- (1.) ASHOK Bhushan, J. This is an appeal against the judgment and order dated 30-10-2006 of the learned Single Judge, dismissing the writ petition filed by the appellant. The writ petitioner has challenged the vires of Section 33-C (6) of the U. P. Secondary Education Service Selection Board Act, 1982. The writ petitioner was an ad hoc appointee, who has represented for his substantive appointment by virtue of provisions of Section 33-C (1); the representation was rejected on the ground that in view of Section 33-C (6), the writ petitioner is not entitled for substantive appointment. The writ petitioner consequently challenged the vires of Section 33-C (6 ). The learned Single Judge issued notice to the learned Advocate General and heard the parties, and had upheld the vires of Section 33-C (6 ).
(2.) MR. Manish Goyal, learned Counsel for the appellant submitted that the view of the learned Single Judge that the Apex Court in the case of Kiran Gupta v. State of U. P. , 2001 (1) LBESR 902 (SC) : (2000) 7 SCC 719, has upheld the vires of Section 33-C, hence it will be assumed that Section 33-C (6) is intra vires, cannot be accepted. Shri Goyal further submits that the learned Single Judge has further relied on a Division Bench judgment of this Court in Balak Singh Kushwaha v. State of U. P. & Ors. , 1999 (1) LBESR 249 (All) : (1998) 3 UPLBEC 1989, in which also he submits that Section 33-C (6) was not under consideration. In support of his submission Sri Goyal contended that Section 33-C (6) in effect takes away the rights of ad hoc teacher, which have been extended by Section 33-C (1 ). He submits that sub- section (6) cannot cut down the main provision of Section 33-C (1) and has to be read down. He submits that the word 'or' used in the last sentence of sub-section (6) "has already been filed or selection for such vacancy has already made", has to be read as 'and'. He submits that by reading the said word 'or' as 'and', the same will be in accordance with the Scheme of Section 33-C (1) and carryout the object for which Section 33-C (1) was inserted by U. P. Act No. 25 of 1998. He has placed reliance on the judgment of the Apex Court reported at AIR 1957 SC 699, State of Bombay v. R. M. D. Chamarbaugwala, for the proposition 'or' has to be read as 'and', for the proposition that non-obstante clause cannot be read as to cut down the main enactment; reliance has been placed on AIR 1952 SC 369, Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr. , and AIR 1954 SC 596, The Dominion of India & Anr. v. Shrinbai A. Irani & Anr. . He further submits that the provision being a beneficial legislation, has to be construed in a manner that it operates as a benevolent legislation, for which preposition reliance has also been placed by the learned Counsel for the appellant in the cases, reported at 1985 (4) SCC 325, Workmen of Messrs Binny Ltd. v. Management of Binny Ltd. & Anr. , and 1998 (1) LBESR 648 (SC) : JT 1998 (1) SC 265, Indian Bank v. K. Usha & Anr. Learned Standing Counsel has supported the impugned judgment and has contended that the provision is wholly intra vires. He submits that Section 33-C (6) is also a part of the provisions of Section 33-C and has to be read harmoniously. He further submits that the regularization of ad hoc teachers is only an exception and cannot take away the rights of regularly selected candidates. We have considered the submissions and perused the records.
(3.) ALTHOUGH the Apex Court in Kiran Gupta's case (supra) had occasion to consider the provisions of Section 33-C, but the said judgment did not specifically consider the vires of Section 33-C (6), as is clear from paragraph 46 of the judgment, where the Apex Court observed that "as constitutional validity of Section 33-C (6) has not been challenged in the High Court, we do not propose to go into it here" In view of the above observation, it is clear that the said provision was not considered by the Apex Court and thus, we have proceeded to examine the submission made by Shri Goyal. Before we proceed to examine the respective contentions of the parties, it is useful to reproduce Section 33-C of Act 5 of 1982, which is as follows : "33-C. Regularisation of certain more appointments.- (1) Any teacher who, - (a) (i) was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade; (ii) was appointed by promotion on or after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of a Principal or Head Master in accordance with Section 18; (b) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921; (c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998; (d) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2); shall be given substantive appointment by the Management. (2) (a) For each region, there shall be a Selection Committee comprising, - (i) Regional Joint Director of Education of that region, who shall be the Chairman; (ii) Regional Deputy Director of Education (Secondary), who shall be member; (iii) Regional Assistant Director of Education (Basic), who shall be a member. In addition to above members the District Inspector of Schools of the concerned District shall be co- opted as member while considering the cases for regularisation of that district. (b) The procedure of selection for substantive appointment under sub-section (I) shall be such as may be prescribed. (3) (a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment. (b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first. (4) Every teacher appointed in a substantive capacity under sub-section (I) shall be deemed to be on probation from the date of such substantive appointment. (5) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify. (6) Nothing in this section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Ordinance referred to in clause (c) of sub-section (I) such vacancy had already been filed or selection for such vacancy has already been made in accordance with this Act. ";