Prabodh Verma & Ors, Vs. State of Uttar Pradesh & Ors [1984] INSC 130 (27 July 1984)
MADON, D.P.
MADON, D.P.
TULZAPURKAR, V.D.
ERADI, V. BALAKRISHNA (J)
CITATION: 1985 AIR 167 1985 SCR (1) 216 1984 SCC (4) 251 1984 SCALE (2)87
CITATOR INFO :
RF 1986 SC1272 (83)
ACT:
Constitution of India-Arts 32 and 226-Writ of certiorari-Nature of Writ of certiorari cannot be issued for declaring an Act or Ordinance as unconstitutional and void- Can only be issued to direct inferior courts, tribunals or authorities to transmit to court the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same.
Advocates Act, 1961-Professional conduct-Duty of an advocate to client and to court-What it Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance No.
10 of 1978) and Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U.P. Ordinance No. 22 of 1978)-Validity of-Whether violative of Arts. 14 and 16(1) of the Constitution-Held valid.
Interpretation-Provisions of an Ordinance-Whether can be referred as "section" end "sub-section".
Procedure-Write Petition under Art. 226 of the Constitution-Persons likely to be affected by the judgment- Necessary parties-Whether High Court should dismiss writ petition for non-joinder of necessary parties.
Practice-Court not to dismiss writ petition on a mere technicality-But must not condone every kind of laxity-Court must insist on proper relief being asked for.
Words and phrases-'Act' and 'Enactment'-Meaning of.
HEADNOTE:
The educational institutions in the State of Uttar Pradesh are governed by the Intermediate Education Act, 1912 (U.P. Act No. 11 of 1921). Section 16-E of the Intermediate Education Act prescribed the procedure for selection of teachers and heads of institutions. Under sub- s. (1) of section 16-E, the of teachers of an institution are to be appointed by the Committee of Management in the manner provided in the said Section. In 1977 there were about 80,000 secondary teachers of recognised institutions and institutions managed by local bodies. Out of them about 60,000 teachers were members of a registered society namely, the Uttar Pradesh Madhyamik Shikshak Sangh (hereinafter referred to as "the Sangh"). On August 9, 1977 the Sangh submitted a charter of demands to the State Government. As the Government did not accept the demands, in response to a call given by the Sangh for an indefinite strike about 90 per cent of the teachers in recognised institutions went on an indefinite strike from December 2, 1977. As the service under a recognised educational institution was an essential service under the Uttar Pradesh Essential Services Maintenance Act, 1966 (U.P. Act No. XXX of 1966) the State Government on December 24, 1977 made and published an order under s. 3 (1) of that Act prohibiting strikes in service under educational institutions. Further, on December 31, 1977, the Governor of Uttar Pradesh promulgated the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) (Amendment) Ordinance, 1977 (U.P. Ordinance No. 25 of 1977. The said Ordinance amended s. 4 of the Uttar Pradesh High Schools and Intermediate colleges(Payment of Salaries of Teachers and Other Employees) Act, 1971 (U.P. Act No. 24 of 1971). The effect of the amendment was that the Director of Education, Uttar Pradesh, could, by general or special order, direct any teacher who went or remained on or otherwise took part in any strike which had been prohibited by an order under s.
3 of the U.P. Essential Services Maintenance Act to resume duty by the day or hour specified in the order and upon the failure of the teacher to resume duty in response thereto his contract of employment with the management became void with effect from the day or hour specified in the direction contained in such order. It was also provided that the management or failing it the Inspector may not with standing anything to the contrary contained in the Intermediate Education Act, 1921, or the Regulations for the time being in force with respect to the mode of selection, appointment or approval of appointment, be competent to appoint on temporary basis any person possessing the requisite qualifications for discharging the duties of the post of any such teacher. By a notification issued on the same date the Director of Education in pursuance of s. 4 of the U.P. Act, No. 24 of 1971 as amended by the said Ordinance No. 25 of 1977 directed the teachers on strike or otherwise taking part in the strike prohibited under s.3 of the U.P.
Essential Services Maintenance Act to resume duty by 11 A.M.
on January 5, 1978. A large number of teachers (2257) who had gone on strike did not resume duty. Accordingly their contacts of employment became void and in order to fill the posts, 2257 persons, including the appellants and petitioners before this Court, possessing the requisite qualifications for discharging the duties of the post of such teachers were appointed on temporary basis between January 9, 1978 and January 19, 1978. Thereafter a settlement took place between the striking teachers and the Government 218 and the services of the said 2257 newly appointed teachers were terminated and the U.P. Ordinance No. 25 of 1977 was withdrawn by the Governor.
On June 24, 1978 the Governor of Uttar Pradesh promulgated the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers Ordinance, 1978) (U.P. Ordinance No. 10 of 1978). The Ordinance provided for the absorption of certain teachers in the institutions recognised under the Intermediate Education Act 1921.
Whenever one of the provisions of U.P. Ordinance No. 10 of 1978 referred to another provision thereof, it used the word "section" or "sub-section" and not "clause" or "sub-clause".
Section 2 of U.P Ordinance No 10 of 1978 gave an overriding effect to the provisions of that Ordinance notwithstanding anything contained in the Intermediate Education Act or any other law for the time being in force. Section 4 of U.P.
Ordinance No. 10 of 1978 was headed "Absorption of Reserve Pool Teachers". Sub s. (1) of section 4 provided that the Inspector including any other officer authorised by the Government to perform all or any of the functions of the Inspector should maintain in the prescribed manner a register of "Reserve Pool Teachers" consisting of persons who were appointed as teachers in any recognised institution situated in the district either by the management or by the Inspector under sub-s. (4) of section 4 of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 while the said U.P.
Ordinance No. 25 of 1977 was in force and who had actually joined their duties in pursuance of the said provision between January 9, 1978 and January 19, 1978. Sub-s. (2) of section 4 of U.P. Ordinance No. 10 of 1978 provided that where any substantive vacancy in the post of a teacher in an institution recognized by the Board was to be filled by direct recruitment, such post should at the instance of the Inspector be offered by the management to a teacher whose name was entered in the register referred to in sub-s, (1).
Both before as well as after the promulgation of U.P.
Ordinance No. 10 of 1978 several vacancies occurred in the post of teachers in recognized institutions which were to be filled by direct recruitment and for this purpose advertisements were given, application were received and applicants were called for interview Meanwhile, the inspectors of schools were given instructions to make appointments in pursuance of Ordinance No. 10 of 1978.
Pursuant to these directions, the selections of the applicants were postponed and some of the vacancies were filled by appointing teachers from the reserve pool as provided by Ordinance No. 10 of 1978. The U.P. Ordinance No. 10 of 1978 could not be made into an Act. Under Article 213 (2) (a) of the Constitution, U.P. Ordinance No. 10 of 1978 would have therefore ceased to operate on or about October 17, 1978. Meanwhile, on October 7, 1978 the Governor of Uttar Pradesh promulgated the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U.P. Ordinance No. 22 of 1978). U.P. Ordinance No. 22 of 1978 repealed U.P. Ordinance No. 10 of 1978 and was given retrospective effect on and from June 24, 1978(the date of U.P. Ordinance No. 10 of 1978), and it was also provided that notwithstanding the repeal of U.P.
Ordinance No. 10 of 1978, anything done or any action taken under that Ordinance should be deemed to have been done or taken under U.P. Ordinance No. 22 of 1978 as if that Ordinance was in force 219 at all material times. The provisions of U.P. Ordinance No. 22 of 1978, which like the U.P. Ordinance No. 10 of 1978 while referring to the provisions also used the word "section" or "sub-section", were in pari materia with those of U.P. Ordinance No. 10 of 1978. In pursuance of U.P.
Ordinance No 22 of 1978, directions were issued by the Secretary, Education Department, Government of U.P. by a telex message dated October 18, 1978, and in pursuance thereof by the Additional Director of Education U.P. by a telex message dated October 19, 1978, to fill the vacancies by making appointments from the reserve pool in-accordance with the provisions of U.P. Ordinance No 22 of 1978.
Thereafter some more teachers from the reserve pool were appointed to the posts which had fallen vacant and which were to be filled by direct recruitment. Thereupon the Sangh along with some of the applicants for the vacant posts filed writ petition in the High Court (Civil Miscellaneous Writ No. 9174 of 1978-Uttar Pradesh Madhyamik Shikshak Sangh and Ors. v. State of Uttar Pradesh and Ors.) praying for a writ, order or direction in the nature of Certiorari to call for record of the case and to quash U.P. Ordinance No. 22 of 1978 and the said telex messages. In the said writ petition the reserve pool teachers who had been appointed and were likely to be affected if the judgment of the High Court was in favour of the petitioners, were not joined as parties to the writ petition. The High Court held that U.P. Ordinance No.22 of 1978 violated the provisions of Articles 14 and 16(1) of the Constitution and accordingly declared the Ordinance to be void and quashed the said telex messages.
The State Government did not appeal against the judgment of the High Court but issued instructions to the effect that the services of the teachers appointed from the reserve pool could not be continued further and that the posts should be filled a fresh by the process of direct recruitment and that no fresh appointment should be made from the reserve pool and no special weightage should be given to teachers in the reserve pool in the matter of future appointments. Several teachers from the reserve pool whose services were so terminated filed writ petitions in the High Court contending that the termination of their services was illegal inasmuch as in respect of those who were appointed under U.P.
Ordinance No. 22 of 1978, they were not parties to the Sangh's petitions and, therefore, the judgment in that case was not binding upon them and that in the case of those who were appointed under U.P. Ordinance No. 10 of 1978, that this Ordinance had not been declared void by the High Court.
They also contended that the termination of their services was illegal inasmuch as the procedure prescribed by s. 16-G (3) of the Intermediate Education Act had not been followed.
Dismissing the writ petition, the High Court held that those petitioners who were appointed under U.P. Ordinance No. 10 of 1978 must be deemed to have been appointed under 220 U.P. Ordinance No. 22 of 1978 and as U.P. Ordinance No. 22 of 1978 had been declared by the High Court to be unconstitutional, the appointments of the petitioners were bad ab initio, and s. 16-G (3) of the Intermediate Education Act was not attracted. Hence these appeals by special leave and writ petitions by the reserve pool teachers whose services were terminated as a result of the judgment of the High Court in the Sangh's case.
Allowing the appeals and the writ petitions, ^
HELD: (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. [261F-G] (2) In the instant case the 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 atleast some of them being made respondents there to 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. [261H; 262A] (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. [262B-C] "A New Abridgement of the Law" by Mattew Bacon. Seventh Edition, Volume 11 at pages 9 and 10. Halsbury's Laws of England, Fourth Edition. Volume 1, para 80, R. v. Glamorganshire Inhabitants, [1700] 1 Ld. Raym. 580, Groenvelt v. Bunwell, [1700] 1 Ld. Raym. 454, Dwarkanath, Hindu Undivided Family v. Income Tax Officer, Special Circle, Kanpur and another, [1965] 3 SCR 536, 540-41 and Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, [1963] Suppl. 1 S.C.R. 676, 286, referred to.
221 (4) Where it is a petitioner's contention that an Act or Ordinance is unconstitutional or void, the proper relief for the petitioners 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 injuction restraining the concerned State and its officers from enforcing or giving effect to the provisions of that Act or Ordinance. [262D] Dwarkanath, Hindu Undivided Family v. Income Tax Officer, Special Circle, Kanpur and another, [1965] 3 S.C.R.
536, 540-41, referred to.
(5) Though neither this Court nor any High Courts should 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. [262E] (6) An advocate owes a duty to his client as well as to the court-a duty to his client to give of his best to the case which he has undertaken to conduct for his client and a duty to assist the court to the utmost of his skill and ability in the proper and satisfactory administration of Justice. An advocate should not measure the quality of work he will put into a case by the quantum of fees he receives.
In our system of administration of the courts have a right to receive assistance the Bar and it is the duty of the advocate who drafts a writ petition or any other pleading to ask for appropriate reliefs. [250A-C] (7) Laxity in drafting all types of pleadings, is becoming the rule and a well-drafted pleading, an exception.
An ill-drafted pleading is an offspring of the union of carelessness with imprecise thinking and its brothers are slipshod preparation of the case and rambling and irrelevant arguments leading to waste of time which the courts can ill afford by reason of their overcrowded dockets. [251E] (8) In the instant case, the High Court 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. [262F] (9) The word 'enactment' does not mean the same thing as 'Act.' Act means the whole Act, where as a section or part of a section may be an enactment. [235G] The Wakefield and District Light Railways Company v. The Wake- 222 field Corporation, [1906] 2 K. B. 140, 145-6 affirmed in [1907] 2 K.B 256, referred to (10) 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 inelegent, 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 Governer-General under the Indian Council Act, 1961, or the Government of India Act, 1915, or the Government of India Act, 1835, as "section" and to a sub-division of a section, numbered in round brackets, as "sub-section". [262G-H] Craies on Statute Law, 7th ed., p. 217. Coke in "The Institutes of the Laws of England". Part IV at page 24, and State of Maharashtra v. Kusum Charudutt Bharma Upadhye, [1981] 83 Bombay Law Reporter 75, 95 S B. referred to.
(11) 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".
[263A,B] (12) Article 14 of the Constitution guarantees to all persons equality before law. Clause (1) of Art 16 guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
Thus Article 16 is an instance of the application of the general rule of equality laid down in Article 14. Article 14, however, does not for-bid classification. The classification to be valid must be founded on an intelligible differentia which distinguishes those that are grouped together from others and the differentia must have a rational nexus or relationship to the object sought to be achieved by the legislation. [253B; D; F] Banarsi Dass and others v. The State of Uttar Pradesh and others, [1956] S.C.R. 357, 361 and In re. The Special Courts Bill, 1978, [1979] 2 S.C.R. 476, 535, referred to.
(13) In the instant case, neither the Uttar Pradesh High Schools and 223 Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. No. Ordinance 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. [263C-D] (14) The reserve pool teachers formed a separate and distinct class from other applicants for the posts of teachers in recognized institutions.
[263D] (15) 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. [263E] (16) The above differntia 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. [263F-G] (17) The preferential treatment in the matter of recruitment to posts of teachers in the recognised institutions was, therefore, not discriminatory and did not offend Article 14 of the Constitution. [263H] (18) 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 [263H; 264A] (19) The case of Uttar Pradesh Madhyamik Shikshak Sangh and others, v. State of Uttar Pradesh and Others was wrongly decided by the Allahabad High Court and requires to be overruled- [264B] Uttar Pradesh Madhyamic Shikshak Sangh and Others v. State of Uttar Pradesh and Others, [1979] Allahabad Law Journal 178, overruled.
(20) The termination of the services of the reserve pool teachers following upon the judgment of the 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. [264C] 224 (21) 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 recognized institution which was to be filled by direct recruitment.
[264D] (22) 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 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. [264E.F] (23) Where a court has passed an interim order which has resulted in an injustice, it is bound at the time of the passing of the final order, if it takes a different view at that time, to undo that injustice as far as it lies within its power. Similarly, where an injustice has been done by the final order of a court, the superior court, if it takes a different view, must, as far as lies within its power, seek to undo that injustice.
(24) 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 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. [264G] (25) 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 appoint 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.
[264H; 265A-B] (26) 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.
[265C-D] 225
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 694, 909, 911, 912, 2307 of 1980, 2931-32 of 1979 and 4 of 1981.
Appeals by Special leave from the Judgments and Orders dated the 11th September, 1979 and Ist August, 1979 of the Allahabad High Court in Civil Misc. P. Nos. Nil, 7045, 7043, 7039, Nil, 7042, 7046 and 4047 of 1979.
With Writ Petitions Nos. 1221-29 1235, 1340-41, 1498, 1572, 1681-82 of 1979, 22, 203, 363 of 1980, 1687, 434 of 1981.
9065, 9863, 10773-76 of 1983.
(Under Article 32 of the Constitution of India) T.U. Mehta, S.K. Sabharwal and D.R. Gupta for the Appellants in CA. No. 694 of 1980.
Shanti Bhushan and S.S. Jauhar for the Appellants in CA. Nos. 2931-32 of 1979.
D,R. Gupta and P.K. Chakravarty for the Appellants in CA. Nos. 909, 911, 912 of 1980 and 2307 of 1980.
D.R. Gupta, P.K. Chakravarty and S.S. Jauhar for the Petitioners in W.P. Nos. 1221-1229, 1340-41, 1681-82, 2931- 32 of 1979.
Anit Dev Singh and S.K. Sabharwal for the Petitioners in WP. No. 1235 of 1979.
Gopal Subramanium and Mrs. Shobha Dikshit for the Respondent (State of U.P.) R K. Garg, R.K. Jain and P.K. Jain for Respondent.
E.C. Aggarwala and M.M. Srivastava for Respondent No. 12.
Meera Agarwal and R.C. Misra for Respondent Nos. 8 and 4 (In CA. No. 912 of 1980 and W.P. No. 4334 of 1980.
Shivpujan Singh for the Appellant in CA. 4 of 81.
S. Markandeya for Respondents 1 to 7 in CA. 4/81.
R.K. Jain, Ravi Prakash Gupta and R.P. Singh for Respondent No. 12 in CA. 4 of 1981.
The Judgment of the Court was delivered by 226 MADON J. The principal question which arises for determination in this group of Appeals by Special Leave and Writ Petitions is the constitutional validity of two Uttar Pradesh Ordinances, namely; (1) the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance No. 10 of 1978), and (2) its successor Ordinance- The Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U P2 Ordinance No. 22 of 1978), which had been struck down by a Division Bench of the Allahabad High Court by its judgment delivered on December 22, 1978, in Civil Miscellaneous Writ No. 9174 of 1978- Uttar Pradesh Madhyamik Shikshak Sangh and Others v. State of Uttar Pradesh and Others(1) on the ground that its provisions were violative of Articles 14 and 16(1) of the Constitution of India; the subsidiary questions being whether the termination of the services of the Appellants and Petitioners as secondary school teachers and intermediate college lecturers following upon the said Allahabad High Court judgment is valid and if not, the reliefs to which they are entitled.
We will first set out the circumstances which led to the promulgation of the above two Ordinances and then narrate the events subsequent thereto.
The educational institutions in the State of Uttar Pradesh teaching upto the high school and intermediate classes fall into three categories, namely, (1) institutions managed and conducted by the Central Government;
(2) institutions managed and conducted by the State Government and local bodies ; and (3) institutions managed and conducted by private management.
The service conditions of the teachers in these three categories of institutions are governed by different statutes. We are concerned in these Appeals and Petitions with only the teachers falling in the third category mentioned above. These institutions are governed by the Intermediate Education Act, 1921 (U.P. Act 227 No. II of 1921). Clause (b) of section 2 of the Intermediate Education Act defines an 'institution' as meaning "a recognised Intermediate College, Higher Secondary School or High School, and includes, where the context so requires, a part of an institution". Section 3 provides for the constitution of a Board, called the Board of High School and Intermediate Education. Section 7 prescribes the powers of the Board which inter alia include the power to prescribe the courses of instruction and text-books, to conduct examinations at the end of High School and Intermediate courses and to recognize institutions for the purposes of such examinations. Under section 7-A, an order of the Board giving recognition to an institution for the first time or in any new subject or Board group or for a higher class is not to have effect until it is approved by the State Government. Section 15 confers upon the Board the power to make Regulations inter alia providing for the conditions of recognitions of institutions. Regulations made by the Board under section 15 are required to be made with the previous sanction of the State Government and to be published in the Uttar Pradesh Official Gazette.
All the institutions falling in the third category mentioned above and with which we are concerned in these Appeals and Petitions are recognized under the Intermediate Education Act. Section 16-A of the Intermediate Education Act requires a Scheme of Administration to be framed for every recognized institution. The Scheme of Administration of every institution is to be subject to the approval of the Director of Education, Uttar Pradesh. A Scheme of Administration is amongst other matters to provide for the constitution of a Committee of Management vested with authority to manage and conduct the affairs of the institution. Under sub-section (6) of section 16-A, every recognized institution is to be managed in accordance with its Scheme of Administration.
Section 16-E of the Intermediate Education Act prescribes the procedure for selection of teachers and heads of institutions. Under sub-section (1) of 16-E, the head of institution and teachers of an institution are to be appointed by the Committee of Management in the manner provided in the said section. Under sub-section (2), every post of head of institution or teacher of an institution is except to the extent prescribed by the Regulations for being filled by promotion, to be filled by direct recruitment after intimation 228 of the vacancy to the Inspector which term is defined by clause (bb) of section 2 as meaning "the District Inspector of Schools, and in relation to an institution for girls, the Regional Inspectress of Girls' Schools, as the case may be, and in each case includes an officer authorised by the State Government to perform all or any of the functions of the Inspector" under the Intermediate Education Act. After intimation of the vacancy to the Inspector, advertisement of the vacancy, containing such particulars, as may be prescribed by the Regulations, is to be published in at least two newspapers having adequate circulation in the State. Sub-section (3) prohibits any person from being appointed as head of institution or teacher in an institution unless he possesses the minimum qualifications prescribed by the Regulations. Under the proviso to that sub-section, a person who does not possess such qualifications may be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments. Under sub-section (4), applications in pursuance of the advertisements published as aforesaid are to be made to the Inspector, Sub-sections (5) to (10) of the said section 16-E provide as follows:
"(5)(i) After the receipt of applications under sub-section (4), the Inspector shall cause to be awarded, in respect of each such applications, quality- point marks in accordance with the procedure and principles prescribed and shall thereafter, forward the applications to the Committee of management.
(ii) The applications shall be dealt with the candidates shall be called for interview, and the meeting of the Selection Committee shall be held, in accordance with the Regulations.
(6) The Selection Committee shall prepare a list containing in order of preference the names, as far as pre-practicable, of three candidates for each post found by it to be suitable for appointment and shall communicate its recommendations together with such list to the Committee of Management.
(7) Subject to the provisions of sub-section (8), the Committee of Management shall, on receipt of the 229 recommendations of the Selection Committee under sub- section (6), first offer appointment to the candidate given the first preference by the Selection Committee, and on his failure to join the post, to the candidate next to him in the list prepared by the Selection Committee under this section, and on the failure of such candidate also, to the last candidate specified in such list.
(8) The Committee of Management shall, where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagreement to the Regional Deputy Director of Education in the case of appointment to the post of Head of Institution and to the Inspector in the case of appointment to the post of teacher of an institution, and his decision shall be final.
(9) Where no candidate approved by the Selection Committee for appointment is available, a fresh selection shall be held in the manner laid down in this section.
(10) Where the State Government, in case of the appointment of Head of Institution, and the Director in the case of the appointment of teacher of an institution, is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be, the Director may, after affording on opportunity of being heard to such person cancel such appointment and pass such consequential order as may be necessary." Section 16-F provides for the constitution and composition of two Selection Committees, one for the appointment of the head of an institution and the other for the appointment of a teacher in an institution.
The only other section which needs be referred to is section 16-G. Section 16-G provides for the conditions of service of heads of institutions, teachers and other employees. Under sub-section (1), every person employed in a recognized institution is to be gover- 230 ned Regulations. Any by such conditions of service as may be prescribed by the regulations. Any agreement between the management and such employee in so far as it is inconsistent with the provisions of the Intermediate Education Act or the Regulations is to be void. Under sub-section (2), without prejudice to the generality of the powers conferred by sub- section (1), the Regulations may, inter alia, provide for the period of probation, the conditions of confirmation, the scales of pay and payment of salary. Under sub-section (3), no principal, headmaster or teacher can be discharged or removed or dismissed from service or reduced in rank or subjected to diminution in emoluments or served with a notice of termination of service except with the prior approval in writing of the Inspector. The Inspector has the power either to approve or disapprove or reduce for enhance the punishment or approve or disapprove of the notice of termination of service proposed by the management. A right of appeal to the Regional Deputy Director, Education, is provided to any party aggrieved by an order of the Inspector.
In 1977 there were about 80,000 secondary teachers of recognized institutions and institutions managed by local bodies. Out of them about 60,000 teachers were members of a registered society, namely, the Uttar Pradesh Madhyamik Shikshak Sangh (hereinafter referred to as "the Sangh"), the First Petitioner in the said Civil Miscellaneous Writ No. 9174 of 1978 in the Allahabad High Court and one of the Respondents in the Appeals and Petitions before us. On August 9, 1977, the Sangh submitted a charter of twenty- seven demands to the State Government. The Government refused to accept any of the said demands. We are not concerned in these Appeals and Petitions with the question whether these demands or any of them were reasonable or not, nor with the question whether the refusal of the Government to accept the said demands or any of them was justified or not. As the Government did not accept the said demands, the Sangh gave and a call for an indefinite strike commencing from December 2, 1977, in response to the said call about 90 per cent of the teachers in recognized institutions went on an definite strike from December 2, 1977.
Under the Uttar Pradesh Essential Services Maintenance Act, 1966 (U.P. Act No. XXX of 1966), service in certain educational institutions is an essential service. Sub-clause (ii) of clause (a) of 231 section 2 of that Act, as it stood at the relevant time, defined "essential service" as meaning inter alia- "any service under an educational institution recognised by the Director of Education, Uttar Pradesh, or by the Board of High School and Intermediate Education, Uttar Pradesh, or service under a University incorporated by or under an Uttar Pradesh Act.
Sub-section (1) of section 3 of that Act confers upon the State Government the power, by general or special order, to prohibit strikes in any essential service specified in the order if the State Government is satisfied that in the public interest it is necessary or expedient to do so. Under sub-section (2) of section 3, such order is to be published in such manner as the State-Government considers best calculated to bring the order to the notice of the persons affected by it. Under sub-section (4) of section 3, during the period of the operation of such an order any strike by persons employed in any essential service to which the order relates is illegal, whether such strike is declared or commenced before or after the commencement of the order.
Under section 4 of that Act, any person who commences a strike which is illegal under that Act or goes or remains on or otherwise takes part in any such strike becomes liable to imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both and, under section 7, any police officer may arrest without warrant any person who is reasonably suspected of having committed any offence punishable under that Act. By a notification dated December 24, 1977, the State Government made and published an order under section 3(1) of that Act prohibiting strikes in service under educational institution. Further, on December 31, 1977, the Governor of Uttar Pradesh promulgated the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees Amendment) Ordinance, 1977 (U.P. Ordinance No. 25 of 1977). The said Ordinance amended section 4 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (U.P. Act No. 24 of 1971). The effect of the said amendment was that the Director of Education, Uttar Pradesh, could, by general or special order, direct any teacher who went or remained on or otherwise took 232 part in any strike which had been prohibited by an order under section 3 of the U.P. Essential Services Maintenance Act to resume duty by the day or hour specified in the order and upon the failure of the teacher to resume duty in response thereto his contract of employment with the management became void with effect from the day or hour specified in the direction contained in such order and the concerned teacher was not to be entitled to any notice before such termination of his services, nor was any disciplinary inquiry required before taking such action, notwithstanding anything to the contrary contained in the Intermediate Education Act or the Regulations made there under or the conditions of service of such teacher.
Further, the State Government was not to be liable for payment of salary to any such teacher beyond the day or hour specified in such direction. It was also provided that "The management or failing it the Inspector may notwithstanding anything to the contrary contained in the Intermediate Eduction Act, 1921, or the Regulations for the time being in force with respect to the mode of selection. Appointment or approval of appointment, be competent to appoint on temporary basis any person possessing the requisite qualifications for discharging the duties of the post of any such teacher". By a notification issued on the same day the Director of Education in pursuance of section 4 of the U.P.
Act No. 24 of 1971 as amended by the said Ordinance directed the teachers on strike or otherwise taking part in the strike prohibed under section 3 of U.P. Essential Services Maintenance Act to resume duty by 11 a.m. on January 5.
One of the striking teachers thereupon filed a writ petition in the Allahabad High Court challenging the validity of the said U.P. Ordinance No. 25 of 1977 and said notification issued under the amended section 4 of the U.P.
Act No. 24 of 1971. The High Court extended the joining time for the striking teachers until January 9, 1978. In spite of the order of the High Court, the teachers who had gone on strike or at least a large number of them, namely, 2257 teachers, did not resume duty. Accordingly their contracts of employment became void and in order to fill the posts, 2257 persons, including the Appellants and Petitioners before us, possessing the requisite qualifications for discharging the duties of the posts of such that teachers were appointed on temporary basis between January 9, 1978.
and January 19, 1978.
233 Thereafter a settlement took place between the striking teachers and the Government and the services of the said 2257 teachers were terminated on or about January 20, 1978, after giving them one month's salary in lieu of notice. On February 25, 1978, in exercise of the power conferred by sub-clause (b) of clause (2) of Article 213 of the Constitution of India, the Governor of Uttar Pradesh with drew the said U.P. Ordinance No. 25 of 1977.
On June 24, 1978, the Governor of Uttar Pradesh promulgated the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance No. 10 of 1978) (hereinafter for the sake of brevity referred to as "U.P. Ordinance No. 10 of 1978"). The long title of U.P. Ordinance No. 10 of 1978 stated that it was "An Ordinance to provide for the absorption of certain teachers in the institutions recognised under the Intermediate Education Act, 1921". Whenever one of the provisions of U.P. Ordinance No. 10 of 1978 refers to another provision thereof, it uses the word "section" or "sub-section" and not "clause" or "sub-clause" as one would normally expect to find, and the same is the case with its successor Ordinance, U.P. Ordinance No. 22 of 1978. Whether this phraseology is correct or not is a matter which we will consider later after we have seen what the provisions of U.P. Ordinance No. 10 of 1978 were, adopting for this purpose the same phraseology as used in that Ordinance.
Section 2 of U.P. Ordinance No. 10 of 1978 gave an overriding effect to the provisions of that Ordinance notwithstanding anything contained in the Intermediate Education Act or any other law for the time being in force.
Section 4 of U.P. Ordinance No. 10 of 1978 was headed "Absorption of Reserve Pool Teachers". Sub-section (1) of section 4 provided that the Inspector (that is, the District Inspector of Schools, and in relation to a girls' institution, the District Inspectress of Girls' Schools or the Regional Inspectress of Girls' Schools, as the case may be, including any other officer authorized by the Government to perform all or any of the functions of the Inspector) should maintain in the prescribed manner a register of "reserve pool teachers" consisting of persons who were appointed as teachers in any recognized institution situated in the district either by the management or by the Inspector under sub-section (4) of section 4 of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, while the said U.P.
234 Ordinance No.25 of 1977 was in force and who had actually joined their duties in pursuance of the said provision between January 9, 1978, and January 19, 1978. Sub-section (2) of section 4 of U.P. Ordinance No.10 of 1978 provided as follows:
"(2) Where any substantive vacancy in the post of a teacher in an institution recognised by the Board is to be filled by direct recruitment, such post shall at the instance of the Inspector be offered by the Management to a teacher whose name is entered in the register referred to in sub-section (1)." Other sub-sections of section 4 provided that if any teacher who was offered appointment failed to join the post within the time allowed therefore, his name should be removed from the register of reserve pool teachers and the appointment should be offered to another reserve pool teacher of the same district and that if such other teacher also failed to join the same process should be repeated until the list of reserve pool teachers of that district was exhausted and thereupon the appointment in the institution was to be made in accordance with the relevant provisions of the Intermediate Education Act. The Explanation to section 4 provided as follows:
"Explanation:- For the removal of doubts, it is hereby declared that no teacher shall, by virtue of the provisions of this section be entitled to claim appointment to any post which he had joined in accordance with sub-section (1) or to any post carrying the same or a higher grade." Section 5 provided that where the vacancies available for teacher in any subject of study were less than the number of reserve pool teachers available for appointment in any district or where it was otherwise necessary or expedient so to do, the Director (that is, the Director of Education, Uttar Pradesh, including any other officer authorized by him in this behalf) could direct that the name of any such teacher be excluded from the register maintained in one district and be included in the register maintained in another district and in such a case the provisions of section 4 were 235 mustatis mutandis to apply to such a teacher except that the requirement of service as teacher in such district was not to be necessary.
We will now consider whether the use of the word "sub-section" in the extract from U.P. Ordinance No. 10 of 1978 reproduced above and our referring to the different provisions of that Ordinance as sections and to the numbered sub-divisions of a provision of that Ordinance as sub- sections can be said to be correct. At the first blush it would appear that such phraseology is not correct because the usual legislative drafting practice is that the words "section" and "sub-section" should be used while referring to a provision and the numbered sub-divisions of a provision of an Act and the words "clause" and "sub-clause" be used while referring to a provision and the numbered sub- divisions of a provision of an Ordinance. A closer examination, however, reveals that this does not necessarily hold good so far as Ordinances promulgated by the President and the Governor of Uttar Pradesh are concerned; and the same would be the case with Ordinances promulgated by the Governor of any other State where the relevant provisions of the State General Clauses Act are similar to those of General the Clauses Act, 1897 (Act X of 1897) or of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act 1 of 1904), referred to hereinafter.
In legislative drafting parlance the distinct and numbered divisions of an Act are referred to as sections and the sub-divisions of a section which are numbered in round brackets are referred to as sub-sections. Each section as also a part of a section of an Act is considered as a separate enactment. Ridley, J. observed in The Wakefield and District Light Railway Company v. The Wakefield Corporation, "the word 'enactment' does not mean the same thing as 'Act'.
Act means the whole Act, whereas a section or part of a section may be an enactment". In England, prior to 1850 it was the usual practice to preface each portion of an Act- what we would now call a section-with the words "And be it enacted" or "And be it further enacted". By section 2 of Lord Brougham's Act of 1850, namely, Interpretation of Acts, 1850 (13 and 14 Vict. c.2), this requirement was done away with and it was provided that "all Acts shall be divided into sections if there 236 be more enactments than one, which sections shall be deemed to be substantive enactments without any introductory words". The Act of 1850 was repealed by the interpretation Act, 1889 (52 and 53 Vict. c.63), and the requirement of section 2 of the 1850 Act as to division of an Act into sections was done away with but the rest of that section was re-enacted in section 8 of the 1889 Act by providing that "Every section of an Act shall have effect as a substantive enactment without introductory words". This particular repeal was not of any significance because the portion repealed constituted a mere direction to draftsmen and parliamentary officials to divide an Act into sections (see Craies on Statute Law, 7th ed.,p. 217). Though the Act of 1889 has now been repealed by the Interpretation Act, 1978 (1978 Eliz. 2 c.30), section 1 of that Act re-enacts section 8 of the 1889 Act.
The Interpretation Act in force in India, so far as all Central Acts and Regulations are concerned, is the General Clauses Act, 1897 (At X of 1897). Clause (7) of section 3 of the General Clauses Act defines the term "Central Act" and clause (50) of that section defines the term "Regulation".
Section 3 of the General Clauses Act is the definition clause. The definitions of various terms given therein apply to those terms not only when used in the General Clauses Act but also when used in all Central Acts and Regulations made after the commencement of the General Clauses Act, unless there is anything repugnant in the subject or context. The relevant clauses of section 3 with which we are concerned are clauses (54) and (61) which provide as follows:
"(54) "section" shall mean a section of the Act or Regulation in which the word occurs.
"(61) "sub-section" shall mean a sub-section of the section in which the word occurs".
The object of these clause is to shorten the language of Acts and Regulations otherwise whenever a section of an Act or Regulation refers to another section of that Act or Regulation, the title of that Act or Regulation would have to be stated after such reference in order to make it clear that it was another section on the same Act or Regulation which was being referred to.
237 There is a difference between an Act and an Ordinance.
An Act is a legislation which after having been passed by Parliament or other competent legislative body has received the assent of the constitutional had while an Ordinance is a legislation made by the constitutional head himself, generally without the consent of Parliament or other concerned legislative body. In England, there is no question of such an Ordinance being promulgated because the Monarch has now no legislative power. Coke in "The Institutes of the Laws of England", Part IV at page 24, however, made a distinction between an Act of Parliament and an Ordinance in Parliament. He said:
"There is no act of parliament but must have consent of the lords, the commons, and the royal assent of the king, and as it appeareth by records and our books whatsoever passeth in parliament by this three- fold consent, hath the force of an act of parliament.
The difference between an act of parliament, and an ordinance in parliament, is, for that the ordinance wanteth the three-fold consent, and is ordained by one or two of them." (Orthography modernized) Thus, the enactments which were passed during the period between the outbreak of the Civil War in England in 1642 and the Restoration (of King Charles II) in 1660 were all passed without the consent of the Crown and are known as Ordinances.
In India, all laws made prior to the enactment of statute 3 and 4 Wm IV c. 85 of 1833 were called Regulations.
The Statute of 1833 superseded the existing powers of the Councils of Madras and Bombay to make laws and merely authorized them to submit to the Governer-General-in-Council drafts or projects of any law which they might think expedient and the Governor-General-in-Council was, after consideration, to communicate his decision thereon to the local Government which had proposed them. All laws made in pursuance of the Statute of 1833 were known as "Acts". (see State of Maharashtra v. Kusum Charudutt Bharma Upadhye. The term "Regulation" has now a different meaning under clause (50) of the General Clauses Act.
238 Under the Constitution of India, Ordinances are promulgated by the President in exercise of his legislative power under Article 123 when both Houses of Parliament are not in session or by the Governor of a State in exercise of his legislative power under Article 213 when the Legislative Assembly of the State is not in session or where there is a Legislative Council in a state, when both Houses of the Legislature are not in session. Prior to the Constitution the Governor-General had under the Indian Councils Act, 1861 (14 & 15 Vict. c. 67), the Government of India Act, 1915 (5 & 6 Geo. V c. 61) and the Government of India Act, 1935 (26 Geo. V & 1 Edw VIII c. 2), the power to promulgate Ordinances. The Governor of a Province also possessed similar power under section 88 of the Government of India Act, 1935. Section 30 of the General Clauses Act provides that the expression "Central Act" wherever it occurs in that Act, except in section 5 (which deals with coming into operation of enactments), and the word 'Act' in certain clauses of section 3, including clause(54), and in section 25 shall be deemed to include an Ordinance made and promulgated by the Governor-General under section 23 of the Indian Councils Act, 1861, or under section 72 of the Government of India Act, 1915, or under section 42 of the Government of India Act, 1935 and an Ordinance promulgated by the President under Article 113 of the Constitution.
There would have been no purpose in section 30 of the General Clauses Act providing that the word "Act" in clause (54) of section 3 of the General Clauses Act shall be deemed to include an Ordinance unless one of the provisions of an Ordinance can refer to another provision of the same Ordinance as a "section", and if one of the provisions of an Ordinance can refer to another provision of it as a "section", it would naturally follow that a part of such provision can be referred to as "sub-section". Thus, section 30 of the General Clauses Act read with clause (54) of section 3 thereof would show that it would not be wrong phraseology, though it may sound inelegant, to refer to a provision of an Ordinance as "section" and to a sub-division of such provision, numbered in round brackets, as "sub- section".
Almost all States, including Uttar Pradesh, have their own General Clauses Acts which apply for the purposes of interpretation of their own Acts. The Act in force in the State of Uttar Pradesh 239 is the Uttar Pradesh General Clauses Act 1904 (U.P. Act 1 of 1904) Section 4 of that Act is the definition in clause and applies to all Uttar Pradesh Act unless there is anything repugnant in the subject or context. The expression "Uttar Pradesh Act" is defined in clause (46) of section 4. Clauses (40) and (43) of section 4 define the terms "section" and "sub-section" in language identical with that used in clauses (54) and (61) of the General Clauses Act, 1897.
Section 30 of the U.P. General Clauses Act, inter alia, provides that the provisions of that Act shall apply in relation to an Ordinance promulgated by the Governor under section 88 of the Government of India Act, 1935, as they apply in relation to Uttar Pradesh Acts made by the Provincial Legislature and in relation to an Ordinance promulgated by the Governor under Article 213 of the Constitution as they apply in relation to Uttar Pradesh Acts made by the State Legislature.
What has been said above with respect to section 30 of the General Clauses Act, 1897, reed with clause (54) of section 3 thereof would apply with equal force to section 30 of the U.P, General Clauses Act 1904, read with clauses (40) and (43) of section 4 thereof. The use of the word "sub- section" in the extract from U.P. Ordinance No. 10 of 1978 cannot, therefore, be said to be incorrect.
To proceed with the narration of facts, both before as well as after the promulgation of U.P. Ordinance No. 10 of 1978 several vacancies occurred in the post of teachers in recognized institutions which were to be filled by direct recruitment and accordingly advertisements were given advertising these posts. Consequent upon these advertisements several applications were received. The applicants were called for interview by the selection Committee. Mean while, the Deputy Secretary, Education, Government of U.P., issued a D. O. letter dated July 1, 1978, to the Director of Education, and in his turn the Additional Director of Education issued a letter dated July 4, 1978, to all the District Inspectors of schools and the Regional Inspectresses of Girls 'Schools, to make appointments in pursuance of Ordinance No. 10 of 1978.
Pursuant to these directions, the selections of the applicants were postponed and some of the vacancies were filled by appointing, on probation for one year, teachers from the reserve pool as provided by Ordinance No. 10 of 1978. Thereupon some of the applicants who were not in the 240 reserve pool filed writ petitions in the Allahabad High Court challenging the validity of Ordinance No. 10 of 1978 and the said two letters dated July 1, 1978, and July 4, 1978. By interim orders passed in the said writ petitions the High Court stayed the further operation of U.P.
Ordinance No, 10 of 1978.
The Bill to repeal and re-cenact U.P. Ordinance No. 10 of 1978 was passed by the U.P. Legislative Assembly but though the Bill was passed before the U.P. Legislative Council it could not be put up for discussion and thus could not be made into an Act. Under Article 213 (2)(a) of the Constitution, U.P. Ordinance No. 10 of 1978 would have, therefore, ceased to operate on or about October 17, 1978.
When the said writ petitions reached hearing they were dismissed on the ground that they had become infructuous as U.P. Ordinance No. 10 of 1978 had lapsed.
Meanwhile, on October 7, 1978, the Governor of Uttar Pradesh promulgated the Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) (Second) Ordinance, "U.P. 1978 (U.P. Ordinance No. 22 of 1978) (hereinafter referred to as Ordinance No. 22 of 1978"). U.P. Ordinance No. 22 of 1978 repealed U.P. Ordinance No. 10 of 1978 and was given retrospective effect on and from June 24, 1978 (the date of U.P. Ordinance No. 10 of 1978), and it was also provided that notwithstanding the repeal of U.P. Ordinance No. 10 of 1978, anything done or any action taken under that Ordinance should be deemed to have been done or taken under U.P. Ordinance No. 22 of 1978 as if that Ordinance were in force at all material times. The provisions of U.P. Ordinance No.22 of 1978 were in Pari materia with those of U.P. Ordinance No. 10 of 1978. The only additional provision in U.P. Ordinance No. 22 of 1978 were that this Ordinance made it lawful for the State Government to prohibit by notification published in the Official Gazette the selection or appointment of any teacher in a recognized institution until the list of reserve pool teachers of that district was exhausted and it further provided that where the management failed to offer any post to a teacher in the reserve pool in accordance with the provisions of the Ordinance within the time specified by the Inspector, the Inspector could himself issue the letter of appointment to such teacher and the teacher concerned was entitled to get his salary from the data he joined the post in pursuance of such letter of appointment and 241 if he could not join the post due to any act or omission on the part of the management, such teacher could submit his joining report to the Inspector and he would thereupon be entitled to get his salary from the date he submitted the said report.
In pursuance of U.P. Ordinance No. 22 of 1978, directions were issued by the Secretary, Education Department, Government of U.P., by a telex message dated October 18, 1978, and in pursuance thereof by the Additional Director of Education, U.P. by a telex message dated October 19, 1978, to fill the vacancies by making appointments from the reserve pool in accordance with the provisions of U.P. Ordinance No 22 of 1978. Thereafter some more teachers from the reserve pool were appointed to the posts which had fallen vacant and which were to be filled by direct recruitment. Thereupon The Sangh along with some of the applicants for the vacant posts who had filed writ petitions in the High Court challenging the validity of U.P. ordinance No.10 of 1978 filed in the Allahabad High Court the said Civil Miscellaneous Writ No. 9174 of 1978 challenging the validity of U.P. Ordinance No. 22 of 1978 and the said telex. messages. By an interim order made in the said writ petition further operation of U.P. Ordinance No.22 of 1978 was stayed by the High Court. The Allababad High Court by its judgment dated December 22, 1978, referred to above, held that U.P. Ordinance No. 21 of 1978 violated the provisions of Articles 14 and 16(1) of the constitution and accordingly declared the ordinance to be void and quashed the said telex messages. Normally, one would have expected the State to apply to the High Court for a certificate to enable it to file an appeal in this Court or to apply to this Court for special leave to appeal, particularly in view of the fact that a State ordinance had been struck down by the High Court as being unconstitutional and as a result of that judgment 1,157 tea
