K. N. Goyal, J. - (1.) WE have heard the learned counsel for the parties.
(2.) A post of Lecturer in Urdu in an Intermediate College has fallen vacant with effect from 1-7-1983. The Management has appointed opposite party No. 4 by way of ad hoc promotion. The petitioner has come to this Court under Article 226 of the Constitution, contending that it is he who was entitled to ad hoc promotion as he alone was eligible while opposite party no. 4 was not eligible because the latter had not put in 5 years experience of teaching in the subject concerned. This contention was based on the original Rule 9 (1) of the U. P. Secondary Education Services Commission Rules, 1983. It has, however, been brought to our notice that the said rule has been amended on 1-7-1983 and the words "in the concerned subject" have been omitted. After omission of these words, it is not disputed that the opposite party no. 4 is eligible and is also senior to the petitioner. On behalf of the petitioner now a new ground has been urged. Although the writ petition has not been amended formally, we have heard arguments on the new plea because it is on a point of law. It has been contended that the power given to the Management for filling vacancies by ad hoc promotion which was conferred by the Removal of Difficulties Order dated 11-9-1981 cannot be said to be available after the Commission has been constituted under the Act. The managements were given this power only because of the non-constitution of the Commission. It is, however, noteworthy that when this Removal of Difficulties Order was issued, Ordinance No. 23 of 1981 was in force. The provisions of that Ordinance in this respect were identical to the provisions of the new Act. Section 36 (2) of the Act no. 5 of 1982 lays down that notwithstanding the repeal of the earlier Ordinance No. 23 of 1981, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act were in force on all material times. The Removal of Difficulties Order issued under the Ordinance will, therefore, be deen ed to have been issued under Section 23 of the new Act. It is not quite correct to say that the Removal of Difficulties Order was intended to be in operation only until the constitution of the Commission. The preamble of the Removal of Difficulties Order of 31-7-1981 laid down that even after the establishment of the Commission it will not be possible to make selection of the teachers for the first few months. Thus, it was clearly intended that the provisions for ad hoc appointment by promotion by the management were to continue to remain in force even after the establishment of the Commission. This ground was repeated in the preamble of the Removal of Difficulties Order dated 11-9-1981. Not only this, yet another Removal of Difficulties Order has been issued on 14-4-1982 after the passing of the Act No. 5 of 1982. It was enacted on 25-2-1982 though it was brought into force with retrospective effect on 14-7-1981. Even in this Removal of Difficulties Order dated 14-4-1982 the original order of 1981 has been amended and not replaced. It is well settled that when amendment is made in a particular statute or a statutory instrument such amendment amounts to re-enactment of the original statute or instrument in the amended form. Accordingly the State Government by issuing the order dated 14-4-1982 adopted the entire Removal of Difficulties Order of 1981 as amended from time to time. The preamble of this Order also says that even after the establishment of the Commission it will not be possible to make selections for sometime. The order also mentions that the commission could not be established till then, i. e., till 14-4-1982. It cannot, therefore, be said that the original Removal of Difficulties Order as amended on 11-9-1981 is to be deemed to have ceased to be in force after the enactment of Act No, 5 Of 1982. It has further been urged that the Removal of Difficulties Order is itself invalid because the Act says that ad hoc promotions are to be made only after the vacancies have been intimated to the Commission vide Section 18 of the Act. Even after intimation of vacancies the management has to wait for a period of one year for the recommendations of the Commission or the post must have actually remained vacant for more than two months. In our opinion it was in order to soften the rigor of this rigid provisions of Section 18 that the Removal of Difficulties Order has come to be promulgated. The contingency of a post remaining vacant and the interest of students suffering as a result of the vacancy had to be provided for, and the issuance of the Removal of Difficulties Order to relieve this difficulty cannot be said to be ultra vires. It is very much in accordance with the object of the Act. We may add that the non-filling of vacancy by any one will not, in any way, benefit the petitioner.
(3.) WE thus, find no merit in this petition. It is, hereby, dismissed. However, the Management shall make a reference to the Commission within one month from the date of this order and the appointment of the opposite party no. 4 will remain in force only until the recommendation of the Commission is received and acted upon. It will be open to the petitioner also to intimate the Commission alongwith a copy of this judgment. Petition dismissed.;