State Of U.P.Throu Secy.Karmik ... vs Ilam Chand Verma And Ors.
2013 Latest Caselaw 1175 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 218 of 2013
 
Petitioner :- State Of U.P.Throu Secy.Karmik Lko.& Ors. 2125(S/S)2006
 
Respondent :- Ilam Chand Verma And Ors.
 
Petitioner Counsel :- C.S.C.
 
Respondent Counsel :- Anurag Srivastava
 

 
Hon'ble Uma Nath Singh,J.

Hon'ble Mahendra Dayal,J.

We have heard learned counsel for the parties and perused the pleadings of Special Appeal, which arises out of a judgment dated 18.4.2012, passed by learned Single Judge, in Writ Petition No. 2125 (S/S) of 2006.

Learned counsel for the State, Smt. Sangita Chandra submitted that the Service Rules sought to be quashed had been notified in the Official Gazette, therefore, it was not in the nature of an office/ government order passed by the Registrar of the Co-operative Societies.   It is also a submission of learned counsel that the writ of certiorari cannot be exercised for quashment of Statutory Service Rules notified in the Official Gazette and rather such statutory provisions can only be declared as ultra vires qua the Parent Act or the Constitution of India.

Learned counsel for the State has placed reliance  on a Three Judge Bench Judgment of the Hon'ble Apex Court  reported in AIR 1985 Supreme Court 167 (Prabodh Verma and others, etc. etc. v. State of U.P. and others and Dal Chand and others, etc. etc. v. State of U.P. and others, etc.) in support of her contention.

On the other hand, learned  counsel Shri Manish Sharma, appearing for respondent no.1 tried to justify the order passed by the learned Single Judge.   We are informed that in respect of  other private respondents, notice has been accepted by one Shri Anurag Srivastava, learned counsel but he is not present  to assist the Court nor is there any request on his behalf for adjournment of the matter.

On due consideration of rival submissions, we are of the view that the appellant State instead of filing this Special Appeal, should have filed a review petition in case such an important question of law has escaped the notice of the Court. For a profitable use, we deem it appropriate to reproduce the relevant paragraphs 31 and 50 of the judgment which appear to be germane for the disposal of the plea raised herein.

"30. A writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such Act or ordinance. The writ of certiorari and the writs of habeas corpus, mandamus, prohibition and quo warranto were known in English common law as "prerogative writs". "Prerogative writs,' are to be distinguished from "writs of right" also known as "writs of course". Writs issued as part of the public administration of justice are called "writs of right" or "writs of course" because the Crown is bound by Magna Carta of 1215 to issue them., as for instance, a writ to commence an action at common law. Prerogative writs are (or rather, were) so called because they are issued by virtue of the Crown's prerogative, not as a matter of right but only on some probable cause being shown to the satisfaction of the court why the extraordinary power of the Crown should be invoked to render assistance to the party. The common law regards the Sovereign as the source. Or fountain of justice, and certain ancient remedial processes of an extraordinary nature, known as prerogative writs, have from the earliest times issued from the Court of King's Bench in which the Sovereign was always present in contemplation of law. (See Jowitt's "Dictionary of Law" vol.2, p. 1885, and Halsbury's "Laws of England", 4th ed., vol. 11, para. 1451, f.n.3).

50. To summarize our conclusions:

(1) A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non- joinder of necessary parties.

(2) The Allahabad High Court ought not to have proceeded to hear and dispose of Civil Miscellaneous Writ No. 9174 of 1978-Uttar Pradesh Madhyamik Shikshak Sangh and Others v. State of Uttar Pradesh and Others-without insisting upon the reserve pool teachers being made respondents to that writ petition or at least some of them being made respondents thereto in a representative capacity as the number of the reserve pool teachers was too large and, had the petitioners refused to do so, to dismiss that writ petition for non-joinder of necessary parties.

(3) A writ of certiorari or a writ in the nature of certiorari cannot be issued for declaring an Act or an Ordinance as unconstitutional or void. A writ of certiorari or a writ in the nature of certiorari can only be issued by the Supreme Court under Article 32 of the Constitution and a High Court under Article 226 of the Constitution to direct inferior courts, tribunals or authorities to transmit to the court the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same.

(4) Where it is a petitioner's contention that an Act or Ordinance is unconstitutional or void, the proper relief for the petitioner to ask is a declaration to that effect and if it is necessary, or thought necessary to ask for a consequential relief, to ask for a writ of mandamus or a writ in the nature of mandamus or a direction, order or injunction restraining the concerned State and its officers from enforcing for giving effect to the provisions of that Act or Ordinance.

(5) Though a High Court ought not to dismiss a writ petition on a mere technicality or because a proper relief has not been asked for, it should not, therefore, condone every kind of laxity, particularly where the petitioner is represented by an advocate.

(6) The Allahabad High Court, therefore, ought not to have proceeded to hear and dispose of the said Civil Miscellaneous Writ No. 9174 of 1978 without insisting upon the petitioners amending the said writ petition and praying for proper reliefs.

(7) By reason of the provisions of section 30 of the General Clauses Act, 1897, read with clauses (54) and (61) of section 3 thereof, it would not be wrong phraseology, though it may sound inelegant, to refer to a provision of an Ordinance promulgated by the President under Article 123 of the Constitution or prior to the coming into force of the constitution of India, by the Governor-General under the Indian Councils Act, 1861, or the Government of India Act, 1915, or the Government of India Act, 1935, as "section" and to a sub-division of a section, numbered in round brackets, as sub-section".

(8) Similarly, by reason of the provisions of section 30 of the Uttar Pradesh General Clauses Act, 1904, read with clauses (40) and (43) of section 4 thereof, it would not be wrong phraseology, though it may sound inelegant, to refer to a provision of an Ordinance promulgated by the Governor of Uttar Pradesh under Article 213 of the Constitution or prior to the coming into force of the Constitution of India, by the Governor of the United Provinces under the Government of India Act, 1935, as "section" and to a sub-division of a section, numbered in round brackets, as "sub-section".

(9) Neither the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance No. 10 of 1978), nor the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Second) Ordinance, 1978 (U.P. Ordinance No. 22 of 1978), infringed Article 14 or Article 16(1) of the Constitution or was unconstitutional or void.

(10) The reserve pool teachers formed a separate and distinct class from other applicants for the posts of teachers in recognized institutions.

(11) The differentia which distinguished the class of reserve pool teachers from the class of other applicants for the posts of teachers in recognized institutions was the service rendered by the reserve pool teachers to the State and its educational system in a time of crisis.

(12) The above differentia bore a reasonable and rational nexus or relation to the object sought to be achieved by U,P. Ordinances Nos, 10 and 22 of 1978 read with the Intermediate Education Act, 1921, namely, to keep the system of High School and Intermediate Education in the State of Uttar Pradesh functioning smoothly without interruption so that the students may not suffer a detriment.

(13) The preferential treatment in the matter of recruitment to the posts of teachers in the recognized institutions was, therefore not discriminatory and did not offend Article 14 of the Constitution.

(14) As the above two classes were not similarly circumstanced. there could be no question of these classes of persons being entitled to equality of opportunity in matters relating to employment guaranteed by Article 16(1) of the Constitution and the preferential treatment given to the reserve pool teachers was, therefore not violative of Article 16(1) of the Constitution.

(15) The case of Uttar Pradesh Madhymik Shikshak Sangh and Others v. State of Uttar Pradesh and Others was wrongly decided by the Allahabad High Court and requires to be overruled.

(16) The termination of the services of the reserve pool teachers following upon the judgment of the Allahabad High Court was contrary to law and the order dated May 21, 1979 of the Government of Uttar Pradesh and the order dated May 29, 1979, of the Additional Director of Education, Uttar Pradesh, were also bad in law.

(17) Each of the reserve pool teachers had a right under U.P. Ordinance No. 10 of 1978 as also under U.P Ordinance No. 22 of 1978 to be appointed to a substantive vacancy occurring in the post of a teacher in a recognized institution which was to be filled by direct recruitment.

(18) Each of the reserve pool teachers who had already been appointed and was continuing in service by reason of the stay orders passed either by the Allahabad High Court or by this Court is entitled to continue in service and to be confirmed in the post to which he or she was appointed with effect from the date on which he or she would have been confirmed in the normal and usual course.

(19) Those reserve pool teachers who were not appointed as provided by U.P. Ordinance No. 10 of 1978 or U.P. Ordinance No. 22 of 1978 were not so appointed because of the interim orders passed by the Allahabad High Court and the judgment of the High Court in the Sangh's case. In view of the fact that this Court has held that the Sangh's case was wrongly decided by the High Court, the injustice done to these reserve pool teachers requires to be undone.

(20) In view of the fact that the vacancies to which these reserve pool teachers would have been appointed have already been filled and in all likelihood those so appointed have been confirmed in their posts, to appointed these reserve pool teachers with effect from any retrospective date would be to throw out the present incumbents from their jobs for no fault of theirs. It will, therefore, be in consonance with justice and equity and fair to all parties concerned if the remaining reserve pool teachers are appointed in accordance with the provisions of U.P. Ordinance No. 22 of 1978 to substantive vacancies occurring in the posts of teachers in recognized institutions which are to be filled by direct recruitment as and when each such vacancy occurs.

(21) This will equally apply to those reserve pool teachers whose services were terminated and who had not filed any writ petition or who had filed a writ petition but had not succeeded in obtaining a stay order, as also to those reserve pool teachers who had not been appointed in view of the interim orders passed by the High Court and thereafter by reason of the judgment of the High Court in the Sangh's case and who have not filed any writ petition.

Thus, the special appeal is disposed of with liberty to appellant State to file a review petition within a week before the learned Single Judge irrespective of the delay occasioned on account of filing of this Special Appeal.

Order Date :- 23.4.2013

Muk