- (1.) The teachers in the High School and Intermediate College in the State of U. P. went on strike from 22/12/1977. The government issued a notification under the U. P. Essential Services Maintenance Act, declaring the strike illegal and calling upon the striking teachers to resume their duties on or before 5/1/1978. Against this notification, the striking teachers approached the High court by a writ petition and the High court extended the time for resumption of duties to 9/1/1978. It appears that by that date, all teachers except 2257 of them resumed their duties. During the interval between 9/1/1978 and 19-1-1978 on which date the remaining 2257 teachers also resumed the duties, some teachers like the appellants in the present case, were recruited. After the resumption of the services by all the teachers, the services of the teachers like the appellants were terminated. Subsequently, the government issued an Ordinance on 24/6/1978 creating a reserve pool of teachers like the appellants. The Ordinance provided that the teachers from the reserve pool would be appointed to the substantive vacancies which may occur anywhere in the State and unless all the teachers in the reserve pool were appointed, others would not be appointed or promoted to the relevant posts.
(2.) Against this Ordinance creating the reserve pool, the association of the teachers in service, viz. , U. P. Madhyamik Shikshak Sangh approached the High court by way of a writ petition and the High court by its judgment of 22/12/1978 struck down the Ordinance as being discriminatory and violative of the rights of the regular teachers. Against the said decision, the teachers in the reserve pool preferred various appeals as well as writ petitions in this court which were decided by this court by a common judgment delivered on 27/7/1984 in Prabodh Verma v. State of U. P. This judgment took stock of all the events which had occurred ever since the strike and in particular of the fact that during the period between the date of the termination of the services of the reserve pool teachers pursuant to the decision of the High court on 22/12/1978 and the date of the said decision of this court on 27/7/1984, several teachers were appointed in the substantive vacancies and some of them were also confirmed. Hence although this court set aside the decision of the High court and held that the Ordinance creating the reserve pool of teachers was valid, while granting relief to the appellants/petitioners whose services were illegally terminated, the court observed and moulded the relief as follows:"48. The record is not clear whether U. P. Ordinance No. 22 of 1978 was in fact withdrawn by the governor under Article 213 (2 (b) of the Constitution nor has any notification to that effect been brought to our notice. It is, however, unnecessary to consider the above submissions as, in our opinion, it is immaterial whether U. P. Ordinance No. 22 of 1978 was withdrawn by the governor or had ceased to operate because, according to us, what is involved here is a far more vital and important principle. Undoubtedly, a teacher in the reserve pool had a right under U. P. Ordinance No. 10 of 1978 as also under U. P. Ordinance No. 22 of 1978 to be appointed to a substantive vacancy occurring in the post of a teacher in a recognised institution which was to be filled by direct recruitment. The Explanation to Section 4 of both the Ordinances is not relevant for this purpose for all that was provided by it was that no teacher in the reserve pool was entitled to claim an appointment to a post which he had joined during the period of the strike or to any post carrying the same or a higher grade. What this Explanation meant was that no reserve pool teacher could claim that he should be appointed to the identical post which he had held during the period of the strike or to such post either in the same recognised institution or in any other recognised institution whether it carried the same grade or a higher grade. What is required to be noted is that the right which these teachers had under Ordinance No. 10 of 1978 continued under U. P. Ordinance No. 22 of 1978 because that Ordinance came into force with retrospective effect from 24/6/1978, that is, the date on which U. P. Ordinance No. 10 of 1978 was promulgated and by Section 8 of U. P. Ordinance No. 22 of 1978 which repealed U. P. Ordinance No. 10 of 1978 it was expressly provided that anything done or any action taken under U. P. Ordinance No. 10 of 1978 should be deemed to have been done or taken under U. P. Ordinance No. 22 of 1978 as if U. P. Ordinance No. 22 of 1978 were in force at all material times. The register of reserve pool teachers maintained under U. P. Ordinance No. 10 of 1978 must, therefore, be deemed to be a register of reserve pool teachers to be maintained under U. P. Ordinance No. 22 of 1978. As appears from the judgment of the High court in the Sangh case , as against 2257 reserve pool teachers there were at that time 2740 substantive vacancies in recognised institutions. These vacancies were required to be filled by direct recruitment. This fact is not disputed before us. But for the orders of the High court, all reserve pool teachers would, therefore, have been appointed in accordance with the provisions of either U. P. Ordinance No. 10 of 1978 or U. P. Ordinance No. 22 of 1978. They could not be so appointed by reason of the interim orders passed by the Allahabad High court and the judgment of that High court in the Sangh case. Where a court has passed an interim order which has resulted in an injustice, it is bound at the time of the passing of the final order, if it takes a different view at that time, to undo that injustice as far as it lies within its power. Similarly, where an injustice has been done by the final order of a court, the superior court, if it takes a different view, must, as far as lies within its power, seek to undo that injustice. Great prejudice has been suffered and injustice done to those reserve pool teachers who had not been appointed to substantive vacancies which had occurred in the posts requiring to be filled by direct recruitment. Since we have held that thesangh case was wrongly decided, it is our duty to undo this injustice. There are, however, certain difficulties in directing these teachers to be appointed from the dates on which they would have been respectively appointed but for the orders of the High court because those vacancies have already been filled and in all likelihood those so appointed have been confirmed in their posts and ought not to be now thrown out therefrom for no fault of theirs. In view of this fact, we feel that it would be in consonance with justice and equity and fair to all parties concerned if the remaining teachers in the reserve pool are appointed in accordance with the provisions of U. P. Ordinance No. 22 of 1978 to substantive vacancies in the posts of teachers in recognised institutions which are required to be filled by direct recruitment as and when each such vacancy occurs. 49. What we have said above will apply equally to those reserve pool teachers whose services were terminated and who had not filed any writ petition or who had filed a writ petition but had not succeeded in obtaining the stay order as also to those reserve pool teachers who had not been appointed in view of the interim orders passed by the High court and thereafter by reason of the judgment of the High court in the Sangh case and who have not filed any writ petition. 50. To summarize our conclusions: (L) -19 * * * (20 In view of the fact that the vacancies to which these reserve pool teachers would have been appointed have already been filled and in all likelihood those so appointed have been confirmed in their posts, to appoint these reserve pool teachers with effect from any retrospective date would be to throw out the present incumbents from their jobs for no fault of theirs. It will, therefore, be in consonance with justice and equity and fair to all parties concerned if the remaining reserve pool teachers are appointed in accordance with the provisions of U. P. Ordinance No. 22 of 1978 to substantive vacancies occurring in the post of teachers in recognised institutions which are to be filled by direct recruitment as and when each such vacancy occurs. (21 This will equally apply to those reserve pool teachers whose services were terminated and who had not filed any writ petition or who had filed a writ petition but had not succeeded in obtaining a stay order, as also to those reserve pool teachers who had not been appointed in view of the interim orders passed by the High court and thereafter by reason of the judgment of the High court in the Sangh case and who have not filed any writ petition. "
(3.) From a reading of the aforesaid observations and conclusions in paragraphs 48, 49 and 50 (20, 50 (21, it is clear that this court tried to adjust the equities between the two sets of teachers, viz. , the reserve pool teachers and those who were appointed in their place during the period between 22/12/1978 and 27/7/1984, it gave a clear direction that those who were appointed during the said period, were not to be disturbed by appointing in their place the reserve pool teachers, even if their services were illegally terminated pursuant to the decision of the High court. An exception, however, was made in the case of those reserve pool teachers who were continuing in service on the date of the decision of this court.;