- (1.) V. N. Khare J. Over a decade's history of recruitment of teachers in the Government aided recognised institutions run by the private manage ments in the State of Uttar Pradesh discloses that the recruitment of teac hers began with ad hoc appointment which was subsequently regularised by legislative intervention. In fact the Government could not achieve its object to recruit competent teachers through fair selection by instrumentality of the U. P. Secondary Education Services Commission (hereinafter referred to as the Commission) initially due to its non-establishment and subsequently due to long delay entailed in the process of selection of teachers. Thus, due to non-availability of duly selected teachers, who were urgently required in the institutions the whole machinary got involved in recruiting teachers by ad hoc appointment in the institutions. In the absence of com plete legislation in respect of method of appointment of ad hoc teachers the management of the institutions resorted to make ad hoc appointment in the manner which suited them best and this gave rise to enormous litigations which have brought burden on the Court as well as on public exchequer and further affected the standard of the education in this State. Despite illustritious judgments rendered by this Court the controversy in respect of ad hoc appointment of teachers/principal in the institutions continued to be deba ted in this Court. It is in this back ground when these writ petitions came up before the learned Single Judge the controversy as to whether the ad hoe appointment of Principal in the institution is to be done either by promo tion from amongst the senior most teacher or by direct recruitment, was raised. In the special appeal also the question raised was as to whether any approval or prior approval of the District Inspector of Schools in the matter of ad hoc appointment of teacher is required or not. In the writ petition the question raised before the learned Single Judge was that since the U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 has ceased to be operative the ad hoc appointment of principal in the institution has to be done in accordance with the provisions of the U. P. Intermediate Education Act, 1921 (hereinafter referred to as, the Intermediate Education Act) and the regulations framed thereunder. According to the learned Single Judge various Removal of Difficulties Order issued by the State Government under Section 33 of the U. P. Secon dary Education of Services Commission and Selection Board Act 1981 (herein after referred to as the Act) cannot continue for unlimited period of time inasmuch as the reason for issuing of removal of Difficulties Orders by the State Government has attained its purpose by adding a new Section 33-A by which all the ad hoc appointments made there stood regularised and as such First Removal of Difficulties Order as amended by subsequent order has ceased to be operative. In view of this, the learned Single Judge was of opinion that ad hoc appointment of Principal in the institution is permissi ble under the provisions of the U. P. Intermediate Education Act and under the regulations thereunder and not under the Removal of Difficulties Order issued under the Act. The learned Single Judge was of further opinion that the questions involved in the writ petitions require to be considered by a Full Bench of this Court. The learned Single Judge by order dated 31st March, 1992 framed five questions of law to be answered by a Full Bench. Before the learned Single Judge, it appears that certain amendments in the Act were not brought to his notice and further subsequent to the date of reference the Act has under gone through major legislative changes which are being mentioned hereinafter. By U. P. Act No. 26 of 1991, in Section 33-1, three sub-sections namely sub-section (I-A), (I-B) and (I-C) were added and further sub-section (2) of Section 33-A was substituted by new sub section (2 ). By this new sub-section certain categories of teachers who were appointed on ad hoc basis, either by promotion or direct recruitment, their services were regularised. By U. P. Act No. 1 of 1993 a Proviso was added in sub-section (1) of Section 33 of the Principal Act which is in the following terms: "provided that no such order shall be made after two years from the date of commencement of U. P. Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992 (U. P. Act No. 1 of 1992 ). " Thus, this Proviso gave power to the State Government to issue Removal of Difficulties Orders for a further period of two years from coming into force of Act No. 1 of 1993. The view taken by the learned Single Judge that since original Proviso to Section 33 of the Act prohibited issuance of Removal of Difficulties Order after two years of common cement of the Act, namely 14th July, 1981, there is no justification for treating the Removal of Difficulties Orders to be continuing in force, lost its relevance in view of substitution of new Proviso in sub-section (1) of Section 33 of the U. P. Act No. 1 of 1993. Since the very premise on which the questions framed were required to be answered by Full Bench has disappeared, we were inclined to send the case back to the learned Single Judge for decision on merit. How ever, since the learned counsel for the parties questioned the validity of Section 33 of the Act which empowers the State Government to issue Re moval of Difficulties Orders and also various Removal of Difficulties Orders issued by the State Government, we with the consent of the parties by our order dated 17-9-1993 refrained the following questions : (a) Whether Section 33 of the U. P. Act No. 5 of 1982 suffers from vice of excessive delegation of legislative power and as such it is void? (b) If the answer to question No. (a) is in negative, whether Remo val of Difficulties Orders published on 31st July, 1981, Removal of Difficulties (Second) Order published on 11th September 1981 and Removal of Difficulties (Third Order published on 30th January, 1982, issued by the Government tend to amend, scheme and essential features of the Act and as such are ultravires the provisions of Section 33 of the Act. (c) Whet would be the criteria and procedure for ad hoc appoint ment of a teacher or principal either under the Removal of Difficulties Order or under Section 18 of the U. P. Act No. 5 of 1982? (d) Whether any approval or prior approval of the District Inspector of Schools or Regional Inspectress of Girls Schools, as the case may be, is necessary for making ad hoe appointment of a teacher or Principal either under the Removal of Difficulties Order or under Section 18 of the Act ?
(2.) BEFORE I answer to these questions, it is necessary to give brief facts of the petitions which have given rise to the questions require to be answered by this Full Bench. In Civil Misc. Writ Petition No. 18934 of 1991 the vacancy in the post of principal of the College came into existence on account of retirement of permanent Principal. Although the Manage ment notified the vacancy to the Commission yet the Commission was not able to send duly selected Principal for appointment to the said post. Since duly selected Principal by the Commission was not available the Management appointed contesting respondent on ad hoc basis to the post of principal. This appointment was challenged by the petitioner claiming that in fact the ad hoc appointment to the post of Principal has to be done on the basis of promotion, amongst the senior most teacher in the lecturer grade. In Civil Misc Writ petition No. 23642 of 1991 the Committee of Manage ment instead of taking recourse to the method of promotion for filling the vacancy in the post of Principal, resorted to the method of direct recruit ment for ad hoc appointment to the said post and on that basis the contest ing respondent was appointed on ad hoc basis as principal of the institution and who is the petitioner in the Civil Misc. Writ Petition No 23737 of 1991. The third Civil Misc. Writ Petition No. 23737 of 1991 has been filed by the ad hoc principal, appointed by direct recruitment challenging the order of the District Inspector of Schools directing the Management to fill the said post by promotion. In Special Appeal No. 31 of 1991 the appellant was appointed by letter dated 6-1-1989 only for a period up to 30th April, 1989 without obtaining any approval from the District Inspector of Schools. This petition was dismissed against which the special appeal was filed wherein it was contended that for ad hoc appointment it is not necessary to comply with the provisions contained in the first Removal of Difficulties Order issued under Section 33 of the Act. The validity of Section 33 of the Act as well as various Removal of Difficulties Orders has been questioned by the respondents presumably on this hope that in case Section 33 of the Act or various Removal of Difficulties Orders issued by the State Government if found void, it would not be necessary for the Management to comply with the provisions of first Removal of Difficulties Order. In the light of the aforesaid allegations in the writ petitions and special appeal, I proceed to answer the questions reframed by us: Question No, 1 (a ).-"whether Section 33 of the U. P. Act No. 5 of 1982 suffers from vice of excessive delegation of legislative power and as such it is void ? Question No. 1 raises the validity of Section 33 of the Act, which is in following terms; "38. Power to remove difficulties- (1) The State Government may, for purpose of removing any difficulty, by a notified order, direct that the provisions of this Act shall during such period as may be specified in the order have effect subject to such adoptations, whether by way of modification, addition or omis sion, as it may deem to be necessary or expedient; Provided that no such order shall be made after two years from the date of commencement to this Act; (2) Every order made under sub-section (1) shall be laid before the House of State Legislature; (3) No order under sub-section (1) shall be called it question in any Court on the ground that no difficulty as is referred to in sub section (1) existed or required to be removed. " The provision like Section 33 of the Act quoted above which empowers the State Government or any other body to issue Removal of Difficulties Order by directing that the provisions of the Act shall have effect subject to such adoptation whether by modification addition or omis sion after the Act has come into force has been nick named "the Henry VIII Clause" presumably because the British Monarch Henry VIII, who was well known for his autocracy persuaded the British Parliament to enlarge his power to make law by means of proclamation. Initially, inclusion of such provision in Statute in England invited uncharitable comments. The Committee on Minister's powers while admitting such a provision be rarely incorporated in a statute which is cited in re Article 143 of the Constitution of India and Delhi Laws Act, is extracted below: ". . . . . . . . We are clear in our opinion first that the adoption of such a clause ought one each occasion when it is on the initiative of the Minister incharge of the Bill, proposed to Parliament to be justified by hint up to the essential. It can only be essential for the limited purpose of bringing an Act into operation and it should accordingly be in most precise language restrict to those purely machinery arrangements vitially requisite for that pur pose; and the clause should always contain a maximum time limit of one year after which the power should lapse. If in the even the time limit proves too short which is unlikely the Government should then come back to Parliament with a one clause Bill to extend it. "
(3.) ALTHOUGH the Henry VIII Clause was much frowned upon in England yet such clause continued to find place in number of statute enacted by British Parliament presumably to shield the drafts man's inabi lity to for see all the difficulties that might arise in future in giving effect to that statute. The above reason for retention of such clause in the Statute find support from Sir Thomes Corr's Book' concerning English Administrative law' which is reproduced below: "of all the types of orders which alter statutes, the so called "henry VIII Clause" sometimes inserted in big and complicated Acts, has probably caused the greatest flutter in England. It enables the Minister by order to modify the Act itself so far as necessary for bringing it into operation. Anyone who will look to see what sort of orders have been made under this power will find them surprisingly innocuous. The device is partly a draftsman's insurance policy, in case he has overlooked something, and is partly due to the immense body of local Acts in England creating special difficulties in particular areas. These local Acts are very hard to trace, and the draftsman could never be confident that he has examined them all in advance. The Henry VIII Clause ought, of course to be effective for a short time only. " The rapid changes in the society in post independent era in India brought more responsibility on Statute to meet the need and aspiration of people which are legitimately expected from a welfare State which resulted in multifarious activities by the State. This brought tremendous pressure on legislature to enact numerous laws. Seeing the pressure of legislature's time, the technical character of modern law, need for flexibility and the amount of time which is being consumed in amending laws, the legislature though fit and expedient only to concentrate on essential leaving the details to be worked out by the executive by making such adaptation whether by way of modification, addition or omission. Of course without doing any violence to the essential feature and purposes of the Statute. This course was adopted by the legislature in order to implement the Statute more effectively and without waiting for amending process in the legislature which often took lot of time.;