R. M. Sahai, J.- - (1.) CLASH of interest, more superficial than real, has arisen between ad-hoc teachers, appointed or promoted under Removal of Difficulties Orders issued from time to time by the Governor in exercise of powers under section 33 of Ordinance No. 8 of 1981 and reserve-pool-teachers-appointed between 9th and 19th January 1978 during mass strike by teachers of U. P. Madhyamic Sangh, due to addition of Chapter IV A and Section 33-A to U. P. Higher Education Service Commission Act (Act V of 1982) (hereinafter referred to as the Act) by Act 28 of 1985. Unfortunately it has been aggravated, further due to misapprehension about exact scope of these sections resulting in different orders by different Inspectors of Schools and directions by higher authorities.
(2.) FOR a proper grasp of the issue, mainly legal, it is necessary to narrate in brief the background which led to addition of these provisions and the objectives they seek to achieve. Education, particularly, at higher secondary level was regulated under U. P. Intermediate Education Act, 1921. It contained detailed provisions regarding Constitution of Board, recognition of institutions, conduct of examinations etc. Method of recruitment of teachers, their service conditions, however, were governed by regulations framed by the Board. From fiftees onwards greater attention towards education resulting in liberalised grants in aid and easier recognition of private institutions appears to have given rise to vested interests, exposing the teachers to exploitation by commercially minded managements. The evil became so rampant that the Legislature intervened and added Section 16-E to 1921 Act in 1958 to protect the interest of teachers by making their appointment and termination subject to approval of Inspector of Schools. The measure succeeded partially only. Therefore, in 1971, Act 24 was enacted providing for payment of salary to the teachers before expiry of 20th day of the next month, without deductions, except, those authorised by regulations or rules and in default by management to be paid by Inspector. Infact payment of salary became responsibility of State. But as is usual the well meaning move of government was attempted to be misused by management by unwarranted employment of teachers without any regard to necessity or the sanctioned strength. To curb and control it and to improve efficiency in education for which the government was assuming more and more responsibility Act 26 of 1975 was enacted which added certain provisions which required appointment to be made by selection committee. Institutions were prohibited from creating new posts except with the approval of Director. It was, an effort to reduce power of management to appoint teachers and to improve standard of education, but period from 1975 to 1981 was marked with great agitation and disturbances. The system of selection committee did not appear to have proved successful, consequently government promulgated Ordinance No. 8 of 1981 on 10th July, 1981. The Scheme envisaged by it completely overhauled the mechanism of appointment of teachers It excluded the managements, altogether, from selection and confined its role to making of recommendations only It purported to set-up a commission for selection at higher level and regional boards at lower level. But the establishment and constitution of commission, the procedure of selection contemplated were likely to take some time whereas large number of vacancies were existing in every institution as appointments had earlier been stayed by government, which was causing great difficulty therefore, the State Government in exercise of power conferred on it under section 33 of the Ordinance issued Removal of Difficulties Order (First) on 31st July, 1981 empowering a management to appoint by promotion or direct recruitment a teacher purely on ad hoc basis in cases of substantive vacancies existing on the date of commencement of order or which came into existence within a period of two months from the date the order was issued till regularly selected candidate by commission joined the post or period of six months whichever expired earlier. Relevant paragraphs 2 and 3 of the Order are extracted below : " 2. Vacancies in which ad hoc appointment can be made. The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely ; (a) in the case of a substantive vacancy existing on the date of commencement of this Order caused by death, retirement, resignation or otherwise ; (b) in the case of a leave vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement ; (c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period of two months subsequent to the date of such commencement. (d) Duration of ad hoc appointment Every appointment of an ad hoc teacher under Paragraph 2 shall cease to have effect from the earliest of the dates, namely ; (a) when the candidate recommended by the commission or the Board joins the post; or (b) when the period of six months from the date of such ad hoc appointment expires ". It appears commission could not be constituted immediately, therefore, second Removal of Difficulties Order was issued on 11th September, 1981 introducing concept of short-term vacancy caused due to grant of leave, duly approved suspensions or otherwise. But the most significant change introduced by it was substitution of paragraph 2 of the First Order by the paragraph extracted below ; " 2. The management of an institution may appoint by promotion or by direct recruitment, a teacher on purely ad hoc basis in accordance with the provisions of this Order in case of a substantive vacancy caused by death, retirement, resignation or otherwise ". The effect of substitution was that the Managements were empowered to appoint ad hoc teachers not only in vacancies existing on the commencement of the first order or within two months, but even thereafter whenever vacancy arose. It would be made in 1981, 1982 or even 1985. There was no change in duration of these appointments, which could continue at the most for six months, presumably, because it must have been contemplated to constitute commission in the meantime. Since the commission could not be constituted the government on 30th January, 1982, that is one day before expiry of six months, issued third Removal of Difficulties Order substituting paragraph (3) of the first Order and deleting clause (b) of it. The substituted paragraph reads as under : "Every appointment of an ad hoc teacher under paragraph shall cease to have effect when a candidate recommended by the commission or the Board as the case may be joins the post". This again was very material change as hence forward a teacher appointed against substantive vacancy under Removal of Difficulties Order continued till regularly selected teacher from commission joined. The ad hoc appointment did not come to an end automatically after six months. That is appointments against substantive vacancies caused by death, retirement, or resignation etc. were to continue from the date of appointment till the date and candidate selected from commission joined the post. In February, 1982 Act no. 5 of 1982 repealed second Ordinance no- 23 of 1981. The Act came into force with effect from 14th July, that is, the date on which Ordinance no. 8 was issued. By subsection (2) of section 36 it validated all actions done under Ordinance no. 8 of 1981 as having been done under the Act. Section 18 of it empowered the management to appoint by direct recruitment or promotion a teacher on purely ad hoc basis from amongst the persons possessing the qualifications prescribed under Intermediate Education Act if the Commission failed to recommend any suitable candidate for being appointed as a teacher within one year from the date the Management notified vacancies or the post of a teacher actually remained vacant for more than two months. Duration of such appointments at the most could last till 30th June following the date of appointment. The Commission was constituted in November, 1982. And Rules under Act V of 1982 were framed in January, 1983. In July, 1983 U.P. Secondary Education Service Commission First Regulation 1983 came into force. In 1985 Section 33-A was added to the Act regularising appointment of a teacher directly appointed before the commencement of Uttar Pradesh Secondary Education Service Commission and Selection Board (Amendment) Ordinance, 1985 on ad hoc basis against substantive vacancy in accordance with para 2 of Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981 as amended from time to time provided he was qualified and was serving the institution continuously from the date of appointment to the date when the Ordinance was issued. This in brief is the history of provisions of ad hoc appointments under the Removal of Difficulties Orders and under Sec. 18 of the Act.
(3.) AS mentioned earlier by same Ordinance issued in 1985 (Chapter IV-A) dealing with reserve-pool-teachers was added to the Act. Section 21-B of the Act provided for absorption of reserve-pool-teachers. What is meant by reserve- pool-teachers is mentioned in section itself by saying that those teachers who had been appointed in any institution either by Management or any Inspector under sub-section (4) of U. P. Payment of Salaries Act, while U. P. High School and Intermediate Payment of Salaries and other Employees Ordinance, 1977 was enforced and who had actually joined their duties in pursuance of the said provision between January 9, 1978 and January 19, 1978. Sub-section (2) provides that if such teacher continued in service by reason of any order of the court or by any other reason then he shall be deemed to nave been regularly appointed to such post and shall be entitled to confirmation with effect from the date on which he would have been confirmed in normal course. Sub-section (3), which is relevant, is extracted below : "Where any substantive vacancy in post of teacher in an institution is to be filled by direct recruitment, such post at the instance of the Inspector be offered by the Management to a teacher other than the teacher referred to in sub-section (2) whose name is entered in the register referred to in subsection (1)." These provisions, also, have a background. In 1977 90 percent of the teachers of recognised institutions went on indefinite strike from 2nd December in respect of a call by their association. The reason for the strike, its effect etc have been mentioned in detail in Prabodh Verma v. State of U. P., 1984 ALJ 931. What is relevant to be mentioned is that services of more than two thousand striking teachers had come to an end because they did not comply with various orders issued by the government and their places were occupied by fresh appointments. But when settlement was arrived at between government and Madhyamik Shikshak Sangh then services of those teachers who had been appointed in place of striking teachers were terminated. This naturally caused resentment and the government promulgated an Ordinance no. 10 providing for maintenance of a list of such teachers to be known as reserve-pool-teachers for appointment in direct and substantive vacancies occurring thereafter. It was succeeded by another Ordinance known as Ordinance No. 22 of 1978. Both these Ordinances were struck down by this court, being violative of Article 14. The judgment was, however, set aside by the Supreme Court in the above mentioned case and it was directed that those reserve-pool-teachers who had been appointed under the Ordinances and were continuing under interim orders were entitled to be confirmed. And those who could not be appointed because of judgment of High Court were entitled to be appointment. It is this decision which gave birth to Chapter IV-A of the Act which obviously has been enacted to give effect to the decision in the case of Prabodh Verma Therefore, by virtue of U. P. Act No. 28 of 1985 two provisions were added to Act V of 1982, simultaneously, the one by which reserve-pool-teachers already working have been regularised and those who are not in service have been directed to be appointed and by the other even ad hoc appointment made under the Removal of Difficulties Orders have been made substantive. Prior to examining their scope and applicability it may be worthwhile ascertaining circumstances which existed at the time the statute was passed, the evils which the provision designedly seek to remedy as the legislature is deemed to be aware of the circumstances which were prevalent at time of passing of the Act (see Sangheeri Jeerraj v. M.G.G. and K.M.W. Union, AIR 1969 SC 530, Keats Lewis Marthoyer Consolidated Coller Ltd. 1911 SC 641, Abraham v. Mac Fisheru Ltd., 1925 2 KB 18, Beads v. King, 22 J.C.L. (III). As has been mentioned earlier the birth of Chapter IV was necessitated due to decision of Prabodh Verma's case. Its effect is that those teachers who were appointed during 9th and 19th January, 1978 have become entitled to be permanent teachers against substantive vacancies by operation of law, without facing any committee or commission or Board. They are not required to pass through any eligibility test. But in between passing of Ordinance 8 of 1978 its challenge in High Court, grant of interim orders, its striking down and then the Supreme Court decision circumstances entirely changed because of Act V of 1982 and appointment of ad hoc teachers under Removal of Difficulties Orders. Therefore, when the Supreme Court set aside the order of this court in Prabodh Verma's case and directed the reserve-pool- teachers to be appointed against substantive vacancies then a piquant situation arose. On the one hand were the teachers whose merit was that they had worked for a short while during strike period on the other hand were those who had been appointed ad hoc and had been working for the last two to three years. If no effort would have been made to protect the interest of ad hoc teachers it would have resulted in injustice to them. Therefore the Legislature while adding Chapter IV- A to the Act providing for treating reserve-pool-teachers working in any institution as substantive appointee and filling up any vacancy in future by appointing them only made provision by enacting section 33-A for treating ad hoc teachers appointed under Removal of Difficulties Order as substantive appointees. The legislative intention of accommodating one without being unjust to another is already discernable not only from the circumstances which compelled the Legislature to give up its policy for the time being of appointing teachers selected from commission only but also from combind reading of Chapter IV- A and Section 33-A. Both these provisions, therefore, have to be read and construed in a manner which may advance the objective of keeping the balance even. In absence of Section 33-A the addition of Chapter IV- A would have resulted in grave injury to ad hoc teachers, who may have been working for number of years. Although it resulted in upsetting the laudable objective of Act V of 1982 of appointing a teacher selected by Commission but in view of changed circumstances this probably was the best that could have been done.;