B. L. Loomba, J. - (1.) FATE of these seven writ petitions is dependent on the decision on the following questions of law : 1. Whether teachers appointed on ad-hoc basis by way of promotion under the Uttar Pradesh Secondary Education Services Commission Removal of Difficulties Order, 1981 (hereinafter referred to as the First Removal of Difficulties Order) or under section 18 of the U. P. Secondary Education Services Commission and Selection Boards Ordinance, 1981 (U. P. Ordinance no. 8 of 81), replaced by U. P. Act no. 5 of 1982 (hereinafter referred to as " 1982 Act ") are entitled to the benefit of regularisation under section 33-A of the 1982 Act as inserted by the U. P. Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985 (U. P. Ordinance No. 12 of 1985) ? 2.Whether section 21-B of the 1982 Act as inserted by U. P. Ordinance No. 12 of 1985 is hit by Article 14 of the Constitution of India ? 3. Whether the said section 21-B is not applicable in so far as it concerns the teachers who were appointed on ad-hoc basis under the Removal of Difficulties Order or under the said section 18 prior to the commencement of U. P. Ordinance No. 12 of 1985 and who continued to work on the post on which they were so appointed till such commencement ? Point No. 1
(2.) THE appointments of teachers in secondary institutions recognised by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and the regulations made thereunder. U. P. Ordinance No. 8 of 81 was promulgated on 10-7-81 for the purpose of establishment of the U. P. Secondary Education Services Commission and the Secondary Education Selection Boards with the object that the selection of teachers for appointment in the said institutions may be done through the Commission/Boards so that better quality teachers from larger field of selection may be selected and appointed. Under section 33 of this Ordinance power was reserved to issue Removal of Difficulties Orders so as to provide transitional provisions for the period until the constitution of the said Commission and the Boards. First Removal of Difficulties Order was issued on 31-7-81 in exercise of these powers and some more Removal of Difficulties Orders were also subsequently issued. The First Removal of Difficulties Order provided for ad-hoc appointments of teachers both by direct appointment, as also by way of promotion. It was expected that the Commission/Boards would start functioning and make selections within six months from the date of the Removal of Difficulties Order and as such the duration of ad-hoc appointments was stated to be six months or when the candidate recommended by the Commission or Boards joins the post, whichever date be earlier. Since selection could not be ensured within six months the Third Removal of Difficulties Order provided that every appointment of ad-hoc teacher under paragraph 2 of the Order shall cease to have effect when a candidate recommended by the Commission or the Board, as the case may be, joins the post. Accordingly, the ad-hoc teachers appointed under the Removal of Difficulties Order could continue until replaced by a candidate selected by the Commission or the Board, joins the post. Section 33-A was inserted through U. P. Ordinance No. 12 of 1985 with the object of regularising the services of such ad-hoc teachers who possess prescribed qualifications and were directly appointed against substantive vacancies in accordance with para 2 of the Removal of Difficulties Order, 1981, as amended from time to time and in respect of which fresh selection had not already been made by the Commission. Learned counsel for the petitioners have argued that all the ad-hoc appointees whether the appointment was made directly or by way of promotion, under the Removal of Difficulties Order or under section 18 of 1982 Act were broadly speaking standing on equal footings and could not be discriminated against in the matter of regularisation of their services. It is submitted that the provision in so far as it provides for regularisation only of the teachers appointed directly is arbitrary and violative of Articles 14 and 16 of the Constitution. We have carefully considered this question and are of the view that this submission has no force. In so far as the teachers appointed by way of promotion, the only basis of selection was the seniority of the teacher, the senior most was required to be appointed. He was not required to face any selection involving consideration of his merits including academic record for this purpose. The appointments under section 18 of 1982 Act were also not made after any selection on merit. The same were in the nature of short duration appointments which could be made only after the vacancies had been notified to the Commission. After the notification of the vacancies it was expected that the Commission/Board would make selection and provide the candidates within a short time. No procedure for selection for purposes of such ad-hoc appointments was prescribed and as such the candidates to be appointed under section 18 were not to face any selection on any objective considerations on merit. As against these two categories, the appointments by direct recruitment under paragraph 2 of the Removal of Difficulties Order were required to be made through the District Inspector of Schools on the basis of quality point marks as provided in paragraph 5 of the Removal of Difficulties Order, read with the schedule of quality point marks as set out in the appendix to the Removal of Difficulties Order. The category of direct appointees under para 2 of the Removal of Difficulties Order was, as such, distinct and qualitatively different from the categories of appointees by way of promotion or under Section 18 of 1982 Act. This question came up for consideration in Chandrika Prasad Yadav v. State of U. P., 1986 Ed. Cases 223 wherein it was held that the benefit of section 33-A is available only to those teachers who were appointed on ad-hoc basis directly and not to the teachers who were appointed on ad hoc basis under the Removal of Difficulties Order of 1981 by way of promotion. It was also held that there is no merit in the submission that section 33-A is hit by Article 14 of the Constitution of India in that it concerns the benefit of regularisation only of the teachers who were directly appointed on ad-hoc basis. The language of section 33-A is clear and explicit providing that the protection of regularisation was available to those teachers who were directly appointed under paragraph 2 of Removal of Difficulties Order and not to the other two categories of ad-hoc appointees, namely, those appointed by way of promotion or under Section 18 of 1982 Act. Point No. 2
(3.) SECTION 21-B was enacted in order to give effect to the judgment of the Supreme Court in Prabodh Verma v. State of U. P., 1984 ALJ 931. It would be useful to reproduce the relevant para of the statement of objects and reasons of the U. P. Secondary Education Services Commission and Selection Board (Amendment) Act, 1985 which replaced U. P. Ordinance No. 12 of 85 : " The services of such Higher Secondary Schools and Intermediate Colleges teachers, who had gone on strike in December, 1977 and January, 1978 and had not resumed their duties by the specified date, were terminated under the provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 and new teachers were appointed during the period January 9 or January 19, 1978 for resumption of teaching work in the said institutions. Lateron the termination orders of the striking teachers were recalled on compassionate grounds and the services of the newly appointed teachers were dispensed with. The State Government, thereafter, decided to absorb all the newly appointed temporary teachers who had joined their duties between January 9 and January 19, 1978 (both days inclusive) against the substantive vacancies of secondary teachers to be filled by direct recruitment. In order to achieve this object, the Uttar Pradesh High School and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U. P. Ordinance No. 10 of 1978) was promulgated on June 24, 1978 which was subsequently replaced by U. P. Ordinance No. 22 of 1978 and certain appointments were made thereunder. In a Writ Petition filed by the Madhyamik Shikshak Sangh, the Allahabad High Court held the said U. P. Ordinance No. 22 of 1978 to be void. The newly appointed teachers, referred to as the reserve pool teachers, preferred an appeal in the Supreme Court against the judgment of Allahabad High Court. The Supreme Court allowed the appeal of the reserve pool teachers and decided that the reserve pool teachers, are entitled to be appointed in accordance with the provisions of U. P. Ordinance No. 22 of 1978, and should be appointed in future substantive vacancies. In order to comply with the judgment of the Supreme Court it was considered expedient to amend the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 (U. P. Act No. 5 of 1982). " It would be also useful to reproduce the relevant conclusion of the decision of tneir Lordships of the Supreme Court as contained in para 50 of the judgment at page 954 of Prabodh Verma v. State of U. P., 1984 ALJ 931 :- " (9) Neither the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U. P. Ordinance No. 10 of 1978) nor the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U. P. Ordinance No. 22 of 1978), infringed Art. 14 or Art. 16 (1) of the Constitution or was unconstitutional or void. (10) The reserve pool teachers formed a separate and distinct class from other applicants for the posts of teachers in recognized institutions. (11) The differentia which distinguished the class of reserve pool teachers from the class of other applicants for the post of teachers in recognized institutions was the service rendered by the reserve pool teachers to the State and its educational system in a time of crisis. (12) The above differentia bore a reasonable and rational nexus or relation to the object sought to be achieved by U. P. Ordinance Nos. 10 and 22 of 1978, read with the Intermediate Education Act, 1921 namely, to keep the system of High School and Intermediate Education in the State of Uttar Pradesh functioning smoothly without interruption so that the students may not suffer a detriment. (13) The preferential treatment in the matter of recruitment to the post of teachers in the recognized institutions was, therefore, not discriminatory and did not offend Article 14 of the Constitution (14) As the above two classes were not similarly circumstanced, there could be no question of these classes of persons being entitled to equality of opportunity in matters relating to employment guaranteed by Art. 16 (1) of the Constitution and the preferential treatment given to the reserve pool teachers was, therefore, not violative of Art. 16 (1) of the Constitution. " Section 21-B in material terms is on the same lines as clause (iv) of U. P. Ordinance no. 10 of 1978. The validity of the provision having been upheld by their Lordships of the Supreme Court and section 21-B having been enacted in order to give effect to the decision of the Supreme Court, the plea raising challenge to its validity has no force and has to be rejected. Point No. 3;