- (1.) R. R. K. Trivedi, J. Both these appeals have been preferred against the judgment dated 25-2-1994, by which the learned single Judge decided a group of writ petitions, challenging the legality, validity and vires of U. P. Act No. 24 of 1992. In one of the writ petitions, vires of U. P. Act No. 5 of 1982 was also challenged. Special Appeal No. 411 of 1994 arises out of writ peti tion No. 42466 of 1993 whereas Special Appeal No. 617 of 1994 is from writ petition No. 44470 of 1993. Though both the aforesaid Special Appeals were beard separately but as they arise from the same judgment and the questions of law and facts are also common, both may be conveniently disposed of to gether and are accordingly decided by this common judgment.
(2.) THERE is no dispute about the facts. Appointments of petitioners-appellants were admittedly made by the committee of management in contra vention of Section 18 of U. P. Secondary Education Service Commission Act, 1982 (U. P. Act No. 5 of 1982) (hereinafter referred to as the Act) as amended and substituted by U. P. Secondary Education Services Commission Selection Boards (Second Amendment) Act, 1992 (U. P. Act No. 24 of 1992 ). Before the learned single Judge the petitioners challenged the validity of Section 18 of the Act on the following grounds : (i) that Section 18 is violative of Article 19 (l) (c) of the Constitution of India which provides that all citizens shall have right to form associations and unions ; (ii) provisions of the Act are violative of the petitioner's right guaran teed under Article 300-A of the Constitution : (iii) the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution ; (iv) the Act has been passed in colourable exercise of power as under the amended provisions of the Act the society which established the institution has been rendered defunct and has no say in the matter of running the institution, under the guise of regulating the affairs, all powers of the management have been taken away ; (v) Assent of the President of India has not been obtained, hence U. P. Act No. 24 of 1992 is void to the extent it is repugnant to the provisions of U. P. Intermediate Education Act, 1921 (U. P. Act No. 2 of 1921) ; (vi) Section 18 (9) as substituted by Act No. 24 of 1992 is vague and uncertain as it does not specify as to of which district the Inspec tor of Schools shall be the chairman of the committee. Learned single Judge has very elaborately discussed and dealt with all the aforesaid challenges made on behalf of the petitioners and, in our opinion, has answered them correctly. We do not find any error or illegality in the view taken by the learned single Judge in denying the relief sought by the petitioners on the basis of the arguments advanced before him. The learned single Judge before dealing with the contentions raised before him ha traced the legislative history which was necessary for appreciating and deciding the contentions raised before him. The legislative background mentioned by the learned single Judge in the judgment is so elaborate and sufficient that it is not necessary for us to repeat the same. In the circumstances, we propose to straightway enter into the contentions advanced before us by the learned counsel for the parties. We have heard Shri Vinod Misra, learned counsel for the appellant in special Appeal No. 617 of 1994 and Shri G. C. Bhattacharya, learned counsel for the appellant in Special Appeal No. 411 of 1994 and Shri Rakesh Dwivedi. learned Additional Advocate General for the respondent State. Before dealing with the contentions, it may be very relevant to men tion here that the appellant in Special Appeal No. 411 of 1994 filed an appli cation with the prayer to stay operation of the order and judgment passed by the learned single Judge. This application has been supported by an affidavit which discloses that in writ petition No. 38200 of 1992-Rajarshi Purushottam Das Tandon Higher Secondary School v. State of U. P. , in W. P. No. 38198 of 1992-Tyag Murty Atmaram Govind Kher Intermediate College y. State o U. P. pending in this Court, certain orders were passed by the Division Bench and petitioners in the aforesaid writ petitions were granted time to file amend ment application seeking amendments in the writ petitions for challenging the legality and validity of U. P. Act No. 24 of 1992. The copy of the amendment application in writ petition No. 38198 of 1992 has been filed as Annexure 5 to the aforesaid affidavit. Copy of the order dated 1-2-1992 passed in writ peti tion No. 38200 of 1992 and copy of the order dated 26-4-1993 passed in writ petition No. 38200 of 1992 and writ petition No. 38198 of 1992 have been filed as Annexures T and '2' respectively to the affidavit. Copies of the coun ter affidavits and rejoinder affidavits exchanged between the parties have also been filed. On the basis of the aforesaid material it has been prayed that the appellants may be permitted to argue grounds Nos. 2, 3 and 4 raised in the memo of appeal. The appellant in Special Appeal No. 411 of 1994 himself has not filed any amendment application to his writ petition. The facts men tioned and the grounds raised were not placed before the learned single Judge and this was sufficient to reject the contentions advanced here. Legally, on the basis of the amendment application moved in another writ petition and counter and rejoinder affidavits exchanged between the parties in that writ petition, tha parties cannot be allowed to raise a new ground and argue the same at the appellate stage. However, without entering into these technicali ties, we thought it proper to decide the contentions raised before us on merits though not without expressing our anguish and serious concern that the appel lant had not thought it necessary to move a proper amendment application in the writ petition from which the present appeal has arisen and then raised serious argument challenging the validity of an Act contrary to the procedure provided in the rules. The procedure adopted in the present appeal cannot be approved in any way.
(3.) LEARNED counsel for the appellant in Special Appeal No. 617 of 1994 submitted that theory of merger will apply and any amendment made in exist ing law shall also get the same status as it becomes part and parcel of the Act. Though learned counsel for the appellant gave up this argument at a later stage, we are taking it into consideration, as the submissions of the learned counsel for the appellant in Special Appeal No. 411 of 1994 on the question of assent required under law for U. P. Act No. 24 of 1992, are also identical. In this connection it has been submitted that any amendment to the principal Act became part and parcel of the same and does not keep any separate identity. The submission is that the amendments made in U. P. Intermediate Education Act, 1921, by U. P. Act No. 35 of 1958 and various other amendments subse quent thereto should also be treated as existing law as it is not disputed that the principal Act, namely U. P. Intermediate Education Act, 1921, is existing law. We have considered the submission and, in our opinion, it cannot be accepted. Existing law has defined in Article 366 (10) of the Constitution which is being reproduced below. : "existing law" means any law, ordinance, order, bye-law, rule or regular made before the Commencement of thin Constitution by any Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation," From a bare perusal of the aforesaid definition of the existing law, it is clear that the law should have been passed or made before the commencement of this Constitution. Admittedly U. P. Act No. 35 of 1958 was passed, bringing drastic amendment in U. P. Intermediate Education Act, 1921, after the com mencement of the Constitution. This legislative activity by the State Legis lature in enacting U. P. Act No. 35 of 1958 was independent and under the present Constitution, whereas U, P. Intermediate Education Act, 1921, was passed under the Government of India Act, 1919. The aforesaid two acts of the Legislature were separate and independent and they continued to have separate existence and cannot be treated as single legislative activity. It is true that the provisions introduced by the Amending Act became part of the principal Act for purpose of implementation of the provisions and for carrying out the purpose and object of the Act, but on the basis of such analogy or the principles of law, it cannot be said that the legislative function of the State Legislature exercise under the Constitution of India bringing about the amendment in the existing law shall be treated at par with the existing law. The submissions made are misconceived and cannot be accepted. On this question the leaned Single Judge, in our opinion,, correctly held that for passing U. P. Act No. 24 of 1992, assent of the President of India was not at all required under Article 254 (2) of the Constitution as the provisions contained therein are not repugnant either to any existing law or any law made by the Parliament. The question raised also stands concluded by judgment of Hon'ble Supreme Court in Synthetics and Chemicals v. State of U. P. , reported in AIR 1990 SC 1990 and Kalyani Stores v. Stale of Orissa, reported in AIR 1966 SC 1686. Another contention raised on behalf of the learned counsel for the appellants was based on Article 14 of the Constitution of India. It was sub mitted that provisions contained in Section 18 of the impugned Act are unreasonable and arbitrary. Basis for the submission was that the com mittee provided for selecting teachers for ad hoc appointment consisted of officials who are bureaucrats and have nothing to do with the subject of education. Thus, the right of selection of teachers has been illegally taken away from the committee of management which was in a better position to select teachers for imparting education to the students of the institution. However, we are not impressed by this submission made by the learned counsel for the appellant. For that matter, the members of the committee of manage ment are generally act connected with education. The committee provided under Section 18 " (9) of the impugned Act No. 24 of 1992 consists of the District Inspector of Schools who shall be Chairman of the Committee, Basic Shiksha Adhikari and the District Inspectors of Girls Schools and in her absence the Principal of the Government Girls Intermediate College. A bare look of the composition of the committee shows that the members or the committee are not the persons who have no connection with the subject of education. For the post of District inspector of Schools, normally the senior most principal of Government colleges is promoted and appointed. The office of the Basic Shiksha Adhikari is also filled up mostly by appointing senior teachers serving in the Government Colleges. Thus, the members of the committees provided for selecting ad-hoc teachers at district level cannot be termed to be a committee consisting of executive officers or bureau crats having no link with the subject of education. In our opinion. Section 18 as introduced by U. P. Amendment Act No. 24 of 1992 does not offend Article 14 of the Constitution of India in any manner. The provision contained are neither arbitrary nor unreasonable.;