- (1.) D. K. Seth, J. The order dated 21st February, 1992 being Annexure-1 to the writ petition is under challenge. By the said order the dispute with regard to the seniority between the petitioner and the respondent No. 1 was determined holding the respondent No. 5 senior to the petitioner, while deciding the same the promotion of the petitioner to the C. T. grade teacher by order dated 15th Septem ber, 1980 was held to be effective from 1st November, 1973 instead of 8th July, 1968 the date mentioned in the said order of promotion dated 15th September, 1980 (Annexure 3 to the writ petition ).
(2.) LEARNED counsel for the petitioner Mr. Mahesh Gautam in support of his con tention contended that the petitioner was appointed in JIC grade on 8th July, 1962. He was confirmed as Assistant teacher on 8th July, 1968. Whereas the respondent No. 5 appointed first on 7th September, 1970 in C. T. grade as an Assistant teacher tem porarily and thereafter he was appointed as teacher in Sanskrit on 12th July, 1971. By order dated 15th September, 1980 (An-nexure-3) the petitioner was Promoted to C. T. grade w. e. f. 8th July, 1968. Against the said order the respondent No. 5 preferred an appeal. By order dated 2nd June, 1986 the appeal was allowed. On 6th June, 1986 the petitioner moved an application for set ting aside the said order. By an order dated 15the September, 1988 the order dated 2nd August, 1986 was cancelled (Annexure-3-A) and the petitioner was declared senior to respondent No. 5. By an order dated 21st February, 1992 a three member committee had set aside the order dated 15th Septem ber, 1986 declaring the respondent No. 5 senior to the petitioner. On these facts he assailed the order dated 21st February, 1992 on four fold grounds: (a) It is the Director who can decide the issue. The three member Committee is incompetent and has no jurisdiction to decide the issue. (b) The decision of the said three member committee to the effect that by reason of the Government order dated 25th January, 1947 the petitioners' promotion in C. T. grade would not be effective prior to 1st November, 1973 cannot be sustained in view of the provision incorporated by way of amendment in the U. P. Intermediate Education Act, 1921 brought into being by means of U. P. Act 26 of 1975 and conse quent amendment brought about on 9th December, 1976 in Regulation 7 Chapter II of the Regulations framed under the U. P. Intermediate Education Act, 1921 as well as the clarification issued by the Director of Education (Intermediate) in its Circular dated 24th November, 1976 that the Government order dated November, 1976 that the Government order dated 25th January, 1974 was no more effective after 1975 amendment. (c) A situation which became final by reason of order dated 15th September, 1986 (Annexure-3a) canceling the order dated 2nd August, 1976 could not be altered by the Committee on account of lapse of time par ticularly when the petitioner was granted selection grade scales of pay w. e. f. 1st July, 1979 on the basis of his appointment given on 8th July, 1962. (d) That the order was passed without giving the petitioner an opportunity of hearing, therefore, the same is bad. Mr. H. N. Tripathi, learned counsel for the respondents on the other hand op posed the contention of Mr. Gautam, learned counsel for the petitioner on the ground that the question of competence and jurisdiction of the three member commit tee, a technical objection, cannot stand in the way because of the simple reason that the retrospective fixation of promotion in C. T grade w. e. f. 8th July, 1968 is per se a nullity and void ab-initio. Therefore, it does not require any declaration as such. Accord ing to him to respondent No. 5 having been appointed in the C. T. grade on 12th July, 1971 remained senior to the petitioner until 15th September, 1980. The petitioner was promoted to C. T grades by order dated 15th September, 1980 with retrospective effect w. e. f. 8th July, 1968. the order of promotion was issued by reason of the Government order for automatic promotion. Such order of automatic promotion could be granted to the petitioner either by virtue of Govern ment order dated 25th January, 1974 or by reason of he amendment brought about by Act 26 of 1975 in the U. P. Intermediate Education Act and the consequent amend ment brought about on 9th of December, 1976 in Regulation 7 Chapter II of the Regulations framed under the said Act. the 25th January, 1974 Government order specifically prescribed that such automatic promotion could be given to teachers work ing in J. TC. grade continuously for a period of five years but in no such promotion could be effected prior to 1st November, 1973. By reason of such clear specification, by no stretch of imagination the petitioner could be granted promotion effective before 1st November, 1973 if such promotion is granted by virtue of the said 1974 order. According to him, if the contention of Mr. Gautam is accepted by reason of the clarification issued by the Circular dated 24th November, 1976 that the said 1974 order became inoperative after the 1975 amendment Act, in that event the promo tion could be given only by virtue of their amendment refereed to above. There being no indication that those amendment would have retrospective effect there was no scope for giving retrospective effect to such promotion from a date prior to the date of amendment brought about. He had con fined his argument only on those aspect. After having heard learned counsel for the parties it appears that the facts are some what admitted as indicated above. Ad mittedly, the petitioner was appointed in J. T. C. grade on 1st of July, 1962 and was confirmed on 8th July, 1968 and remained in the said grade until the order of promotion dated 15th September, 1980 was issued. The said order was issued admittedly persuant to 1975 amendment in the Act and the 1976 amendment in the Regulation.
(3.) MR. Gautam had never seriously contended that the said amendment was in tended to be effective retrospectively. Be that as it may the 1975 Act does not appear to be retrospectivey in operation. It is an established principle, of law that unless the intention in expressed or implied in the legislation the same cannot be of retrospec tive operation. It is an established principles of law that unless the intention is expressed or implied in the legislation the same can not have retrospective operation. The in tention is to be gathered either from the provision expresed or implied. MR. Gautam has not been able to point out anything so as to enable this court to hold the same retrospective in operation. I have also not been able to pursuade myself to find out anything which expressly provide that the said amendment was retrospective in opera tion. I have also not been able to trace out any implication by which it can be said that the legislation had intended its retrospec tive operation. The relevant amendment brought about by U. P. Act 26 of 1975 for present purpose is that relating to section 16-G by which it was provided that the conditions of service of the persons employed in a recogniesed institution shall be governed by the Regulation prescribed and the agreement between the management and such employee. But any agreement contrary to the provisions of the Act or the Regulation shall be void. The expresion used in the said amended section is to the extent "shall begoverned by such conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prescribed by Regula tions. . . . . . . . . . . . . . . . . . . . . . as it is inconsistent. . . . . . . . . . . . . . . . . . . shall be void. " In no uncertain term the legislate we has used the word "shall". The use of the expression "shall" clearly indicates the operation as perspec tive and not retrospective.;