Smt. Anita Bhardwaj vs State Of U.P. And 4 Others
2018 Latest Caselaw 3604 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved On:-01.11.2018
 
Delivered On:-13.11..2018
 
Court No. - 40
 

 
Case :- WRIT - A No. - 23572 of 2018
 

 
Petitioner :- Smt. Anita Bhardwaj
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Bheem Singh
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Ajit Kumar,J.

This petition questions the validity of Section 33(G)(1) of the U.P. Secondary Education Services Selection Board Act 1982 as amended on 22.03.2016 (U.P. Act No.7 of 2016) annexure 5 to the writ petition whereby the benefit of regularization under Section 33(G) has been limited only to Teachers, other than Principals and Head Masters. Reliance has been placed by Sri Bheem Singh, learned counsel for the petitioner on the Apex Court judgment in the case of State of Tamil Nadu and others Vs. K. Shyam Sunder and others (2011) 8 SCC 737 to buttress his submissions.

Learned counsel contends that in view of the definition of the word Teacher as enunciated in Section 2(k) of the U.P. Secondary Education Services Selection Board Act, 1982, denial of the benefit of regularization to Principals and Head Masters is discriminatory and is hit by the aforesaid definition in which no amendment has been carried out. It is therefore urged that the impugned amendment is ultra virus Section 2(k) of the 1982 Act and otherwise also is an arbitrary exercise of power keeping in view the fact that in the past, Head Masters and Principals had also been extended the benefit of regularization.

We have considered the submissions raised as well as the judgment relied on by the learned counsel for the petitioner and have also heard the learned standing counsel for the State.

The amendment which has been brought about has no ambiguity and the legislature consciously has recorded a clear intention in the matter of extending the benefit of regularization only to Teachers and not to Principals and Head Masters under Section 33-G of the Act. The impugned section as it stands today is extracted hereinunder :-

"Section 33-G. Regularisation of certain more appointments against the short term vacancies - Any teacher, other than the Principal or the Head Master, who -

(a) was appointed by promotion or by direct recruitment in the lecturer's grade or trained graduate grade on or after August 7, 1993 but not later than January 25, 1999 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) order, 1981 as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy;

(b) was appointed by promotion or by direct recruitment on or after August 7, 1993, but not later than December 30, 2000 on adhoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade;

(c) possesses the qualifications prescribed under, or is exempted from such qualification in accordance with, the provisions of the Intermediate Education Act, 1921;

(d) has been continuously serving the institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2016:

(e) Has been found suitable for appointment in a substantive capacity by the selection committee referred to in clause (a) of sub-section (2) of Section 33-C in accordance with the procedure prescribed under clause (b) of the said sub-section;

Shall be given substantive appointments by the Management.

(2)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment;

(b)_if two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first.

(3) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.

(4) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under the said sub-section shall cease to hold the appointment on such date as the State Government may by order specify.

(5) Nothing in this section shall be contrued to entitled any teacher to substantive appointment if on the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment Act), 2016 such vacancy had already been filed or selection for such vacancy has already been made in accordance with this Act.

(6) The services of the adhoc teachers and the teachers who have been appointed against short term vacancies shall be regularised from the date of commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment Act), 2016.

(7) Reservation Rules shall be followed in regularization of adhoc teachers and teachers who are appointed against short term vacancies.

(8) Adhoc teachers, who have not been appointed either in accordance with the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 or in accordance with Section 18 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 and are otherwise getting salary only on the basis of interim/Final orders of the court shall not be entitled for regularisation."

The said amendment limits regularization in respect of teachers. Any teacher who may have been working on an adhoc basis as a Principal or a Head Master cannot be regularized as a Principal or a Head Master but if such a teacher has worked as a teacher on adhoc basis having been appointed between the cut of dates and has continued as such and otherwise qualifies to be extended the benefit of regularization, such a teacher will also be entitled for the benefit of regularization.

Section 2(k) of the 1982 Act is extracted hereinunder :-

"(k) 'Teacher' means a person employed for imparting instruction in an institution and includes a Principal or a Headmaster."

It is correct that for the purpose of the Act, the word Teacher includes a Principal or a Head Master but looking to the provisions of the U.P. Secondary Education Services Selection Board Rules 1998 we find that the procedure for selection of Teachers and Principals or Head Masters being different and their duties and the responsibilities being more of an administrative nature, is clearly spelt out from the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder. The qualifications are also different. Mode of recruitment also includes extending the benefit of regularization. Employer has the right to define the choice and mode of recruitment by regularization. In such circumstances it cannot be said that in the garb of classification, any discrimination has been committed as the Principals or the Head Masters form a different class keeping in view the nature of their duties and responsibilities.

There is one more proposition of law which deserves to be discussed namely, there is no discretion left with this Court as there is no ambiguity in the provisions. Unless the statute itself provides for two options, a discretion cannot be exercised by the Court to give a different interpretation to the provisions that are explicit. Thus, it is not open to this Court to virtually legislate and include the benefit of regularization for a Head Master or Principal of an institution managed under the provisions of the 1921 Act and the appointments made keeping in view of the provisions of 1982 Act and the Rules framed thereunder. The legislative intent being clear, there is no scope to read beyond the statute either by any inference or by implication by taking aid of the definition clause.

In the absence of any element of arbitrariness or discrimination we do not find that the provisions of Section 33 G, as it stands today, offends the definition of the word Teacher as contained in Section 2(k) of the 1982 Act. We therefore do not find any reason to accept the arguments on behalf of the petitioner so as to interfere in this matter. Consequently the petition has to fail.

It will however be open to the State Government to take any policy decision, in case it so chooses and in that event if the State Government takes a decision to extend the benefit of regularization to such class of persons, the dismissal of this writ petition will not be an impediment.

The writ petition is accordingly consigned to records.

Order Date :- 13.11.2018

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