v. V.P. STATE (Madon, J.)
recommendations of the Selection Committee under subsection (6), first offer appointment to the candidate given
the first preference by the Selection Committee, and on
his failure to join the post, to the candidate next to him
in the'list prepared by the Selection Committee under
this section, and on the failure of such candidate also, to
the last candidate specified in such list.
(8) The Committee of Management shall, where it
does not agree with the recommendations of the Selection
Committee, refer the matter together with the reasons
of such disagreement to the Regional Deputy Director
of Education in the case of appointment to the post of
Head of Institution and to the Inspector in the case of
appointment to the post of teacher of an institution, and
his decision shall be final.
(9) Where no candidate approved by the Selection
Committee for appointment is available, a fresh selection
shall be held in the manner laid down in this section.
(10) Where t.he State Government, in case of the
appointment of Head of Institution, and the Director in
the case of the appointment of teacher of an insti·
tution, is satisfied that any person has been appointed
as Head of Institution or teacher, as the case may be, in
contravention of the provisions of this Act, the State
Government or, as the case may be, the Director may,
after affording on apportunity of being heard to such
person cancel such appointment and pass such consequen·
tial order as may be necessary."
229
Section 16-F provides for the constitution and composition of
two'Selection Committees, one for the appointment of the head of
an institntion and the other for the appointment of a teacher in an
institution.
The only other section which needs be referred to is section
16-G. Section 16-G provides for the conditions of service of heads
of institutions, teachers and other employees. Under sub-section
(I), every person employed in a recognized institution is to be gover0
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SuPREME COURT REPORTS
[1985] l S.C.R.
ned Regulations. Any by such conditions of service as may be pres·
cribed by the regulations. Any agreement between the management
and such employee in so far as it is inconsistent with the provisions
of the Intermediate Education Act or the Regulations is to be void.
Under sub-section (2), • without prejudice to the generality of the
powers conferred by sub-section (l), the Regulations may, inter alia,
provide for the p~riod of probation, the conditions of confirmation,
the scales of pay and payment of salary.
Under sub-section (3), no
principal, headmaster or teacher can be discharged or removed or
dismissed from service or reduced in rank or subjected to dimi·
nution in emoluments or served with a notice of termination of service except with the prior approval in writing of the Inspector. The
Inspector has the power either to approve or disapprove or
reduce .or enhance the punishment or approve or disapprove of
the notice of termination of service proposed by the management.
A right of appeal to the Regional Deputy Director, Education,
is provided to any party aggrieved by an order of the Inspector.
l__~ In 1977 there were about 8'J,OOO secondary teachers of
recognized institutions and institutions nunaged by local bodies'.
Out of tilem about 6~,0JJ teachers were members of a registered
society, namely, the Uttar Pradesh Madhyamik Shikshak Sangh
(hereinafter reforred to as "the Sangh"1, the First Petitioner in
the said Civil Miscellaneous Writ No. 9174 of 1978 in the
: Allahabad High Court and one of the Respondents in the Appeals
and Petitions before us.
On August 9, 1977, the Sangh submitted
a charter of twenty-seven demands to the State Government.
The Government refused to accept any of the- said demands. We
are not concerned in these Appeals and Petitions with the question
whether these demands or any of them were
reasonable or not,
nor with the question whether the refusal of the Government
to accept the said demands or any of them was justified or not. As
the Government did not accept the said dem~nds, the Sangh gave
and a call for an indefinite strike commencing from December 2,
1977, in response to the said cail about 90 per cent of the teachers
in recognized institutions went on an definite strike from December
2, 1977.
Under the Uttar Pradesh Essential Services Maintenance Act,
1966 (U.P. Act No. XXX-of 1966), service in certain educational
H
institutions is an essential service. Sub-clause (ii) of caluse (a) of
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PRAeooii VERMA v. u.P. STATE (Madon, J.)
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231
section 2 of that Act, as it stood· at the relevant time, defined
A
"essential service" as meaning inter a/ia-
"any service under an educational institution recognised.
by the Director of Educition, Uttar Pradesh, or by the
Board of High School and Intermediate Education,
B
Uttar Pradesh, or service under a Universitity incorporated by or under an Uttar Pradesh Act.
Sub-section (l) of section 3 of that Act confers upon the State
Government the power, by general or special order, to prohibit
strikes in any essential service specified in the order if the State
Government is satisfied that in the public interest it is necessary
or expendient to do so.
Under sub-section (2) of section 3, such
order is to be published in such manner as the State-Government
considers best calculated to bring the order to th(> notice of the
persons affected by it.
Under sub-section (4) of section 3, during
the period of the operation of such an· order any strike by persons
employed in anf eisential service to which the order relates is •
illegal, whether such strike is declared or commenced before or
after the commencement of the order.
Under section 4 of that
Act, any person who commences a strike which is illegal under
that Act or goes or remains on or otherwise takes part in any
such strike becomes liable to impri,onment for a term which may
extend to six months or with fine which may extend to five
~undred rupees or with both and, under section 7, any police
officer may arrest without warrant any person who is reasonably
suspected of having committed any offence punishable under that
Act. By a notification dated December 24, 1977, the State Government made and published an order under section 3(1) of that Act
prohibiting 3trikes in service under educational institution.