Ram Pal Singh vs State Of U.P. And Others
2012 Latest Caselaw 6231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 

 
Case :- SPECIAL APPEAL No. - 1946 of 2010
 

 
Appellant :- Ram Pal Singh
 
Respondents :- State of U.P. and others
 
Appellant's Counsel :- Rajesh Kumar, G.K. Singh, Satish Mandhayan
 
Respondents' Counsel :- C.S.C., R.K. Singh, Siddharth Khare
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Pradeep Kumar Singh Baghel, J.

(Delivered by Hon'ble Sudhir Agarwal, J)

1. Heard Sri Rajesh Kumar, Advocate, for petitioner-appellant (hereinafter referred to as "appellant") and Sri R.K. Singh, Advocate, for respondents.

2. This Intra Court Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment dated 28.10.2010 of learned Single Judge dismissing appellant's Writ Petition No. 36726 of 2010.

3. The dispute relates to seniority and in the context of eligibility for promotion, meaning and effect of the words "continuous regular service" contained in Rule 14 of U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the "Rules, 1998 "). It is also argued that learned Single Judge ought not to have answered himself this question when in other matters, there is already a reference made to Larger Bench.

4. Facts giving rise to the present dispute revolve in narrow compass and it would be useful to have a retrospection thereof for better understanding.

5. Municipal Inter College, Fatehgarh, District Farrukhabad (hereinafter referred to as "College") is a secondary educational institution recognised by U.P. Board of High School and Intermediate, governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). Since the College is in grant-in-aid also, teaching and non teaching staff, for the purpose of salary, is governed by U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act, 1971") and for the purpose of recruitment of teaching staff, U.P Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as "Act, 1982") and Rules and Regulations framed thereunder govern it.

6. One Assistant Teacher (L.T. Grade), namely, Shiv Raj Singh Chauhan, after attaining the age of superannuation, and at the end of session, retired on 30.6.1989 resulting in a substantive vacancy of Assistant Teacher (L.T. Grade) in the College.

7. The vacancy was notified to U.P. Secondary Education Services Selection Board (hereinafter referred to as "the Board") on 13.8.1989. Since the candidate recommended by Board did not become available for appointment in the College, procedure for ad hoc appointment was initiated.

8. Though petitioner's ad-hoc appointment has been regularized by the educational authorities, but here also we are constrained to observe that some glaring facts have been omitted, which, if correct, show something patently illegal rendering entire transaction of regularization, void ab-initio. In para 4 of writ petition, the appellant himself has pleaded that the vacancy of Assistant Teacher occurred due to retirement of one Shiv Raj Singh Chauhan on 30.6.1989. It was notified to Commission on 13.8.1989. The advertisement was published in daily news-paper "Dainik Jagran" on 18.12.1989. Thereafter in para 5 of writ petition, things have gone ante-dated inasmuch there he has pleaded that he applied pursuant to the advertisement for ad-hoc appointment and was duly selected for the post, and, by letter dated 16.12.1989, appointed on the post of L.T. Grade Teacher. The appointment was also approved by DIOS vide Letter No. 8753-56/89-90 and it was again approved on 3.7.1990. The averments contained in para 4 and 5 of the writ petition are reproduced as under:

"4. That, a post of Assistant Teacher fell vacant in the college on the retirement of Shri Shiv Raj Singh Chauhan on 30.06.1989. The vacancy was notified to the commission on 13.08.1989 and it was advertised in the Daily News paper Dainik Jagran Dated 18.12.89 for Ad-hoc appointment in L.T. Grade.

5. That, the petitioner has passed M.A. (Sociology) and B.Ed. and being eligible for the post of L.T. Grade applied for ad-hoc appointment. He was duly selected for the post and by letter dated 16.12.1989 was appointed on the post of L.T. Grade Teacher. The District Inspector of Schools granted approval to the appointment of the petitioner by letter dated 16.12.1989 and letter no. 8753-56/89-90. The respondent no. 3 again by letter dated 3 July 1990 granted approval."

9. It is really surprising that on the same date, everything is said to have been accomplished, i.e., advertisement, selection, appointment and approval, which is self speaking to show illegality in the claim set up by appellant in respect to his appointment. We, however, do not propose to go further on this issue since the issue involved in this appeal is slightly otherwise, but leave open to educational authorities to look into this aspect of the matter and after making an appropriate enquiry, pass appropriate order in accordance with law.

10. We now proceed from the stage, the DIOS approved ad-hoc appointment vide letter dated 3.7.1990. The aforesaid approval was granted subject to the following conditions:

^^1& ek/;fed f'k{kk lsok vk;ksx ls p;fur vH;FkhZ ds vkus ij Lor% lsok lekIr gks tk;saxsA

vFkok

2& blds igys iM+us okyk 31 twu ij lsok lekIr gks tk;sxhA

3& vkjf{kr lewg ds v/;kid ds dk;ZHkkj xzg.k djusij lsok Lor% lekIr gks tk;sxhA^^

"1. Service shall terminate by itself on joining of a candidate selected by the Secondary Education Services Selection Board.

Or

2. Service shall terminate on 31st June falling prior thereto.

3. Service shall terminate by itself on assumption of charge by Teacher of the reserved category.

(English Translation by the Court)

11. After expiry of session and in accordance with condition no. 2 of approval order dated 3.7.1990, the appellant was not allowed to function in the Session commencing in July, 1990. The, appellant, thus, came to this Court in Writ Petition No. 17296 of 1990 seeking following reliefs:

"a) a writ of mandamus commanding the respondents not to interfere in the services of the petitioner as L.T. Grade teacher M.I.C. Fatehgarh.

b) a writ of mandamus commanding the respondents to allow the petitioner to continue on the post till the regular selection by the Commission is made.

c) a writ of mandamus commanding the respondents to pay the salary to the petitioner regularly with effect from 30.6.1990."

12. The above Writ Petition was disposed of at the time of admission itself, ex parte, on 30.8.1990, with following directions:

"The respondents are directed to treat the petitioner in service and to pay his salary in accordance with law. It is, however, made clear that in case any regularly selected candidate or a pool teacher has already joined or whenever such candidate is made available and he joins in that event the services of petitioner shall automatically come to an end...."

13. Pursuant thereto, the appellant had continued to work.

14. Section 33-B came to be inserted by U.P. Act No. 1 of 1993 in Act, 1982, with effect from 7.8.1993. The appellant approached educational authorities to extend benefit thereof. DIOS accepting his claim got regularization proceedings initiated through a selection committee. Pursuant to the recommendation thereof, the DIOS passed an order of regularization on 15.10.1994 regularizing appellant as Assistant Teacher (L.T. Grade) with effect from 7.8.1993. The qualification of appellant mentioned in the regularization order is B.A., B.Ed.

15. A post of Lecturer (Sociology) fell vacant due to retirement of Sri V.C. Gangwar on 30.6.1998. One Sri Udai Prakash Agnihotri and another Sri Babu Ram Shakya working on the post of Assistant Teacher (L.T. Grade) staked their claim for promotion on the aforesaid post of Lecturer. Their claims were referred by College to DIOS for consideration alongwith appellant, since, in the meantime, he had also acquired post graduate qualification i.e. M.A. In the aforesaid recommendation letter, Sri Babu Ram Shakya was shown senior most while appellant was shown at Sl. No. 2 and Udai Prakash Agnihotri was placed at Sl. No. 3 taking their dates of appointment as 1.3.1975, 16.12.1989 and 5.3.1990 respectively. The Management's letter said that there are 13 sanctioned posts of Lecturers and, therefore, two ought to have been reserved for Scheduled Caste but only one Scheduled Caste Lecturer, namely, Motil Lal Samar, was working, therefore, vacancy in question can be filled by treating it reserved for Scheduled Caste candidate and, hence, promotion of appellant was recommended.

16. The matter of promotion was considered by the Selection Committee and pursuant to its recommendation, Joint Director of Education, Kanpur Region, Kanpur (hereinafter referred to as "JDE") recommended appellant's name for promotion as Lecturer (Sociology). Sri Udai Prakash Agnihotri assailed the aforesaid selection and recommendation, made in favour of appellant, in Writ Petition No. 41707 of 2000, which was allowed vide judgment dated 8.3.2010. The operative part of judgment reads as under:

"From a bare reading of the aforesaid rule, it is apparently clear that the Joint Director is obliged to consider the cases of the candidates on the basis of records with reference to sub-rule (3) of Rule 14 and the Joint Director is, thereafter, obliged to place the records before the Selection Committee referable to sub-section (1) of Section 12 of Act, 1982.

Since in the facts of the present case the aforesaid exercise has not been undertaken and the Regional Joint Director of Education has not considered the claim of the petitioner vis-a-vis, that of the respondent no. 4 before placing the records before the Selection Committee, the impugned order cannot be legally sustained. Consequently the order dated 28th August, 2000 is hereby set aside. Let the Regional Joint Director of Education, Kanpur do the needful in terms of sub-rule 5 of Rule, 14 of Rules, 1998 within four weeks from the date a certified copy of this order is filed before him. He shall thereafter place the records of the petitioner and respondent no. 4 before the Selection Committee which shall take final decision in the matter within a further period of four weeks. The decision so taken shall be communicated to the inspector for necessary action.

This Court may clarify that if the authorities come to the conclusion that respondent no. 4 is entitled for such promotion, then it would logically follows that he would become entitled to the salary from the date he has actually worked as Lecturer under the earlier order of promotion dated 28th August, 2000. However, if the case is otherwise, notional promotion may be recommended by the Selection Committee in favour of the petitioner, but payment of salary as lecturer in his favour shall take effect from the date of promotion only."

17. Consequent thereto, the matter was again examined by JDE and he passed order dated 13.8.2010 holding Sri Udai Prakash Agnihotri senior to appellant. He also held that reservation quota from source of promotion was complete. Accordingly, he held that Sri Udai Prakash Agnihotri is eligible for promotion to the post of Lecturer (Sociology) and directed DIOS and Management to take further steps for his promotion accordingly. This order was assailed by appellant in Writ Petition No. 63726 of 2010.

18. Sri Udai Prakash Agnihotri was initially appointed as Assistant Teacher (C.T. Grade) on 5.3.1980, and, after completion of ten years' service, accorded pay scale of L.T. Grade with effect from 5.3.1990 vide DIOS's order dated 23.4.1990.

19. The appellant claimed that being an appointee since 16.12.1989 in L.T. Grade, may be ad-hoc, he is senior to Sri Udai Prakash Agnihotri (respondent no. 5 before this Court). It is contended that for eligibility for promotion to the post of Lecturer, service of appellant must reckon from 16.12.1989 and not with effect from 7.8.1993 or 15.10.1994. In other words, he claimed that his ad-hoc service followed by regularization must be given due credit for the purpose of seniority and eligibility. He further argued that in any case, for the purpose of eligibility, it should reckon from his initial appointment i.e. ad-hoc appointment. The required five years "continuous regular service" shall not exclude his continuous ad-hoc service followed by regularization. The ad-hoc appointment was also made under the Act, 1982 i.e. Section 18 read with Removal of Difficulties Order, 1981, hence such service cannot be said to be not a regular service.

20. In the context of eligibility for promotion, learned counsel for appellant submitted that there are several contradictory judgments of learned Single Judges and, therefore, his Lordship (the Learned Single Judge) maintaining judicial decorum ought to have referred the matter to Larger Bench, as was done, already, in Writ Petitions No. 15074 of 2002 and 56317 of 2003.

21. He, however, could not dispute that the issue has yet not been decided by Larger Bench. Since this appeal is before a Larger Bench i.e. Division Bench, this Court itself may consider and decide this issue so as to settle it which is causing lot of litigation in this Court and also resulting in an uncertain atmosphere on account of unclear position of law in educational institutions brooding heart burning amongst teaching staff which in longer run is neither in larger interest of educational institutions nor the students at large.

22. The learned Standing Counsel and Sri Singh for respondents agreeing to the submission that the issue deserves to be settled now, contended that the view taken by learned Single Judge is legally sound and perfect, therefore, this Court should retain the same and decide the issue accordingly.

23. We first proceed to consider the issue relating to eligibility for promotion.

24. Before coming to the real controversy and its adjudication, it would be appropriate to have a bird eye view of the relevant provisions relating to issue in question.

25. Earlier Regulation 6 Chapter-II of the Regulations framed under Act, 1921 provided one of the eligibility for promotion to the post of Lecturer, as "five years substantive service" in the feeding cadre.

26. After enactment of Act, 1982, the U.P. Secondary Education Services Commission Rules, 1983 (hereinafter referred to as "Rules, 1983") were framed under Act, 1982. Rule 9 (1) thereof provides eligibility for promotion as hereunder:

"9. Procedure for appointment by promotion-(1) Where any vacancy is to be filled by promotion, all teachers working in L.T. or C.T. grade, who possess the minimum qualifications and have put in at least 5 years continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion to the Lecturer or L.T. grade, as the case may be, without their having applied for the same."

27. The difference between Regulation 6 Chapter-II and Rule 9 of Rules, 1983 was that, earlier the incumbent was required to possess "five years substantive service" but under Rule 9 of Rules 1983, the requirement was "five years continuous service" on the date of occurrence of vacancy.

28. Rules, 1983 were substituted by U.P. Secondary Education Services Commission Rules, 1995 (hereinafter referred to as "Rules, 1995") wherein also eligibility for promotion provided under Rule 14 (1) was as hereunder:

"14. Procedure for recruitment by promotion- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates (L.T.) grade or Certificate of Teaching (C.T.) grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates (L.T.) grade, as the case may be, without their having applied for the same."

29. Rule 14 (1) did not make any difference so far as the requirement of "five years continuous service" as contemplated earlier in Rule 9 (1) of Rules, 1983, and, therefore, the position, in this regard, remain the same.

30. Act, 1982 has undergone certain major amendments by U.P. Act, No. 25 of 1998 published in U.P. Extraordinary Gazette dated 27.7.1998, but it was given effect from 20.4.1998. Making the procedural rule in conformity with Act, 1982, as it stood after amendment, a new set of Rules were promulgated in 1998 i.e. Rules, 1998. In Rule 14 (1) thereof a substantive change was made, as is apparent from the following:

"14. Procedure for recruitment by promotion- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications, prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates grade, as the case may be, without their having applied for the same."

31. As is evident, in the earlier two sets of Rules, i.e. Rules, 1983 and Rules, 1995, phrase used was "five years continuous service", but in Rules, 1998, it became "five years continuous regular service".

32. It appears to us that legislature realized that earlier phrase was liable for misconstruction. The service which ought not to have been credited for the purpose of eligibility etc., may take advantage of lack of clarification about the kind of service to be taken into consideration for eligibility, and, thus, changed the phrase and made it "five years continuous regular service". However, the Legislature inserted the word "regular" though initially under Regulation 6 Chapter-II, it was "substantive service". We shall however test the effect of the above change with more indepth scrutiny.

33. The term "Substantive Appointment" in the Rules i.e. Rule 2 (d) of Rules, 1998 is defined as "an appointment, not being an ad-hoc appointment, on the post of a teacher made in accordance with the provisions in the Act and the rules made thereunder and includes the appointments regularised under Section 33-A or 33-B or 33-C".

34. The "substantive service", rendered pursuant to "substantive appointment", is, therefore, clearly other than service rendered pursuant to "ad-hoc appointment". However, in none of the Rules as noticed above, relevant for eligibility, the rule framing authority has referred the word "substantive".

35. The term "regular service" has not been defined. In Rule 14 (1) of Rules, 1998, the term "regular" has been used and not "substantive" and that is how, this controversy has arisen. We are supposed to resolve by finding out true intention of rule framing authority.

36. The submission of learned counsel for appellant is that "five years continuous regular service" on the first day of year of recruitment does not mean "five years continuous service in substantive capacity after regularization". The import of Rule is that incumbent must have worked continuously having been appointed in accordance with procedure prescribed under Act, 1982 read with Rules and Regulations framed thereunder and the Removal of Difficulties Order, if any. In other words, it would be deemed to be a continuous regular service irrespective of nature of appointment whether ad hoc, officiating or substantive. He contended that Hon'ble Single Judge has clearly erred in law in taking an otherwise view of the matter by relying on decisions of this Court in Arvind Kumar Sharma and others Vs. State of U.P. and others (Civil Misc. Writ Petition No. 56126 of 2010) decided on 14.9.2010 and Sambhoo Prasad Vs. Authorized Controller, Sarva Hitaishi Inter College, Ghaziabad and others 2008 (4) ESC 2923 (All) and has wrongly dissented earlier decision of coordinate Bench in Smt. Suman Bhatnagar Vs. State of U.P. 2006 (1) ESC 348 (All).

37. Learned counsel, appearing on behalf of respondents, submitted that service rendered by an ad-hoc Teacher having been appointed under Section 18, read with relevant Removal of Difficulties Orders, cannot be said to be a "regular service", since it is a different kind of service than the "regular service". Therefore, the phrase "continuous regular service" cannot be construed so as to give any credit to service rendered by an ad-hoc Teacher so long as he continued to work on ad-hoc basis. They also pointed out that services of ad-hoc appointees, since is not a regular service, is required to be regularized to the extent it is within the ambit of Sections 33-A, 33-B and 33-C of Act, 1982, as the case may be, which itself suggest that an ad-hoc appointee is not rendering regular service. The regularization can not relate back, but it will always be prospective. It is only from the date of regularization a deeming fiction under relevant statute operates that the incumbent has to be treated regularly appointed Teacher. After regularization only one can claim to be rendering a "regular service" and not while working as ad-hoc Teacher. The common defence of respondents is that decision of learned Single Judge in the judgment under appeal is perfectly correct and interprets Rule 14 of Rules, 1998 in correct perspective, hence must be sustained by this Court.

38. It appears that there are some decisions of this Court, wherein inconsistent views have been expressed by various Benches of Hon'ble Single Judges. The decisions are on the interpretation of Rule 9 of Rules, 1983, and 14 of Rules, 1995 and 1998 which pertain to eligibility and not seniority.

39. The issue, in our view, is quite simple and straight but due to broad and wide thinking in various earlier decisions, the straight effect of Rules has got jumbled so as to create a lot of confusions. At no point of time, it appears that attempt was made to find out whether "regular service" is synonymous with "substantive service" or not and at another stage, judgments in different contexts using similar terms have been followed in a case where they were not aptly applicable.

40. Real crux, up for consideration in the context of Rule 14 (1) of Rules, 1998, is, whether the words "continuous regular service" would include within its ambit the ad-hoc service rendered by a teacher after appointment as per the procedure prescribed under the Removal of Difficulties Order read with Section 18 of Act, 1982, or, the "continuous regular service" would mean a regular service akin to substantive service, or the term "regular service" has its own meaning but different from "ad-hoc service".

41. The first case in the chain came to be decided in the context of Rule 9 and 9-B of Rules, 1983. Rule 9 talked of procedure for appointment by promotion and Sub-rule (1) thereof, relevant for our purpose, has already been reproduced above. Rule 9-B talked of procedure for ad-hoc promotion. The two Rules were considered in Ram Swaroop Vs. State of U.P. 1996 (28) ALR 662. A question came up for consideration whether phrase "continuous service" would mean "continuous substantive service", which was the view taken by educational authorities, to determine eligibility of a Teacher for promotion under Rule 9 and 9-B of Rules, 1983. Hon'ble S.R. Alam, J. (as His Lordship then was) took the view that "five years service in substantive capacity" is not the requirement under Rule 9 and 9-B for giving promotion to a Teacher in higher grade. Referring to definition of "Teacher" under Section 2-K of Act, 1982, the Court observed that term "Teacher" includes an ad-hoc Teacher also, and, in absence of any provision otherwise, the service rendered by such a Teacher, having been appointed or remained on ad-hoc basis, cannot be excluded to determine eligibility under Rule 9 or 9-B of Rules, 1983. The Court said, when rule framing authority has consciously omitted to use the word "substantive", it is not open to educational authorities to read the same in Rule 9 and 9-B of Rules, 1983. "Continuous service" means if a person initially appointed on ad-hoc basis after following the procedure prescribed in Act, 1982, i.e., Section 18 read with relevant Removal of Difficulties Orders, looking to the nature of vacancy, has been regularized under applicable provisions of regularization under Act, 1982, the entire service including the service rendered as ad-hoc shall be valid to determine eligibility and will satisfy the requirement of "continuous service" in Rule 9 and 9-B of Rules, 1983. The Court further said that ad-hoc appointment herein is not de-hors the Rules, i.e., not patently illegal, but it is a kind of appointment permissible under the Statute, and, having been made in accordance with the procedure, may be a different one, prescribed for such ad-hoc appointment, the service rendered as ad-hoc appointee cannot be excluded when the Rule itself does not contemplate such exclusion.

42. This decision came to be considered in Committee of Management, B.D. Bajoria Inter College, City and District Saharanpur and others Vs. Director of Educations (Secondary), U.P. and others (2000) 1 UPLBEC 46. There the issue was with reference to promotion on the post of Principal. Chapter II Regulation I Appendix A of regulations framed under Act, 1921 provides that for appointment to the post of Principal, besides other qualifications, the incumbent must possess "four years of teaching experience in Class 9th to 12th". The argument was advanced that this "four years' teaching experience" contemplated in Regulation I would not include experience while working as part-time Teacher or an ad-hoc Teacher. There was no occasion involving interpretation of Rule 9 or Rule 14, as the case may be, of any of the Rules framed under Act, 1982. The Court, however, relied on decision in Ram Swaroop Vs. State of U.P. (supra) for the purpose that therein it was held that ad-hoc service can also be taken into consideration. It is in this context, Hon'ble M. Katju, J. (as His Lordship then was) said that Regulation I talks of only "four years of teaching experience" and, therefore, experience gained while working on ad-hoc basis cannot be excluded for the reason that ad-hoc appointment in case of Teacher is not illegal as such, since permitted under the Statute, it is a legal appointment.

43. Therefore, in respect to Rule 9 and 9-B of Rules, 1983, we have direct authority of Ram Swaroop Vs. State of U.P. (supra), but decision in Committee of Management, B.D. Bajoria Inter College (supra) was in the context of Chapter II Regulation I having a different phrase language.

44. Then comes Yogendra Pal Singh Vs. District Inspector of Schools, Saharanpur 2001 (3) ESC 1110 wherein, while considering Rule 14 of Rules, 1995 which provided "five years continuous service", this Court (a Single Judge) took a view that ad-hoc service, even if appointment made under the Act and the Rules framed thereunder, would not count for holding a teacher eligible for appointment to Higher Post. The petitioner Yogendra Pal Singh's promotion was held irregular on the ground that he lacked eligibility by not completing "five years continuous service" on the relevant date i.e. occurrence of vacancy. The order dated 12.1.1998 passed by educational authorities came up for consideration. Here it is evident that Rules, 1998 could not have been under consideration since the educational authority passed order on 12.1.1998 and in fact this Court considered eligibility of petitioner Yogendra Pal Singh under Rule 14 (1) of Rules, 1995 wherein, as already discussed above, phrase was "five years continuous service". However, there is a Note which said that regular service rendered in any other recognized institution shall be counted for eligibility, unless interrupted by removal, dismissal or reduction to a lower post. The argument advanced was that this regular service in Note to Rule 14 (1) shall also govern the main provision which uses the phrase "five years continuous service". The Court in para 15 of judgment said:

"15. ... Period during which a teacher has worked on 'ad-hoc'/ Officiating/'stop-gap'/ part time basis cannot be taken into consideration for promotion under this provision inasmuch as his working on such basis cannot be included while computing 'five years continuous regular service' under law."

45. This Court in Yogendra Pal Singh Vs. District Inspector of Schools (supra), in respect to interpretation of Rule 14 of Rules, 1995 was confronted with the decision in Ram Swaroop Vs. State of U.P. (supra) but His Lordship proceeded to observe that judgment in Ram Swaroop Vs. State of U.P. (supra) is per incuriam. The difference in Rules, 1983 and Rules, 1995 is that Rules 9 and 9-B did not have the Note as it was appended to Rule 14 (1) of Rules, 1995. The Court observed that phrase "continuous service" in Rule 14 (1) is qualified with word "regular" used in the Note appended to Rule 14 (1). To hold decision in Ram Swaroop Vs. State of U.P. (supra) per incuriam, the Court referred to the fact that Rule 14 and Appendix 'A' to Rules, 1983 was not looked into by the Court in Ram Swaroop Vs. State of U.P. (supra). It has also not considered Regulation 3 Chapter 1 which contemplates seniority to be computed on the basis of date of substantive appointment of a particular Teacher and unless the Teacher is substantively appointed, he cannot claim to have born in the cadre and question of considering 'seniority' in Appendix 'A' under the relevant Rules would not arise. The Court also observed that Rule 14 of Rules, 1995 was not under consideration in Ram Swaroop Vs. State of U.P. (supra).

46. In our respectful opinion, it was not at all necessary in Yogendra Pal Singh Vs. District Inspector of Schools (supra) to observe that Ram Swaroop Vs. State of U.P. (supra) is a judgment per incuriam, for the reason that it was in the context of a different set of Rules where the Note-1, as was available in Rule 14 (1) of Rules, 1995, was not existing and, therefore, the judgment on its own was distinguishable.

47. In Kusum Lata Ujalayan Vs. Joint Director of Education and others (2002) 3 UPLBEC 2665, Rule 14 of this new Rules i.e. Rules, 1998 came to be considered. Therein educational authorities held the petitioner, Kusum Lata Ujalayan ineligible for promotion having not rendered "five years continuous substantive service". The Court (Hon'ble A.K. Yog, J.) in para 5, 6, 7 and 8 referred to Rules, 1983 and Rules, 1995 and observed that whatever the rules existed at the relevant time, the position in law was same and they did not require a C.T. Grade Teacher, before he is to be considered in higher grade, to have completed "five years continuous service on substantive basis". Thereafter the Court proceeded to refer Rules, 1998 and observed that here also there is no requirement of "five years substantive continuous service". In fact there it was Rule 16 which was up for consideration and not Rule 14 of Rules, 1998. Rule 16 (1) provides procedure for ad-hoc appointment by promotion and not procedure for promotion which is governed by Rule 14. Distinction between Rule 14 (1) and 16 (1) of Rules, 1998 is that requirement of service for the purpose of eligibility in Rule 14 (1) is "five years continuous regular service on the first date of the year of recruitment", while in Rule 16 (1) "five years continuous service" as such on the date of occurrence of vacancy. The word "regular" does not find mention in Rule 16 (1) of Rules, 1998. It is in this backdrop, the Court referred to pari materia provisions, i.e. Rule 16 (1) in the earlier Rules of 1983 and 1995 and found that throughout for the purpose of ad-hoc appointment by promotion, the requirement with respect to length of service has been "five years continuous service". The word "regular" find mention in Rule 14 (1) of Rules, 1998 did not occur in Rule 16 (1) of Rules, 1998. It is in this backdrop and looking to the plain language of Rule 16 (1) of Rules, 1998, the Court said:

"10. It may be noted that even the said Amending Act No. 25 of 1998 was published in U.P. Gazette on 25.7.1998 but it was given retrospective effect. Section 1 (2) of the said Amending reads "It shall be deemed to have come into force on April 20, 1998." The reason appears to be that before Act No. 25 of 1998 was published in the Gazette, new Rules called, U.P. Secondary Education Service Selection Board Rules, 1998 were published vide notification dated July 13, 1998. As a consequence of the aforementioned U.P. Act, No. 25 of 1998 and Rules, 1998 referred to above, the procedure for ad hoc appointment by promotion w.e.f. the enforcement of the aforesaid Act, 1998 and Rules, 1998 has to be dealt with as per Rule 16 of Rules, 1998 which merely prescribes, apart from the other conditions, that the Management shall consider the cases of such Teachers who were working in certificate of teaching course (C.T. Grade) possess the qualifications prescribed under the Intermediate Education Act, 1921 and the regulations made thereunder and have put in at least five years' continuous service as such on the date of occurrence of vacancy for promotion to the trained graduate (L.T. Grade) on the basis of seniority subject to rejection of unfit withouth their having applied for the same. The Explanation appended to Rule 16 further provides that the services rendered in any other recognised institution were to be counted for eligibility unless interrupted by removal, dismissal or reduction to a lower. From the Explanation it is explicitly clear that the Rule did not require at all substantive continuous service of five years as otherwise the Explanation ought to have been 'substantive service' rendered in any other institution. The language implied for framing relevant rule dealing with the procedure for ad hoc appointment by promotion thus no where requires that teachers should have been substantively appointed and rendered substantive service of five years."

"12. I am of the opinion that there is no hurdle or obstacle in interpreting five years continuous service to include both regular/substantive or temporary or substantive or ad hoc tenure. There is no reason to deviate from this approach. A Teacher who Teaches and discharge duties possessing minimum qualification as is being discharged by other counter part, though appointed and working on substantive basis, makes no difference as far as expression of word 'teaching' is concerned. Hence, the benefit of ad hoc promotion should not and could not be denied on any logical or rational basis."

48. Having said so, the Court (Hon'ble A.K. Yog, J.) then sought fortification of his view by referring to this Court's decision in Committee of Management, B.D. Bajoria Inter College (supra). Obviously, this decision, therefore, cannot be taken recourse to interpret phrase "five years continuous regular service" used in Rule 14 (1) of Rules, 1998.

49. In Nand Kishore Vs. Joint Director of Education, Allahabad Region, Allahabad and others 2003 (2) UPLBEC 1570, the eligibility of petitioner, Nand Kishore, was to be considered in the light of Rule 14 (1) of Rules, 1998. The educational authorities took the view that service rendered while appointed on ad-hoc basis would not qualify for determining eligibility under Rule 14 (1). This Court, unfortunately, could not notice the fact that Kusum Lata Ujalayan Vs. Joint Director of Education (supra) was a case relating to Rule 16 (1) of Rules, 1998 and relying on the same, observed that therein it has been held that even temporary or ad-hoc service would count, and following the same, by a short judgment, writ petition was decided accordingly. This Court had no occasion to consider the difference in the language of Rule 14 (1) and 16 (1) of Rules, 1998, and, that is how, had no occasion to consider that Kusum Lata Ujalayan Vs. Joint Director of Education (supra) was not an authority to consider the eligibility of a Teacher for promotion under Rule 14 (1), since therein, it was Rule 16 (1), which was up for consideration.

50. The above decisions show that the educational authorities read the word "regular" with "substantive" which was not accepted by the Court observing that this phrase did not find mention in the Rule but at no point of time, in the aforesaid decisions, there was any occasion to consider whether the phrase "continuous regular service" can include within its ambit the service rendered on ad-hoc basis even though under the provision made in Act, 1982, that is an exception, contemplating transient appointments.

51. In Smt. Suman Bhatnagar Vs. State of U.P. (Supra), an Hon'ble Single Judge interpreted Rule 14 (1) of Rules, 1998 holding that an appointment which is ad-hoc, if made in accordance with Rules and not de-hors, would result in regular service. The word "regular" cannot be equated with the word "substantive".

52. In Smt. Suman Bhatnagar Vs. State of U.P. (supra), this Court followed decision in Committee of Management, B.D. Bajoria Inter College (supra), and took the view that the term "regular service" does not mean "substantive service" and, therefore, ad-hoc service followed by regularization shall qualify for the purpose of eligibility under Rule 14 (1) of Rules, 1998. The effect of regularization was discussed in para 12 of judgment and this Court said:

"Regularization of the services of the petitioner does not make his earlier services irregular. The ad hoc tenure attains the status of a substantive tenure which process is termed as regularisation. Regularisation means in simple language to put in order and to bring about in accordance with Rues. An appointment, which is ad hoc, is made in accordance with Rules of substantive appointment, so as to enable a candidate to join the main stream cadre. For the purposes of eligibility what is required is continuity in service. The services of the petitioner continued un-interrupted even on ad hoc basis and were subsequently regularized."

53. This is how we have discussed the one set of judgments in the context of different set of Rules. Then comes the decision in Sambhoo Prasad Vs. Authorized Controller (supra) wherein a learned Single Judge (Hon'ble Sabhajeet Yadav, J.) discussed the import of phrase "regular continuous service" in Rule 14 (1) of Rules, 1998 and disagreeing with the view taken by another Single Judge in Smt. Suman Bhatnagar Vs. State of U.P. (supra), held that ad hoc service, even if followed by regularization, shall not count, to the extent it is prior to regularization. This decision was followed by another Single Judge (Hon'ble V.K. Shukla, J.) in Arvind Kumar Sharma and others Vs. State of U.P. and others (supra).

54. We find that in Arvind Kumar Sharma and others Vs. State of U.P. and others (supra), the actual issue was regarding service rendered by a Subject Expert teacher appointed on part time basis, or, may be full time basis, not under the provisions of Act, 1982, but, in accordance with scheme of Government contained in Government Orders dated 6.6.2001 and 30.6.2003. The occasion came on account of insertion of Sections 21-E in Act, 1982 vide U.P. Secondary Education Services Selection Board (Amendment) Act, 2006 which provided for absorption of Subject Experts against substantive vacancies. Petitioner was appointed as Subject Expert under the scheme of the aforesaid two Government Orders, and, after his absorption, he claimed that his entire service as Subject Expert, prior to absorption, should also be computed for the purpose of considering his eligibility for promotion under Rule 14 (1). This Court negatived the claim by observing:

"Seeing the nature of appointment of the petitioner as Subject Expert, that it was made under the Scheme without there being any sanctioned post on fixed honorarium with no further right to be conferred and with liberty to work in any other separate establishment by no stretch of imagination same can be considered as regular continuance in service as Assistant Teacher in L.T. Grade. Appointment of the petitioner as Subject Expert was not made against any post rather it was under scheme wherein post was not at all there and as an alternate arrangement said arrangement has been made on fixed honorarium. Appointment made under the scheme dated 11.10.1999 as Subject Experts cannot be equated with the appointment made under the provision of U.P. Act V of 1982 and for the purposes of Rule 14 of U.P. Secondary Education Services Selection Board, Rules 1998 five years regular continuous service as Assistant Teacher has to be counted when appointment has been made against sanctioned post as per the provision as provided under U.P. Act No. V of 1982 and Rules framed thereunder. Service rendered by the petitioner as Subject Expert cannot be counted towards computation of five years regular continuous service as there is material distinction in between nature of appointment vis-a-vis scheme and vis-a-vis the provision of U.P. Act No. V of 1982 both are not at all comparable, as such factual position which is emerging that petitioner has acquired status of L.T. Grade vide order dated 12.09.2007 when against existing L.T. Grade post he has been absorbed."

55. The aforesaid decision came to be affirmed by a Division Bench in Special Appeal No. 1691 of 2010 (Arvind Kumar Sharma Vs. State of U.P. and others) decided on 25.10.2010. The Division Bench observed:

"The qualifications are also prescribed under the U.P. Intermediate Education Act coupled with the 1998 Rules particularly Rule 14 as discussed in detail by the learned single Judge. The same requires regular continuous service as a sine-qua-non in the feeder cadre to enable a candidate to claim promotion. The candidate would be eligible only if he has rendered regular continuous service in the cadre as a regular LT grade teacher and not as a subject expert teacher. It is only from the date of his absorption under Section 21-E that such a teacher gets the status of a regular appointment and the continuity in service has to be seen thereafter for the purpose of promotion."

"The aforesaid section, therefore, gave an opportunity for such teachers to be appointed on substantive basis. This clearly demonstrates that prior to such appointment by way of absorption, the subject expert teachers had a different status altogether and they were not regularly appointed teachers in continuous substantive capacity as contemplated under Rule 14 for the purpose of promotion."

56. It may be worthy to notice that learned Single Judge in Arvind Kumar Sharma and others Vs. State of U.P. and others (supra) fortified his view taking recourse to decision in Sambhoo Prasad Vs. Authorized Controller (supra). While affirming the judgment of learned Single Judge, the Division Bench, however, said"

"The conclusion drawn by the learned single Judge, therefore, in sum and substance does not suffer from any infirmity and for the reasons stated herein above, we do not find any merit in this appeal which is hereby dismissed."

57. The Division Bench did not specifically refer to any other decision relied on by the learned Single Judge.

58. In Vijay Bharat Singh Vs. State of U.P. and another (Writ Petition No. 36401 of 2012) (decided on 27.7.2012), Hon'ble V.K. Shukla J. again followed the decision in Sambhoo Prasad Vs. Authorized Controller (supra) and Arvind Kumar Sharma and others Vs. State of U.P. and others (supra) while interpreting the words "continuous regular service" under Rule 14 (1) of Rules, 1998.

59. In the present case, one more aspect may be noticed at this stage. Petitioner, though was regularized by order dated 15.10.1994 but it was given effect from 7.8.1993 i.e. the date with effect wherefrom Section 33-B came to be inserted in Act, 1982. We find that it was in accordance with the view taken by this Court in Smt. Shahida Parveen Vs. State of U.P. and others (Writ Petition No. 75590 of 2005) decided on 17.1.2006. Considering Rule 14 (1) of Rules, 1998, the Court held that once the regularization order is passed, that would relate back to the date of amendment of the statute i.e. insertion of provision permitting regularization and the period of service at least therefrom would count.

60. We have given indepth analysis of the relevant Statutes as a whole. The historical background and evolution of statute from time to time reflects a consistency in legislative policy which has marched forward to make explicit intention of legislature, in making requirement of certain length of service as an eligibility condition for promotion in higher grade/post. We shall look into this issue from various angles.

61. Since beginning, i.e., vide Regulation 6, Chapter II framed under Act, 1921, it was "five years substantive service". It stood replaced by the three sets of Rules framed under Act, 1982, using the phrase "five years continuous service" and then "five years continuous regular service".

62. After enactment of Act, 1982, the first set of Rules were framed in 1983. The phrase "five years continuous service" used for the first time in 1983, was repeated in 1995 also, whereafter in 1998 it has been added with the word 'regular' along with term "five years continuous service". The intention is very clear. The legislature did not intend to take into account any service whatsoever, but it contemplates a service of the kind and nature which is neither illegal nor irregular, nor otherwise defective in any manner, but it should be regular.

63. Prior to 1982, Regulations contemplated a more specific kind of service i.e. "substantive service" but now the words "regular service" have been used. The change or difference it has made in the statute has to be examined in the context of objective, spirit and requirement of relevant statute itself. This aspect needs discussion from various angles.

64. Act, 1921 primarily stressed upon timely appointment of a teacher with requisite qualification, proper selection and scrutiny, so that, selected and appointed candidate must best serve the educational institution, which is the prime objective, and central idea for the benefit of entire student community at large. The Legislature knew, if any casual, non-serious and irregular appointment is allowed to be made, it is bound to erode educational standard which in its turn may dent quality of education to students. Various administrative controlling measures by way of statutory provisions were taken in Act, 1921 to ensure proper standard and quality of education, while leaving simultaneous actual administration in the hands of those who own and manage concerned educational institutions. It is with this objective, the provisions for educational qualification of teachers, procedure of their selection, advertisement of vacancies etc. were made in Act, 1921 and the Regulations framed thereunder.

65. Act, 1921 and Regulations framed thereunder, in normal and regular course of smooth functioning, did not contemplate casual, ad-hoc, stop gap or insouciant or fortuitous appointment of a teacher in an educational institution. Such an appointment, if allowed, instead of furthering the objective of best quality education, may, on the contrary, could have caused erosion therein. A casual or ad hoc teacher may not serve the institution with utmost sincerity since his attention would be to look forward for a secured career. Accountability and answerability would be another casualty.

66. However, there can always be some circumstances or enforcing events, where despite best efforts of management and educational authorities, in taking steps for making substantive and regular appointments, so that there may not be any gap between occurrence of vacancy and appointment, still, for the reasons beyond their control, they might not be able to make regular and substantive appointments in time and may have to resort for temporary appointment(s) to meet exigencies arising in a particular circumstance. From the very nature of these prevailing circumstances, difference in procedure of two kinds of appointments is writ large. It is the failure of timely recruitment by observing regular procedure which could have created a situation asking for an ad-hoc appointment. This has, thus, to be done in a summary manner so that immediate arrangement is made till appointment by regular procedure is available.

67. It is in these circumstances, Regulations under Act, 1921 contemplated various rights and benefits to such teachers only as are appointed substantively, and not to those, whose appointments are made for meeting some casual exigency. The later category of teachers normally paid salary irrespective of nature of appointment but for other aspects, like seniority, promotion etc., they were kept in a different category since obviously belong to a different stream.

68. A person who has come and joined service after fulfilling statutory requirement of a clear appointment, constitutes a member of service and is different than that who has come to be appointed as a temporary measure to meet an exigency of service without following normal and ordinarily applicable procedure for selection and appointment.

69. In the context of seniority the Apex Court recognized appointees of these two streams as constituting two different classes which cannot be equated with each other. In Shitala Prasad Shukla Vs. State of U.P. & others AIR 1986 SC 1859 the Apex Court said in para 9 as under:

"An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-a-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. ..."

(emphasis added)

70. Experiencing exploitation and other discrepancies in the matter of selection in the hands of privately managed secondary educational institutions, legislature intervened to provide an independent, impartial and expert body for recruitment, and that is how Act, 1982 came to be enacted. It intended to establish a Selection Board (earlier called Services Commission) for making selection of teachers in Secondary institutions recognized under Act, 1921.

71. This statute intended to make selection through Selection Board in respect of vacancies existing or likely to fall vacant during the year of recruitment. It imposes an obligation upon management of secondary institutions to determine vacancies, existing or likely to fall vacant, during the year of recruitment, and, notify the same to Selection Board in such manner and through such officer or authority, as may be prescribed. A time schedule is also prescribed within which such vacancies are to be notified so that steps may be taken for timely recruitment and appointment of teachers, in order to avoid any gap in occurrence of vacancy and actual appointment. This is the regular and normal procedure prescribed for recruitment of a Teacher in Act, 1982.

72. There is an exception by way of Section 18 of Act, 1982 which contemplates an interregnum gap likely to occur in actual occurrence of vacancy and availability of a candidate by the Selection Board. To avoid any possible loss of education to student community at large, the legislature provided a via media by way of permitting an ad-hoc appointment to be made during this interregnum.

73. In Prabhat Kumar Sharma and others Vs. State of U.P. and others (1996) 10 SCC 62 the Apex Court observed that ad-hoc appointment of Teachers contemplated in section 18 is only transient in nature, pending selection and appointment of a teacher by Selection Board (earlier known as "Selection Commission").

74. The Scheme of Statute, therefore, clearly contemplates an appointment of a Teacher only when the various steps for recruitment through Commission are followed, incumbent selected and recommended by the Commission is appointed and such a person is treated to be a Teacher under the Act, 1982 with all necessary incidents of service and that is regular way of appointment.

75. The ad-hoc appointment is a kind of exception to the regular mode of recruitment and appointment and, therefore, to treat both together, per se, would amount to treating unequals as equal.

76. This view is further strengthened from some other angles also.

77. The term "Regular" has been defined in Concise Oxford Dictionary, Ninth Edition, which reads as under:

"regular /ˈreɡjulə/ adj. & n. -adj. 1 conforming to a rule or principle; systematic. 2 (of a structure or arrangement) harmonious, symmetrical (regular features). 3 acting or done or recurring uniformly or calculably in time or manner; habitual, constant, orderly. 4 conforming to a standard of etiquette or procedure; correct; according to convention. 5 properly constituted or qualified; not defective or amateur; pursuing an occupation as one's main pursuit (cooks as well as a regular cook; has no regular profession) ... "

78. In Law of Lexicons the expression 'regular' and 'regular services' have been assigned meanings at page 1638-1639 as under:

" Regular - Webster defines "regular" to mean conformable to a rule; methodical; periodical.

"REGULAR" is derived from "regula", meaning "rule", and its first and legitimate signification, according to Webster, is "conformable to a rule' agreeable to an established rule, law, or principle, to a prescribed mode, or according to established, customary forms."

Regular- Conformable to rule; periodical; recurring or repeated at fixed times or uniform intervals; properly constituted; normal; marked by steadiness or uniformity of action, procedure or occurrence.

Regular services- The expression 'regular forces' mean officers and soldiers who by their commission, terms of enlistment, or otherwise are liable to render continuously for a term military service to His Majesty in every part of the world or in any specified part of the world. R.v. Governor of Wormwood Scrubbs Prison, (1948) 1 All ER 438, 441 (KBD). [Army Act. S. 190(8)]"

79. In Rule 14 of Rules, 1998, the words "regular" and "continuous", both stress upon the word "service". Eligibility condition requires that incumbent must have five years of regular service and also it should be a continuous service. From its very context, the term "regular service" or "continuous regular service" would be in contradiction to words "ad-hoc service" or "ad-hoc continuous service".

80. The stress in the judgments, which are in favour of recognizing ad-hoc service for the purpose of eligibility, appears to be on the fact that Act, 1982 itself contemplates ad-hoc appointment and a procedure for making such appointment is also prescribed therein, i.e., Section 18 read with Removal of Difficulties Order and Rule 16 of Rules, 1998. The view is that the ad-hoc appointment, as is normally known, is an appointment de-hors the rules, which is not the case in hand. Here an ad-hoc appointment is an appointment under the Statute and, therefore, it is a legal and valid appointment, may be for a transient period. Being legal service, rendered while working on ad-hoc basis, therefore, should not be excluded since an ad-hoc Teacher also discharges the same duties, receives the same salary and possesses the same qualification, as is the case in respect to the Teachers appointed on substantive basis on the recommendation by Service Selection Board. Fallacy lies here by treating that an ad-hoc appointment, if is contemplated in a Rule or Statute, would be regular appointment and for that reason alone, it can be equated with an appointment made on regular basis in accordance with normal procedure of selection under that Statute. One has to understand that an ad-hoc appointment is an exception to the procedure of appointment contemplated in Act, 1982. It is a transient appointment having precarious and fortuitous tenure. If for various other reasons, there is no distinction in the matter of salary, that would not mean that an ad-hoc appointment can be equated with an appointment made on the recommendation of Selection Board. The Statute itself contains and enables justification for this view. The ad-hoc appointees are bound to make way to the candidates recommended by Selection Board for appointment irrespective of their period of service etc. The Legislature, in his wisdom, taking a considerate view to the ad-hoc appointees stepped in by inserting provisions for regularization of ad-hoc appointees. That is how, we find Sections 33-A, 33-B and 33-C etc. The act of regularization under the aforesaid provisions pertaining to regularization of ad-hoc appointees itself means that something, which is not regular, has to be regularized. Regularization is an act of making something regular, which, otherwise in law or fact, is not regular. If everything is already regular, the question of regularization would not arise. If a Statute, which is enacted to meet a particular contingency, takes care of certain exigencies, the special transient provisions to meet exigency cannot be equated with general provision. Mere fact that an ad-hoc appointment was contemplated in Act, 1982, and, the Statute provides the procedure therefor, would not have equated it with the term "regular service" for the reason that Legislature has provided a different procedure and itself has not equated such ad-hoc appointees with other appointees unless the regularization is made under the statutory provisions. It is also interesting to notice that provisions pertaining to regularization, viz. in the present case it is Section 33-B wherein appellant was regularized, talks of a deemed valid appointment made under Act, 1982, once the ad-hoc appointee is regularized according to procedure prescribed in Section 33-B. Meaning thereby, so long as the incumbent is not regularized under Section 33-B, he cannot be deemed to be a regularly appointed Teacher. That being so and the regularization under Section 33-B is prospective, it will not encompass within its ambit the entire ad-hoc service prior to regularization. In taking this view, we find a direct authority of Apex Court wherein a similar provision existed. In K. Madalaimuthu and another Vs. State of Tamil Nadu and others (2006) 6 SCC 558, an emergency provision, which was part of the service rules, namely, Tamil Nadu State and Subordinate Services Rules, 1955 (hereinafter referred to as "Rules, 1955") was invoked to make temporary appointments since the regular recruitment under the Rules was to take time. Rule 10 (a) (i) (1) of Rules, 1955 reads as under:

"Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possess the qualifications prescribed for the post otherwise than in accordance with the said rules.

Provided that no appointment by direct recruitment under this clause shall be made of any person other than the one sponsored by the Tamil Nadu Public Service Commission from its regular or reserve list of successful candidates to any of the posts within the purview of the Tamil Nadu Public Service Commission.

81. It was claimed that the temporary appointment made was part of appointment procedure of such appointment under the Rules and, therefore, service rendered pursuant to such appointment should be credited, if the incumbent has continued and subsequently appointed after a regular appointment. Rejecting the submission, the Court held that the appointment contemplated in Rule 10 (a) (i) (1) of Rules, 1955 is de-hors the relevant recruitment rules inasmuch it was a recruitment to meet a kind of emergency contemplated therein and not a regular procedure of recruitment under the Rules. The appointment made under Rule 10 (a) (i) (1) of Rules, 1955 is subject to regular appointment to be made by the competent authority in accordance with recruitment rules, and, that being so, the Rule itself contemplate that it is not a regular appointment or regular service and, therefore, the service rendered pursuant to such an appointment cannot be equated or clubbed with the service rendered after regular appointment. This decision, in our view, very aptly applies and answer the entire issue.

82. Then comes some precedents distinguishing "ad-hoc service" from "regular service".

83. In Punjab State Electricity Board and others Vs. Jagjiwan Ram and others (2009) 3 SCC 661, the Court distinguished service of a temporary, ad-hoc or work charge employee vis-à-vis a regular service. A provision requiring that nine years of regular service will draw a certain promotional time bound revised scale came to be considered as to what "regular service" would mean. The Court observed, when somebody is required to be regularized under any statute or a scheme framed by the employer, meaning thereby that he would become member of regular establishment from the date of regularization. His service rendered before becoming member of regular service, thus, cannot be clubbed with regular service, unless there exists a specific provision in this regard in the Statute. Referring to an earlier decision of three-Judge Bench of Apex Court in State of Haryana Vs. Haryana Veterinary & AHTS Association and another AIR 2000 SC 3020, the Court observed that term "regular service" is not a mere continuous service. The service rendered either on ad-hoc basis or as stop gap arrangement cannot be held to be regular service.

84. Similarly, in State of Punjab and others Vs. Ishar Singh and others (2002) 10 SCC 674 and State of Punjab and others Vs. Gurdeep Kumar Uppal and others AIR 2001 SC 2691, it was held that ad-hoc service rendered cannot be clubbed with regular service for the purpose of grant of revised pay scales, senior/selection grade, proficiency step-up and for fixation of seniority etc. The Court equated the "regular service" having a character of permanency which is not available to an ad-hoc appointee by very nature of appointment. This is evident in the case in hand also where ad-hoc appointment under Section 18 of Act, 1982 is subject to the certain contingencies and on happening of any of those contingencies, ad-hoc appointee is liable to cease. However, if he satisfies the requirement of the provisions made for regularization, it can be done and not otherwise.

85. In Metropolitan Transport Corporation Vs. V. Venkatesan AIR 2010 SC 206, while distinguishing the term "regular service" with short-term daily wage employment, the Court noticed the characteristic of permanency attached with "regular service" and observed:

"A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."

86. Distinction in a "regular appointment" and others has also been noticed by the Constitution Bench in Secretary, State of Karnataka and others Vs. Umadevi and others (2006) 4 SCC 1 and it said:

"... unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules."

87. When an appointment would not be said to be ad-hoc, stop gap or fortuitous came to be considered in Rudra Kumar Sain & others Vs. Union of India & others AIR 2000 SC 2808 and the Court observed:

"In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc"." (emphasis added)

88. Here the insistence on "with the approval and consultation of the appropriate authority" is of great relevance. Act, 1982 contemplates that appropriate authority for recruitment of a Teacher is Commission and, therefore, for non fortuitous and non ad-hoc appointment, the appointment must have been made after selection and recommendation by Commission. An appointment under Section 18 of Act, 1982 is termed as "ad-hoc appointment". It is not made after consultation with or recommendation of appropriate authority i.e. Commission. Therefore, by very nature, it is a different kind of appointment and would lead to a different service, which cannot be equated with the word "regular service" used in Rule 14 of Rules, 1998. Otherwise, as we have said earlier and repeat here also, it would amount to treating two different and unequal services as equal which would be per se violative of Article 14 of the Constitution.

89. In Smt. Suman Bhatnagar Vs. State of U.P. (supra), the Court tried to distinguish the word "regular" from "substantive" and held that the two cannot be held synonymous. At this stage, even if we go by this interpretation, it also cannot be said simultaneously that the term "regular" can be equated with "ad-hoc". An ad-hoc appointment requires regularization but not a regular appointment. A "regular service" is one which is already regular under the relevant Statute and do not require regularization. Regularization is nothing but an act to bring something, which is otherwise not in conformity with law, to be in conformity with law. For all purposes, an "ad hoc appointment", which requires regularization, without which, the incumbent can have no right to hold the post or to continue indefinitely, cannot be held to be a synonym to "regular appointment". Similarly, a service rendered by ad-hoc appointee cannot be held synonymous or at par to the regular service rendered by an employee appointed in regular manner. The learned Single Judge has confined his observations and discussions to distinguish "regular service" from "substantive", but, unfortunately, has not made any discussion as to whether an "ad-hoc service" can be equated with "regular service", and, if so, under which principle of law. In our view, "continuous regular service" would mean the service rendered after regular appointment in accordance with the scheme of Statute or when the Statute itself confers the status of regular appointment by deeming fiction, i.e., the provisions relating to regularization, from the date of regularization. This would definitely be other than fortuitous, stop gap, ad-hoc appointment and service rendered pursuant thereto. We, therefore, find ourselves in respectful disagreement with the learned Single Judge rendering the decision in Suman Bhatnagar Vs. State of U.P. (Supra) and Committee of Management, B.D. Bajoria Inter College (supra). We find ourselves in agreement with the view taken in Sambhoo Prasad Vs. Authorized Controller (supra) (decided by Hon'ble Sabhajeet Yadav, J.) and Vijay Bharat Singh Vs. State of U.P. and another (supra) (decided by Hon'ble V.K. Shukla, J.), which are consistent to what we have said above.

90. Learned Single Judge has not adverted on the question of seniority though the impugned order also determine seniority of appellant vis-a-vis Udai Prakash Agnihotri and it was also under challenge in the writ petition. Since the parties have advanced their arguments at length, we do not find any necessity that for this purpose alone, the matter need be remanded to learned Single Judge and, therefore, ourselves have proceeded to decide this issue.

91. JDE has held Udai Prakash Agnihotri appointed as Assistant Teacher (L.T. Grade) in 1990 being senior to appellant by ignoring ad-hoc service rendered by appellant i.e. from 16.12.1989 till the date of regularization i.e. 7.8.1993.

92. There is no dispute between the parties that for the purpose of determining seniority, it is Chapter II Regulation 3 of Regulations under Act, 1921 which will govern this issue. Relevant Regulation 3 (1) (b) reads as under:

"(b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age;" (emphasis added)

93. For the purpose of seniority, it is the date of substantive appointment in the grade which is relevant and nothing else and this issue has been determined finally by a Division Bench of this Court in Smt. Prem Balika Rai Vs. Regional Inspectress of Girls School 1993 (2) UPLBEC 872 and the Apex Court's decision in Shitala Prasad Shukla Vs. State of U.P. (supra). The ad-hoc service rendered by appellant, therefore, would not count for seniority.

94. We may, at this stage, also deal with a submission that learned Single Judge, instead of deciding this issue, ought to have followed the procedure of referring the matter to Larger Bench, in conformity with judicial propriety inasmuch while taking a contrary view to an earlier decision of coordinate Bench, it would not have been proper to decide the issue by taking a different view. The matter should have been referred to Larger Bench, as was done by Single Judge on 4.12.2006 in Writ Petition No. 15074 of 2002 and on 13.8.2009 in Writ Petition No. 38032 of 2006.

95. We are informed that so far as Writ Petition No. 56317 of 2003 is concerned, it has already been dismissed as not pressed on 10.9.2007 by Division Bench comprising of Hon'ble Dr. B.S. Chauhan, J. (as His Lordship then was) and Hon'ble Arun Tandon, J.

96. Be that as it may, it is no doubt true, when there are contrary judgments of coordinate Benches, the propriety and judicial discipline requires the matter to be referred to Larger Bench for resolving the controversy.

97. In the present case also, this procedure could have been followed by learned Single Judge, but it appears to us that subsequently, since, there came a decision in Arvind Kumar Sharma and others Vs. State of U.P. and others (supra) (supra), in which Sambhoo Prasad Vs. Authorized Controller (supra) was followed and Smt. Suman Bhatnagar Vs. State of U.P. (Supra) was not followed and the decision in Arvind Kumar Sharma and others Vs. State of U.P. and others (supra) was confirmed by Division Bench in intra-Court Appeal i.e. Special Appeal No. 1691 of 2010 (Arvind Kumar Sharma Vs. State of U.P. and others), the Hon'ble Single Judge in his wisdom found that the decision following Sambhoo Prasad Vs. Authorized Controller (supra) having already been approved by Division Bench, he can safely follow the said decision herein also and that is how the matter appears to have been decided.

98. On the question of propriety, we need not to deal much since it has already been noticed by Apex Court with indepth observations in Uttar Pradesh Power Corporation Limited Vs. Rajesh Kumar and others (2012) 7 SCC 1 and, therefore, it is superfluous on our part to say anything, but, the circumstances in the present case are different, therefore, it cannot be said that there is an impropriety on the part of Hon'ble Single Judge in proceeding to decide the writ petition.

99. We, however, find it appropriate to express our views referring one more aspect. Two references, made several years ago, are still pending. Many times, when referred questions came up frequently before the regular Courts, the pendency of reference before Larger Bench for such a long time creates lot of complications, functional and otherwise, for the regular Courts in deciding the matter. If a reference made to a Larger Bench is decided within a reasonable time, it would not only resolve the controversy, but, may result in discouraging several cases, which use to come to the Court due to lack of clarity and non resolution of dispute in references. Decision of Larger Bench in a reference matter may result in deciding a number of cases before the Benches of lesser denomination and that would be in the larger benefit of litigant public as also the institution in particular. We, with greatest respect and earnestly request the Hon'ble Chief Justice to look into this aspect of the matter so that the pending references to the Larger Bench may be decided in a reasonable expeditious manner. That would avoid multiplicity of litigation and also frequent litigation involving the same points which are pending before Larger Bench. These observations we have made looking into the peculiar facts of this case and situation which appears to have arisen due to pendency of references before Larger Bench.

100. Be that as it may, since the two questions of law regarding eligibility and seniority involved in this case have been answered by us against the appellant, the judgment under appeal, therefore, has to be affirmed.

101. In the result, the appeal lacks merit. Dismissed.

102. However, there shall be no order as to costs.

Dt. 21.12.2012

PS/Akn