03 December 1996
Supreme Court


Case number: C.A. No.-007943-007943 / 1996
Diary number: 76175 / 1996






DATE OF JUDGMENT:       03/12/1996




JUDGMENT: Present:                Hon’ble Mr. Justice N.P.Singh                Hon’ble Mr. Justice S.B. Majmudar      K.B. Sinha,  Sr. Adv. and S.Kulshreshtha, Adv. with him for the appellant      Shrish Kumar  Misra, Ms. Niti Dikshit and Ms. Meenakshi Arora, Advs. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered :      S.B. Majmudar, J.      In this  appeal by  special leave  under Article 136 of the Constitution  of India  the  appellant  has  brought  in challenge the  decision rendered  by a Division Bench of the High Court  of Judicature  at Allabhabad,  Lucknow Bench  in Special Appeal  No. 300  of 1992  moved by  respondent  no.1 against a  common judgment  and order  of the learned Single Judge in  three  writ  petitions  filed  by  the  contesting parties to  these proceedings,  namely, the appellant on the one hand  and  respondent  no.1  on  the  other.  The  short question involved  in these proceedings is as to whether the appellant Munishwar  Dutt Pandey  or respondent no.1 Ramjeet Tiwari is  entitled to  continue as  Principal of  Brijendra Mani Inter  College, Pratapgrah  functioning in the State of Uttar Pradesh.  For the sake of convenience we will refer to the appellant as original writ petitioner and the respondent no.1 as the main contesting respondent.      A few  relevant  facts  leading  to  these  prooeedings deserve to  be  noted  at  the  outset.  The  original  wirt petitioner and the contesting respondent   were  appointed as  teachers in  the aforesaid  Brijendra   Mani  Inter   College,  Kohandaur  in Pratapgarh District  of State of Uttar Pradesh. Both of them were working as lecturers in their respective Departments of Sanskrit and Geography. He retired from service on 30th June 1988 on  attaining the  age of  superannuation.  Immediately before his  retirement, said  Shri Misra  addressed a letter jointly to  the chairman/President of the Managing Committee of the  College and  its Secretary  enquiring from the as to whom he  should hand  over charge on his retirement. In that letter he  mentioned that the writ petitioner was the senior



most lecturer  of the  College having been appointed on 12th August 1989  and the  second senior  most  lecturer  in  the College was  the contesting  respondent. On  this letter  of retiring Principal,  the Secretary of the Managing Committee made  an   endorsement  to  the  President/Chairman  of  the Committee stating that Shri Misra was superannuating on 30th June   1988 and  the writ  petitioner was  the  senior  most lecturer of  the College  and therefore, he recommended that the charge  of the  post of  Principal be given to him. This recommendation was accepted by the President/Chairman of the Committee on 1st July 1988. Pursuant to this order, a Letter of Appointment  effective from  1st July  1988 was issued to the    writ    petitioner    under    the    signature    of Chairman/President of  the Managing Committee appointing the writ petitioner  as ad  hoc Principal  of  the  College,  It appears that on that day the said order was not backed up by an Resolution  of the  Managing Committee.  However  it  was mentioned in  this  Letter  of  Appointment  that  the  writ petitioner  was   being  approved   by  the  U.P.  Secondary Education Services  Selection Board thereinafter referred to as ’the Board’), or till any other decision was taken by the management. Pursuant  to this  Appointment Letter  the  writ petitioner started  working as Principal of the said College from 1st  July 1988  the Managing  Committee of  the College passed a  Resolution accepting the ad hoc appointment of the writ  petitioner   on  the   post  of  Principal.  The  said appointment wad  in turn  approved by the District Inspector of Schools  vide his  letter dated 19th May 1989 for payment of salary  under the  provisions of  U.P. High  Schools  and intermediate Colleges  (Payment of  Salaries to Teachers and other Employees)  Act, 1971.  In the said Letter of Approval it was mentioned that the approval was given for appointment of  the  writ  petitioner  under  Section  18  of  the  U.P. Secondary  Education  Services  Selection  Board  Act,  1982 (hereinafter referred  to as  ’the Act’) and the appointment was  purely  temporary  and  would  last  till  a  candidate selected by the Board was available.      It is  not in  dispute between  the contesting  parties that  the  writ  petitioner  is  senior  to  the  contesting respondent. The Writ petitioner was appointed as lecturer in Sanskrit  on   12th  August   1989  whereas  the  contesting respondent was  appointed as a lecturer in Geography on 14th August 1989.  It was  also an  admitted position between the contesting parties  before the  High Court,  both before the Division Bench,  that the management of the College has sent in July  1988 a  requisition to the Board for selection of a regular Principal  of the  College. As  prescribed under the Rules framed under the Act the management forwarded names of writ petitioner and contesting respondent to the Board which called both of them and other candidates for interview,. The Board after  interviews notified on 3rd May 1991 that it had selected the  contesting respondent  at serial  no.1 and one another person  named Shiv  Sagar Shukla  at serial  no.2 in order of  merit for  the post  of Principal  of the college. However the  writ petitioner  was not  selected.  The  Board communicated the  said notification  to the  management vide its letter  dated 6th  May 1991.  In pursuance  of the  said selection  the   Committee  of   Management  appointed   the contesting respondent  to  the  post  of  Principal  of  the College vide  its Resolution  dated 13th May 1991 and Letter of Appointment  of the same date was issued in favour of the contesting respondent  who took  over charge  from the  writ petitioner  on  14th  May  1991.  Now  in  the  meantime  it transpired that  Section 33-A  of the Act got amended by the Uttar Pradesh  Secondary Education  Services Commission  and



Selection  Boards (Amendment) Act, 1991. As per the said Act Section 2  of the  Amending Act was deemed to have come into force from  6th April  1991 ad the remaining provisions were to come  into force  at once.  Section 89-A  of the  Act was amended by  insertion of sub-sections (1-A), (1-B) and (1-C) in Section  33-A of  the Act.  We shall  refer to  the  said provisions of  the Amending  Act at  an appropriate stage in letter part  of this  judgment. Placing  reliance  on  these amended provisions of Section 33-A the writ petitioner moved the High  Court of Judicature at Allahabad, Lucknow Bench by way of  writ petition contending that his ad hoc appointment as Principal  with effect  from  1st  July  1989  has  stood statutorily regularised  and therefore,  he was  entitled to continue  as   regularised  Principal  of  the  College  and consequently the contesting respondent could not continue as Principal of  the said  College. He,  of course, by separate writ petition challenged the process of selection undertaken by the  Board but we are not concerned respondent contending that he  was entitled  to continue  as a  regularly selected Principal of  the College. As all these three writ petitions involved common  questions they were heard together and were disposed of by a common judgment of the learned Single Judge of the  High Court.  The learned  Single Judge took the view that in  the light  of the  Amending Act  of 1991  which had brought on the Statute Book Section 33-A(i) (1-A) of the Act appointment  of   writ  petitioner   was  required   to   be regularised as  Principal of  the College.  Consequently the contesting respondent  could not  continue  to  function  as Principal of  the College.  In the  light of  the  aforesaid finding  of   his  the  writ  petition  filed  by  the  writ petitioner was  allowed. A  writ of  certiorari  was  issued quashing the  notification dated 3rd May 1991 appointing the contesting respondent as Principal of the College. A writ in the  nature  of  the  mandamus  was  issued  commanding  the management  and  other  authorities  which  were  joined  as parties to  the writ  petitions not  to give  effect to  the notification dated  3rd May 1991 and directing them to allow the writ  petitioner to continue on the post of Principal of the College.  The writ  petition  filed  by  the  contesting respondent was  dismissed. As  stated  earlier  it  is  this common order  of the  learned Single Judge of the high Court which was  brought in challenge by the contesting respondent by filing  Special Appeal No.300 of 1992 before the Division Bench of  the High Court. The Division Bench by its impugned order took  the  view  that  the  writ  petitioner  was  not entitled to  get regularisation of his ad hoc appointment as Principal and  neither amended  provision of Section 33-A(1) (1-A) nor Section 33-A(1)(1-C) was applicable to the case of the writ  petitioner. Consequently  there was no question of regularising his  services as  Principal and on the contrary as in  the selection  process the  contesting respondent was selected and  the writ  petitioner was  not selected, it was the contesting  respondent who  was entitled  to continue as Principal of  the  College  and  not  the  writ  petitioner. Consequently the  Appeal was allowed and the judgment of the learned Single Judge was set aside. However it was clarified that as  the writ  petitioner Munishwar Dutt Pandey had held the post  of Principal  in spells  under different orders of the Court  if he  had been  paid the  salary of  the post of Principal he  shall not  be compelled to refund the same. If on the  other   hand the salary was not paid he shall not be entitled   to get it. The aforesaid judgment of the Division Bench is  brought on  the anvil  of scrutiny  in the present proceedings by the writ petitioner.      Rival Contentions



    Learned counsel  for the  writ petitioner  contended in support of  the appeal  that the  writ petitioner,  who  was promoted as  Principal on  ad hoc basis with effect from 1st July 1988,  was entitled  to be regularised in the substance vacancy of the Principal of the College by virtue of Section 33-A(1) (1-A)  of the Act. He submitted that it is true that reliance was  also placed  by the writ petitioner before the High Court  on Section  33-A(1) (1-C) of the Act but he does not claim  regularisation under said provision. According to him though  earlier the  appellant was  promoted as  ad  hoc Principal under  the orders  of the President of the College with effect from 1st July 1989 the said appointment was duly backed up  and ratified  by  subsequent  Resolution  of  the Managing Committees  of the College on 20th October 1989 and that the  High Court was in error in treating the appellants ad hoc promotion in the post of the Principal of the College only from  29th October  1988. In  his submission  the  said conclusion reached  by Division  Bench of the High Court was contrary to  the express  terms of the said Resolution which clearly stated  that the  Managing Committee had unanimously accepted the    writ  petitioner’s  ad  hoc  appointment  as ’Acharya’ and  this acceptance  obviously  referred  to  the initial ad hoc appointment w.e.f. 1st July 1989. It was next contended by  learned counsel  for the writ petitioner  that the Division  Bench of  the High  Court was not justified in taking the  view that  the writ  petitioner’s appointment by way of  promotion  to  the  post  of    Principal  Secondary Education  Services  Commission  (Removal  of  Difficulties) Order, 1981 (hereinafter referred to as ’the Order’) and not by paragraph  2 thereof.  According to  the learned  counsel paragraph 4  was complementary to paragraph 2. Both operated in the  same field  and had  to be  read conjointly.  It was accordingly submitted  that the  case of  the appellant  for regularisation  was   squarely  covered   by   the   amended provisions of  Section 33-A(1)(1-A) of the Act and that once that  conclusion  was  reached  the  writ  petitioner  stood regularised as  Principal by the deeming fiction of the said provision w.e.f. 6th April 1991. Consequently the subsequent interviews for  the said post as held by the Selection Board were in exercise in futility as they related to a post which was no  longer vacant from 6th April 1991 onwards. Hence the result of  the selection  proceedings by  the  Board  became superfluous and of o legal effect. Accordingly the selection of contesting  respondent pursuant  to such  an  infructuous proposes of  selection could  not avail  him to  continue as Principal of  the College. In his submission the decision to which the  learned Single  Judge reached  was well borne out from the  scheme of the Act and was wrongly set aside by the Division Bench by the impugned judgment.      While supporting  these contentions  on behalf  of  the appellant-writ petitioner,  learned counsel  for  respondent no.4, the  Committee of Management of the College, contended that the appellant of writ petitioner by way of promotion on ad hoc  basis was  not as  per Section  18 of  the  Act  for applicability  of  the  said  Section  two  conditions  were required to be fulfilled :      (i)  that  the  appointment  should      have been made after the vacancy of      the Principal  was notified  by the      Management   to    the    Selection      Commission in  accordance with  the      provisions of the Act: and      (ii) the  period of one year should      have a  elapsed from  the  date  of      such notification of vacancy during



    which the  Commission had failed to      recommend the  name of any suitable      candidate for  being appointed as a      any suitable  candidate  for  being      appointed as  teacher specified  in      the Schedule  or  alternatively  at      least a period of two months should      have elapsed  during which the post      of   such   teacher   should   have      actually remained  vacant and  only      thereafter  the   management  might      have  appointed  by  promotion  the      concerned teacher on ad hoc basis.      According to  her by the time the Management passed the Resolution on  29th October  1988 the  post of Principal has not remained actually vacant. On the contrary on the wording of the  said Resolution  it could be said that the said post of principal  was already  occupied by  the writ  petitioner with effect  from 1st  July 1988  of course  as  an  ad  hoc promotee to  the said  post. It was, therefore, submitted by learned counsel  for the  Management that the appointment by way of  promotion of the writ petitioner on ad hoc basis was made by  the Management not as per Section 18 of the Act but as per paragraph 2 of the Order.      On the  other hand  learned counsel  for the contesting respondent in the first instance contended that the Order as subsequently amended the Second Order, did not cover vacancy which might  arise after  the coming  into force of the said Orders as  these Orders were confined to only those existing vacancies which  had remained unfilled till the commencement of these  Orders. In  his submission the said conclusion can flow from  the express  wordings of  both  these  Orders  as construed in  the light of the respective preambles to these orders. He  submitted that  on a  harmonious construction of the relevant  paragraphs of  these  Orders  along  with  the preambles which  indicated that  need for  enactment of such Orders by the subordinate legislative authority a conclusion can be reached that these Orders were meant to cater to only those vacancies which had seen the light of the day upto the time these  Orders for  removal of difficulties got enacted. That  these  Orders  sought  to  remove  the  then  existing difficulties for the managements which were not able to fill up the then vacancies and the selecting authorities, namely, the Commission  or the  Board on the other hand had not been able to  select the  required candidates  to fill  up  these vacancies. That  as in  the present  case the vacancy of the Principal had  arisen seven  years after the promulgation of these Orders,  the said  vacancy of the Principal was beyond the sweep of both the first and the second Orders. He fairly stated that  this contention was not canvassed either before the learned Single Judge or before the Division Bench of the High Court  but in  his submission as the contention went to he root  of the  matter and raised a pure question of law it deserved to  be considered by us. He alternatively contended that paragraph (2) of the Order was clearly repugnant to the scheme of  the Act  and as  paragraph (2)  was  a  piece  of subordinate  legislation   it  must   yield  to  the  parent provision found  in Section  18 and,  therefore, it  must be held that  the ad hoc promotion given to the writ petitioner was in  substance according  to the provisions of Section 18 and not  de hors  it. It  was next  contended  by  him  that Division  Bench   of  the   High  Court  rightly  held  that Resolution dated  29th October  1988 was  purely prospective and could  not retrospectively  promote the  writ petitioner with effect  from 1st  July 1988. That a conjoint reading of



all the  recital of the Resolution yielded this result. Once that is so it must be held, according to the learned counsel for the  contesting respondent,  that the writ petitioner go no benefit  of Section  33-A(1) (1-C).  He further contended that so  far as the applicability of Section 33-A(1)(1-A) is concerned the  Division Bench  of the High Court had rightly held that  paragraph (2) of the Order did not cover the writ petitioner’s case  as the  writ petitioner  was promoted  as head of  the institution  if at all, as per paragraph (4) of the  Order   and  for   such  appointments   the  scheme  of regularisation as  contemplated  by  Section  33-A(1)  (1-A) could not  be of  any avail  as only ad hoc promotions under paragraph (2)  of the  Order were  envisaged by the sweep of the said  provision. Promotions of heads of the institutions contemplated by  paragraph (4) of the Order were outside the purview of  the said  provision and  consequently  the  writ petitioner could  not get the benefit of the said provision. That once the writ petitioner is out of the beneficial sweep of the  regularisation provisions of Section 33-A(1)(1-A) it must be  held, submitted  learned counsel for the contesting respondent was  dully selected  on merits for the said post, the writ  petitioner was  rightly non-suited by the impugned judgment of the Division Bench of the High Court.      In view of these rival contentions the following points arise for our determination.      (1) Whether  the writ petitioner is      entitled  to  get  the  benefit  of      deemed regularisation of his ad hoc      promotion  as   Principal  of   the      College under  Section 33-A(1)(1-A)      of the  Act. (2)  Whether the  writ      petitioner’s appointment  by way of      promotion was  under Section  18 of      the Act.      (3) Whether  the writ  petitioner’s      appointment by  way of promotion as      ad hoc Principal of the College was      effective from  1st  July  1988  as      contended by the writ petitioner or      from 29th October 1988 as submitted      by   learned    counsel   for   the      contesting respondent.      For the  reasons  which  will  indicate  presently  our answers to  the aforesaid  points for  determination are  as under :      Point No. 1 - In affirmative      Point No. 2 - In the negative      Point No.  3 - The writ petitioner’s appointment by way of ad  hoc promotion  as Principal become effective from 1st July 1988 and  not only from 29th October 1988.      In view  of our  aforesaid answers to theses points for determination the writ petitioner is entitled  to support in the present  proceedings.  We  now  proceed  to  record  our reasons in  support of the aforesaid answers to these points for determination.  However before  we do  so  it  would  be apposite to glance through the relevant statutory provisions governing  the controversy between the parties.      Statutory provisions      The Act  of 1982  was preceded by an ordinance of 1981. The said  ordinance was  captioned Uttar  Pradesh  Secondary Education   Services   Commission   and   Selection   Boards Ordinance, 1981  (U.P. Ordinance  No.8  of  1981)’.  It  was promulgated with  a view  to establish a Secondary Education Selection Boards  for selection  of teachers in institutions recognised under the Intermediate Education Act, 1921. It is



not in  dispute that  the College in question in governed by the provisions of the intermediate Education Act, 1921. This Ordinance was followed by the Act of 1982 being U.P. No.5 of 1982. The  Preamble of  the said  Act provides that it is an Act to establish Secondary Education Services Commission and Selection Boards  or selection  of teachers  in institutions recognised under  intermediate Education  Act, 1921. We will now refer to the relevant provisions of the said Act as were applicable at  the relevant time in 1988 when the vacancy of the Principal  arose in  the College  and for  occupying the same the  rival  claims  of  the  writ  petitioner  and  the contesting respondent  have to be examined. Section 3 of the Act provides  for establishment  of Commission  called Uttar Pradesh  Secondary   Education   Service   Commission.   The Commission was entrusted under Section 9 with the powers and duties to  prepare guidelines  on matters  relating  to  the method of  recruitment and  promotion of  such categories of teachers as  are specified  in the  Schedule and  to perform diverse other  function as laid down into the said Sections. Section 10  of the Act is material for our purpose. It reads as under :      10.  Procedure   of  selection   of      teachers specified  in the Schedule      (1)  For  the  purposes  of  making      appointment of  a teacher specified      in  the  Schedule,  the  management      shall notify  the  vacancy  to  the      Commission  in   such  manner   and      through such  officer or  authority      as may be prescribed.      (2) The  procedure of  selection of      candidates for  appointment to  the      posts of  such  teachers  shall  be      such as may be prescribed. :      Provided that the Commission shall,      with  a   view  to   inviting   the      talented   persons,    give    wide      publicity  in   the  State  to  the      vacancies  notified   under    sub-      section      The said Section will have to be read with Section 2(k) which defines  ’Teacher’ to  mean ’  a person  employed  for imparting instruction  in  an  institution  and  included  a Principal  of   Headmaster.  A  conjoint  reading  of  these provisions will,  therefore, indicate  that once the vacancy of a  Principal arises in a College governed by the said Act the management  has to  notify the  vacancy to the Selection Commission  in  the  manner  provided  by  the  rules  which prescribes the procedure for that purpose. The next relevant Section   is found  in Chapter  IV of  the Act  dealing with ’Appointment of Selected Teachers’. It reads as under :      16. Appointments to be made only on      recommendations of  the  Commission      of the  Board  (1)  Notwithstanding      anything to  the contrary contained      in the  intermediate Education Act.      1921  or   the   Regulations   made      thereunder  but   subject  to   the      provisions   of Sections  18, 21-B,      21-C, 21-D, 33 and 33-A.      (a) every  appointment of a teacher      specified in  the Schedule shall on      or after  July 10, 1981, be made by      the   management    only   on   the      recommendation of the Commission;



    (b) every  appointment of a teacher      (other than  a teacher specified in      the schedule),  shall, on  or after      July  10,  1981,  be  made  by  the      management     only      on     the      recommendation of the Board.      Provided   that   in   respect   of      retrenched      employees,      the      provisions of  Section 18-EE of the      Intermediate Education  Act,  1921,      shall apply  with the  modification      that in  sub-section (2)  of    the      aforesaid section,  for  the  words      ’six months’  the words ’two years’      shall  be   deemed  to   have  been      substituted.      (2) Every  appointment of a teacher      in contravention  of the provisions      of sub-section (1), shall be void."      Then follows Section 18 which represented the main bone of  contention   between  the  contesting  parties.  It  is, therefore, profitable to extract it as under :      "18 Ad hoc Teachers - (1) Where the      management has  notified a  vacancy      to  the  Commission  in  accordance      with the  provisions of the Act and      -      (a) the  Commission has  failed  to      recommend the  name of any suitable      candidate for  being appointed as a      teacher specified  in the  Schedule      within one  year from  the date  of      such notification;  or (b) the post      of  such   teacher   has   actually      remained vacant  for more  than two      months, then,  the  management  may      appoint, by  direct recruitment  or      promotion, a  teacher on  purely ad      hoc basis  form amongst the persons      possessing           qualifications      prescribed under  the  Intermediate      Education   Act,    1921   of   the      regulations made thereunder.      (2) The  provision  of  sub-section      (1)  shall   also  apply   to   the      appointment  of  a  teacher  (other      than a  teacher  specified  in  the      Schedule) on  ad hoc basis with the      substitution  of   the   expression      ’Board’    for    the    expression      "Commission".      (3) Every appointment  of an ad hoc      teacher under  sub-section  (1)  of      sub-section (2) shall cease to have      effect from  the  earliest  to  the      following dates, namely -      (a) when  the candidate recommended      by the  Commission or the Board, as      the case may be joins the post :      (b) when  the period  of one  month      referred to  in sub-section  (4) of      Section 11 expires :      (c) thirtieth day of June following      the   date    of   such    ad   hoc      appointment."



    The next  relevant Section  is  Section  33  which  may profitably be noticed as under :      "33 Power  to remove difficulties -      (1) The  State Government  may, for      the  purposes   of   removing   any      difficulty, by  a  notified  order,      direct that  the provisions of this      Act shall,  during such  period  as      may be specified in the order, have      effect subject to such adaptations,      whether  by  way  of  modification,      addition or omission, as it my deem      to be necessary or expedient.      Provided that  no such  order shall      be made  either two  years from the      date of commencement of this Act.      (2)  Every  order  made  under  sub      section (1)  shall be  laid  before      both   the    Houses    of    State      Legislature.      (3) No  order under sub-section (1)      shall be  called in question in any      court  on   the  ground   that   no      difficulty as  is  referred  to  in      sub-section (1) existed or required      to be removed."      Then   follows    Section   33-A   which   deals   with Regularisation of certain appointment. The said Section with its  relevant   amendments  is   germane  to   the   present controversy. The relevant provisions thereof read as under :      "33-A.  Regularisation  of  certain      appointments -  (1)  Every  teacher      directly  appointed,   before   the      commencement of  the Uttar  Pradesh      Secondary    Education     Services      Commission  and   Selection  Boards      (Amendment) Ordinance,  1985, on ad      hoc  basis  against  a  substantive      vacancy    in    accordance    with      paragraph  2   of   Uttar   Pradesh      Secondary    Education     Services      Commission (Removal of Difficulties      Order, 1981)  as amended  from time      to   time,    who   possesses   the      qualifications prescribed under, or      is     exempted      from      such      qualifications in  accordance with,      the provisions  of the Intermediate      Education Act,  1921,  shall,  with      effect  from   the  date   of  such      commencement,  be  deemed  to  have      appointed in a substantive capacity      provided  such   teacher  has  been      continuously      serving       the      institution   from the date of such      appointment up  to the date of such      commencement.      (1-A) Every  teacher  appointed  by      promotion, on  ad hoc basis against      a substantive vacancy in accordance      with  paragraph   2  of  the  Uttar      Pradesh     Secondary     Education      Services  Commission   (Removal  of      Difficulties   Order,    1981,   as      amended  from  time  to  time,  who



    possesses    the     qualifications      prescribed under,  or  is  exempted      from   such    qualifications    in      accordance  with the provisions of,      the  Intermediate   Education  Act,      1921 shall,  with effect  from  the      date of  commencement of  the Uttar      Pradesh     Secondary     Education      Services Commission  and  Selection      Boards (Amendment)  Act,  1991,  be      deemed to  have been appointed in a      substantive capacity  provided such      teacher     has  been  continuously      serving the  institution  from  the      date of  such ad hoc appointment to      the date of such commencement.      (i) they  are members  of  a  Hindu      undivided family;  or (ii) they are      husband and  wife; or      (iii) the one is related to the      other in the manner indicated in      the Second Schedule to the      Intermediate Education Act, 1921."      We may  now refer  to the  relevant rules  framed by to Governor in exercise of powers conferred under Section 35 of the Act.  The relevant  rules of our purpose is Rule 4 which deals with  ’Determination and  intimation of vacancies’. It lays down that ’ the Management shall determine and intimate to the Commission, in the proforma given in Appendix ’A’ and in the manner hereinafter specified, the number of vacancies existing or  likely  to  fall  vacant  during  the  year  of recruitment and,  in the  case of  any post,  other than the post of  the head  of an  institution, also  the  number  of vacancies to be reserved for the candidates belonging to the scheduled castes,  scheduled tribes  and other  category  of persons in accordance with the rules or orders issued by the Government in  this behalf  in  regard  to  the  educational institutions.’ Clauses  (ii) of  Rule 4(1) provides that ’in regard to the post of head of an institution, the Management shall  also   forward,  mutatis   mutandis  in   the  manner hereinafter specified,  the names  of  the  two  senior-most teachers,  copies   of  their   service  records  (including character role(s)  and such  other record  or particulars as the commission  may require  from where  a vacancy occurs at any time  during the  session or  after the  requisition  as already been sent in accordance with sub-rules (2), (3), (4) or (5)  of these  Rules, the  Management  shall  notify  the vacancy to  the Inspector  within 15  days of its occurrence and the Inspector and the Deputy Director shall deal with it in the  manner mentioned  in sub-rules (3) and (4) within 10 days of  its receipt  by them.  The next  relevant statutory provision is  furnished by the Order which may be  styled as the first  Order is  dated 31st  July 1981.  The Preamble of the said Order reads as under :      "Whereas,   the    Uttar    Pradesh      Secondary    Education     Services      Commission  and   Selection  Boards      Ordinance,  1981   (U.P.  Ordinance      NO.8 of  1981) was  promulgated  on      July  10,   1981  with  a  view  to      establish  a   Secondary  Education      Services Commission and six or more      Secondary Education Election Boards      for selection of teachers in Boards      for  selection   of   teachers   in



    institutions recognised  under  the      intermediate Education Act, 1921;      And, whereas,  the establishment of      the Commission  and  the  Selection      Boards is likely to  take some time      and even after the establishment of      the said  Commission and Boards, it      is not  possible to  make selection      of  the   teachers  for  first  few      months:      And, whereas, a number of vacancies      in the posts of teachers in various      institutions recognised  under  the      intermediate Education  Act,  1921,      exist and  the failure  or delay in      filling up  of  such  vacancies  is      likely to create difficulties;      Now, therefore, in exercise of the      powers under section 33 of the      Uttar Pradesh Secondary Education      Services Commission and Selection      Boards Ordinance, 1981 (U.P.      Ordinance No.8 of 1981). The      Governor is pleased to direct that      the provisions of the said      Ordinance shall have effect subject      to provisions of the following      Order :      ....................."      Paragraphs 2 and 4 of the said Order are required to be noted at this stage. They read as under :      "2.  Vacancies   in  which  ad  hoc      appointment  can   be  made  -  The      management of  an  institution  may      appoint by  promotion or  by direct      recruitment a  teacher on purely ad      hoc basis  in accordance  with  the      provisions of  this  Order  in  the      following cases, namely :-      (a) in  the case  of a  substantive      vacancy existing  on  the  date  of      commencement of  this Order  caused      by death,  retirement,  resignation      or otherwise;      (b) in the case of a leave vacancy,      where  the   whole   or   unexpired      portion  of  the  leave  is  for  a      period exceeding  two months on the      date of such commencement;      (c) where  a vacancy  of the nature      specified in  clause (a)  or clause      (b) into  existence within a period      of two  months  subsequent  to  the      date of such commencement.      3......................      4. Ad hoc appointment by promotion      (1) Every vacancy in the post of      the Head of an institution  may be      filled by promotion :-      (a) in  the case of an intermediate      College, by  the seniormost teacher      of   the    institution   in    the      lecturer’s grade:      (b) in  the case  of a  High School      raised   to   the   level   of   an



    intermediate   College,    by   the      Headmaster  of   such  Junior  High      School.      (c) in  the  case  of  Junior  High      School raised  to the  level  of  a      High School,  by the  Headmaster of      such Junior High School.      (2) Every  vacancy in the post of a      teacher in  Lecturer’s grade may be      filled   by    promotion   by   the      seniormost    teacher     of    the      institution in the trained graduate      (L.T.) grade.      (3) Every  vacancy in  the post  of      teacher  in  the  trained  graduate      (L.T.) grade  shall  be  filled  by      promotion by the seniormost teacher      of the  institution in  the trained      undergraduate (C.T.) grade.      (4) Every  vacancy in the post of a      teacher     in      the     trained      undergraduate (C.T.) grade shall be      filled     by  promotion   by   the      seniormost    teacher     of    the      institution in  the J.T.C. grade or      B.T.C. grade.      Explanation -  For the  purpose  of      clauses  (10   to   (4)   of   this      paragraph      the       expression      "seniormost  teacher"   means   the      teacher having  longest  continuous      service in  the institution  in the      Lecturer’s  grade  or  the  trained      graduate (L.T.)  grade or J.T.C. or      B.T.C. grade, as the case may be."      This order  was followed by the Second Order dated 11th September 1981. It was also obviously enacted in exercise of powers of  the Governor  under Section  33 of  the Act.  The Preamble of the Second Order reads as under :        "Whereas,   the   Uttar   Pradesh      Secondary    Education     Services      Commission  and   Selection  Boards      Ordinance, and  Selection  No.8  of      1981), was  promulgated on July 10,      1981 with  a view  to  establish  a      Secondary    Education     Services      Commission   and    six   or   more      Secondary Education and six or more      Secondary    Education    Selection      Boards for  selection   of teachers      in  the   institutions   recognised      under  the  Intermediate  Education      Act, 1921 (U.P. Act No.11 of 1921);      And whereas,  the establishment  of      the Commission  and  the  Selection      Boards is  likely to take some time      and even after the establishment of      the said  Commission and Boards, it      may not  be possible  for the first      few months;      And whereas,  a number of vacancies      in the posts of teachers in various      institutions recognised  under  the      said Act  exist and  the failure or      delay  in   filling  up   of   such



    vacancies  is   likely  to   create      difficulties;      And  whereas,  the  filling  up  of      certain    short-term     temporary      vacancies, caused by grant of leave      to or on account of suspension of a      teacher or otherwise, in accordance      with the  provisions of  the  Uttar      Pradesh     Secondary     Education      Services  Commission   (Removal  of      Difficulties) Order, 1981 is likely      to   delay   the   appointment   of      substitutes in such vacancies :      Now, therefore,  in exercise of the      powers  under  sub-section  (i)  of      section 33  of  the  Uttar  Pradesh      Secondary    Education     Services      Commission  and   Selection  Boards      Ordinance,  1981   (U.P.  Ordinance      No.8 of 1981), read with section 21      of  the   U.P.  Act  1  1904),  the      Governor is  pleased to direct that      the   provisions    of   the   said      Ordinance shall have effect subject      to the  provisions of the following      Order :      .................."      Paragraph 2  of the said Order date with "Procedure for filling up  short term  vacancies’ with  which  we  are  not concerned. The  relevant clause  of the said Second Order is Paragraph 6  which seeks  to substitute  paragraph  2  which reads as under :      "5. Substitution  of Paragraph 2 of      the First  Removal of  Difficulties      Order, 1981-In the First Removal of      Difficulties   Order,   1981,   for      paragraph    2,    the    following      paragraph  shall   be  substituted,      namely -      ,2.   The    management    of    an      institution    may    appoint    by      promotion or by direct recruitment,      a teacher on purely ad hoc basis in      accordance with  the provisions  of      this  Order   in  the   case  of  a      substantive   vacancy   caused   by      death, retirement,  resignation  or      otherwise."      In the  background of the aforesaid statutory scheme it would be  necessary to  examine the  scope and  ambit of the U.P. Secondary  Education Services  Commission and Selection Boards (Amendment) Act. 1991 whereby Section 33-A of the Act underwent substantial  amendments and  brought on the Statue Book provisions  of Section 33-A(1)(1-A) and (1-C) which are extracted of  Objects and Reasons for the said Amendment Act of 1991  being U.P.  Act 28  of 1991 deserves to be noted in this connection. It reads as under :      Prefatory Note-Statement of Objects      and  Reasons-Section  33-A  of  the      Uttar Pradesh  Secondary  Education      Services Commission  and  Selection      Boards Act,  1982 provides  for the      regularisation of  the Services  of      such  teachers  as  were  appointed      directly before June 12, 1985 on ad



    hoc basis  against paragraph  2  of      the   Uttar    Pradesh    Secondary      Education    Services    Commission      (Removal  of  Difficulties)  Order,      1981 and  possessing the prescribed      qualifications     of      exempted      therefrom. It  has been  decided to      amend the  said Act  to  regularise      the  services  of  those  qualified      teachers also who were -      (a) appointed  by promotion  on  ad      hoc   basis   against   substantive      vacancies in  accordance  with  the      provisions of  paragraph 2  of  the      said  Order   of   1981   and   are      continuing   as   such;   and   (b)      appointed by promotion or by direct      requirement before July 13, 1989 on      ad hoc  basis  against  substantive      vacancies   in    accordance   with      Section   accordance with   Section      18  of   the  said   Act  and   are      continuously serving  as  such.  2.      Since Certificate of Teaching grade      has been  declared to  be  a  dying      cadre from  May 13,  1989  in  non-      Government  Secondary  Schools  and      been stopped,  it has  been decided      that the services of those teachers      who were  directly appointed  on ad      hoc   basis   against   substantive      vacancies in  such grade after June      12, 1995  and before  may 13, 1989,      in accordance  with the  provisions      of paragraph 2 of the said Order of      1981 and  are  continuing  as  such      should also be regularised.      3. Since  the State Legislature was      not  in   session   and   immediate      legislative action to implement the      said decision  was  necessary,  the      Uttar Pradesh  Secondary  Education      Services Commission  and  Selection      Boards (Amendment)  Ordinance  1991      (U.P. Ordinance No. 28 of 1991) was      promulgated  by   the  Governor  on      April 8, 1991."      It is  in the  light of  the aforesaid statutory scheme governing the  controversy  in  question  that  we  have  to examine the  main  contentions  of  the  contesting  parties giving rise  to the  aforesaid points  for determination. We accordingly proceed to deal with these points seriatim.      Point No.1      So far  as this  point is  concerned  a  mere  look  at Section 33-A  (10 (1-A)  shows that before it can be pressed in service the following conditions must be satisfied by the concerned teacher who claims to be regularised thereunder :      1.   A    teacher   including   the      Principal as  per Section  2(k)  of      the Act must have been appointed by      promotion on ad hoc basis against a      substantive post.      2. Such  appointment must have been      made in accordance with paragraph 2      of  the  First  Order  of  1981  as



    amended from time to time.      3.    He     must    possess    the      qualifications prescribed under the      Intermediate Education Act, 1921 or      might  have been exempted from such      qualifications.      4.  Regularisation   will  be  with      effect  from   the  date   of   the      commencement of the Amending Act of      1991.      5. Subject  to the  rider that such      teacher  should   be   continuously      serving in  the institution    from      the date  of his initial and ad hoc      appointment till  the date  of  the      commencement of the Amending Act on      1991.      Before the  proceed to  examine the  case of  the  writ petitioner for  regularisation under the aforesaid provision and try to find out whether all the aforesaid conditions are satisfied by  the writ  petitioner or  not  one  preliminary objection to  such  consideration  as  put  forward  by  the learned counsel  for the  contesting respondent  has  to  be noted for  being dealt with. His objection is that the Order of 1981  itself as  amended from time to time will not apply in the  case of  the writ  petitioner. He  fairly state that such a  contention  was  not  canvassed  either  before  the learned Single  Judge or  before the  Division Bench  of the High Court  and the  controversy before  the High  Court was limited to  the question  of applicability of paragraph 4 or paragraph 2  of the  said Order so as to attract or rule out the provisions  of Section  33-A(1) (1-A).  However  as  the contention went  to the root of the matter we have permitted learned counsel  for the  contesting respondent  to  agitate this point for our consideration.      Learned counsel for the contesting respondent submitted that the  First Removal  of Difficulties  Order or  for that First Removal  of Difficulties  Order or for that matter the second one  will have  to be appreciated in the light of the Preambles as  concerned which resulted into these Orders. It is of  course true  that these  Preambles pointed  out  that number of  vacancies were  existing by the time the Act came into force  or for  that matter  even at  the time  when the Ordinance preceding  the Act  was  promulgated  and  it  was likely that  some time  would be  taken before the machinery for filling  up of  these posts  by selection  would  become fully operative  and that  there were number of vacancies in the posts  of teachers  in various  institutions  recognised under the Intermediate Education act, 1921 and the delay  in filling up  these vacancies  through the selection machinery envisaged  by   the  Ordinance   and  the  Act  would  cause difficulties.  It is also true that paragraph 2 of the First Order  of   31st  July  1981  clearly  laid  down  that  the management of the institution may appoint by promotion or by direct recruitment  may appoint  by promotion  or by  direct recruitment a  teacher on  purely ad hoc basis in connection with a substantive vacancies might have  come into existence within a  period of  two months  subsequent to  the date  of commencement. These  provisions had  a direct nexus with the date of  commencement of the Order, namely,  31st July 1981. Consequently it could have been said with some emphasis that substantive vacancy  of a  Principal  with    which  we  are concerned should  have a  either  existed  on  the  date  of commencement of  First Order,  i.e. 31st  July  1981  or  at latest within two months thereafter and such a vacancy could



be filled up by the management by promotion as per paragraph 2. However  said paragraph  2 concerning substantive vacancy underwent a sea change by the subsequent Order, that it, the Second Order  dated 11th  September 1981.  As we  have  seen earlier the said substituted paragraph 2 has no nexus to any existing vacancy on the date of commencement of the Order or to a  vacancy arising  only within  a period  of two  months thereafter. On  the contrary it operates in future and takes in its  sweep all  substantive vacancies caused in future by death, retirement,  resignation or  otherwise of  a  teacher which could  be filled up by the management by promotion  on purely ad  hoc basis.  It is of course true that the amended paragraph 2  of the First Order as substituted by the Second Removal of  Difficulties Order talks of the vacancies caused by death, retirement etc. But that does not necessarily mean that they  should have  been caused  by the  time the Second Order came into force. Such an intention of the Order making authority is  contra-indicated by the express terminology of the  substituted  paragraph  2  as  distinguished  from  the hearlier existing  paragraph 2(a)  in the Order of 21st July 1991 which  had clearly  linked such  substantive  vacancies with  the   date  of   commencement  of   the  First  Order. Consequently  on   the  express   language  of   substituted paragraph 2  of the  First Removal  of Difficulties Order by the   Second it is not possible to agree with the contention of learned  counsel for  contesting respondent that even the substituted still  limit the  substantive vacancies  only to the date  of the commencement of even the Second Order. Such an interpretation  would fly  in the  face  of  the  express language employed  by the  Order making   authority  in  the substituted paragraph  2 of  the First Order. it is now well settled that  the Preamble  of a statutory instrument cannot control the  express clear language and sweep of the express language of  a statutory provision be curtailed or read down in the light of the Preamble in the absence of any ambiguity in   the enacted  provision. In this connection we may refer to a  decision of  a two  Mazdoor Sangh  v.  Nation  Textile Corporation (South  Maharashtra) Ltd.  & Ors.  1995(6) SCALE 609 S.C.  Agrawal, J.  speaking for  the  Court  relying  on earlier decisions of this Court has observed in paragraph 10 of the Report as under :      "..........  It   is  one   of  the      cardinal    principles    of    the      statutory construction  that  where      the language  of an  Act is  clear,      the Preamble  cannot be  invoked to      curtail or  restrict the  scope  of      invoked to enactment and only where      the  object   or   meaning   of   a      enactment is not clear the Preamble      may resorted  to explain it. (See :      Burrakur Coal Co. Ltd, vs. Union of      India 1962 1 SCR 44 at page and M/s      Motipur zamindary  Co. (P)  Ltd. v.      The State  of Bihar  1962 Supp. (1)      SCR 498 at page 504."      Learned counsel for the contesting respondent, however, invited our  attention to  the following  judgments of  this Court :      1. State  of Karnataka  & Anr. etc.      v. Shri  Ranganatha  Reddy  &  Anr.      etc. - 1978 (1) SCR 641.      2.  Secretary,  Regional  Transport      Authority. Bangalore and another v.      D.P. Sharma  & Ors.  1989 Supp. (1)



    SCC 407.      3. His Holiness Kesavananda Bharati      Sripadagalvaru  etc.  v.  State  of      Kerala &  Anr. etc.  1973  (4)  SCC      225.      4. Minerva  Mills Ltd.  &  Ors.  v.      Union of  India & Ors. 1980 (2) SCC      591.      There cannot  be any  dispute in  connection  with  the settled legal  position that  when  the  provisions  of  the Statute are not clear Preamble can looked at to find out the real object of enactment. But in the present case as we have seen earlier  whatever the  Preamble might have said a clear distinct intention  to the contrary is seen from substituted paragraph 2  by Second  Removal of  Difficulties  Order.  It must, therefore, be held that the Order making authority had tried to go beyond the scope of  the Preamble while enacting the substituted  paragraph 2 when the earlier paragraph 2 of the First Order ran parallel to the Preamble. Even otherwise as held  by this Court in the case of Prabhat Kumar Sharma & Ors. v.  State of  U.P. & Ors. JT 1966(s) SC 579 the Removal of Difficulties Order has a permanent operational effect and would necessarily,  therefore, cover  all  future  vacancies after 1981.      In  view  of  the  aforesaid  settled  legal  position, therefore, it  must be held that paragraph 2 as  substituted by the  Second Removal  of Difficulties  Order would take in its sweep  even future  substantive  vacancies  of  teachers including Principles  which might  be caused  on account  of contingencies contemplated  thereunder and  the  said  Order would continue  to operate  till it  was rescinded.  In this connection it  is profitable to have a look at Section 33 of the Act  under which these Orders have been enacted. As seen earlier the  said Section provides that the State Government may, for  the purpose  of  removing  any  difficulty,  by  a notified order,  direct that  the  provisions  of  this  Act shall, during  such period as may be specified in the order, during such  period as  may be  specified in the order, have effect subject  to  such  adaptations,  whether  by  way  of modification, addition  or omission,  as it  may deem  to be necessary or  expedient. Consequently  the State  Government would have  provided the  period during  which such an Order could operate.  But such  a provision  is not found in these Orders limiting  their period  of operation. It is of course true that  the proviso to Section 33 had laid down that such Order could  not be made beyond two years of the coming into force of  the Act.  But as  both the  aforesaid Orders  were enacted within  that time  they had  to operate on their own once their  duration of  operation was  not laid down by the Order making  authority in its wisdom. In fact this question is concluded  by the decision of this Court in Prabhat Kumar Sharma (supra).  In the said decision a Bench of two learned Judges of  this Court  speaking through  K. Ramaswamy, J. in its   order has  laid down  that the Removal of Difficulties Order is a permanent one and not transient as contended for. For arriving  at that  conclusion the Bench had referred to, with approval,  the decision  of a  Full Bench  of Allahabad High Court  in the case of Radha Raizada & Ors. v. Committee of Management  Vidyawati  Darbari  Girls  College  &  Ors  . 1994(3) UPLBEC  1551. Once  these  Removal  of  Difficulties Orders of 1991 are held to be of permanent nature and would, therefore, operate  to cover  future vacancies  also,  it is not possible to agree with the contention of learned counsel for the  contesting respondent  that these  Orders could not cover in  their sweep  the vacancy  of the  Principal of not



cover in  their sweep  the vacancy  of the  Principal of the College in  question which  arose  from  1st  July  1988  on superannuation   of   the   then   Principal   Shri   Misra. Consequently the  preliminary objection  raised  by  learned counsel for the contesting respondent stands rejected.      Now is  the time  for us to revert to the consideration of the question whether Section 33-A(1) (1-A) would apply in the case  of writ  petitioner. So far as the first condition for its  applicability is  concerned it  cannot be  disputed that the  writ petitioner  was appointed  by promotion on ad hoc basis  against substantive  vacancy of  the Principal as the then  Principal Shri Misra retired on 30th June 1988. We will revert to the controversy whether the writ petitioner’s appointment by  promotion on  ad hoc  basis was  with effect from 1st  July 1988 or from 29th October 1988 a little later when we  will dealt  with Point No.2 . For the time being it is sufficient  to note  that much  before  the  coming  into operation of  Section 33-A(1)  (1-A) the writ petitioner was promoted on ad hoc basis as Principal of the College against the substantive  vacancy caused by the superannuation of the then Principal.  When we  turn to  the second  condition for applicability of  Section 33-A(1)(1-A)  it has  to  be  seen whether such  promotion of  the    writ  petitioner  was  in accordance with  paragraph 2  of the  1981 Order  as amended from time  to time. As we have observed earlier, paragraph 2 of the  First Order  of 1981  as it  was couched in the then existing form  might have  curtailed the  filling up of such vacancy with  reference to only the then existing up of such vacancy with  reference to only the then existing vacancy on the commencement  of the  Order or as existing within two by the  Order   making  authority   in  its  wisdom  by  wholly substituting paragraph  2 by  the Second  (Amendment)  Order shows that  it has no nexus with the then existing vacancies and would  cover even  future substantive vacancy was as per paragraph 4  and not  paragraph 2  of  the  First  Order  as amended by  the Second  Order. When  we keep  paragraph 2 as substituted by  Second Order in juxtaposition with paragraph 4 of  the First  order  which  had  remained  unamended  and untouched by the Second (Amendment) Order we find  that both operate on  the same  field. Paragraph  2 as  amended stated that the  management may  appoint  by  way  of  promotion  a teacher on  purely ad  hoc  basis  in  accordance  with  the provisions of  the Order  in  case  of  substantive  vacancy caused,  amongst  others,  by  retirement  of  the  outgoing teacher. As  ’teacher’ included  Principal  as  provided  by Section 2(k)  of the Act the thrust of the amended paragraph 2 would  read that  a substantive  vacancy of Principal also can be filled up by the management by promotion of a teacher on purely ad hoc basis. But while filling up such vacancy by promotion on  ad hoc  basis the  procedure laid  down by the Order has  to be kept in view. Paragraph 4 of the Order lays down the  procedure and  gives the  guidelines as to how the vacancy of  the head of the institution, i.e., the Principal as earmarked by paragraph 2 has to be filled in. Paragraph 2 specified  the  vacancy  and  paragraph  4  deals  with  the procedure for  filling up  such a  vacancy. When  we turn to paragraph 4  we find that ad hoc appointment by promotion in the post  of Head  of the institution has to be made only by appointing the senior-most teacher of the institution. It is not as  if paragraph 4 operates independently of paragraph 2 in its  sweep covers  substantive vacancies  of all teachers who might  have died  or retired  or resigned  or might have died  or   retired  or  resigned  or  might  have  gone  out otherwise. But  while coming  to the Head of the institution special procedure  has been  provided in  paragraph 4 and to



that extent  paragraph 4  is a  proviso to paragraph 2 or is complementary to  it and both operate in the same field when the question   of  filling up  of a substantive vacancy of a Principal who  is a  Head of  institution,  arises  for  the management which  has to  fill up  such a  vacancy on ad hoc basis  by   appointing  the   senior-most  teacher   of  the institution  in  the  lecturers’  grade.  With  respect  the Division Bench  of the  High Court  erred in taking the view that paragraph  4 would operate independently of paragraph 2 or has  no nexus with paragraph 2. In fact paragraph 2 and 4 will have to be read together as the terminology employed in paragraph  2   enjoining  the   institution  to  appoint  by promotion a  teacher on  purely ad  hoc basis  in accordance with the  provisions of  this Order  which would necessarily bring in the sweep of paragraph 2 the procedure laid down by paragraph  4   and  the   guidelines  contained  therein  in connection with  the filling up of the vacancies of teachers who were  heading the  institutions and who might have died, retired or  resigned or  might have  gone, otherwise, out of office as  laid down  by paragraph 2. It must, therefore, be held that the appointment of writ petitioner by promotion on ad hoc  basis on  the post  of Principal  when a substantive vacancy was  caused on  account of  the  retirement  of  the erstwhile Principal got squarely covered by paragraph 2 read with paragraph  4 of  the Order  and it  could not  be said, therefore. that  the second  condition for  applicability of Section 33-A(1)(1-A)  was not  fulfilled in the present case erroneously held  in the  judgment under  appeal. The second condition  for   applicability  of   Section   33-A(1)(1-A), therefore, is  also complied with in the present case by the writ petitioner.  So far as the third condition is concerned there is  no dispute  that the writ petitioner possessed all the qualifications  prescribed under  the Act  of  1991  for filling up  the said  post. So  far as  the fourth and fifth conditions are concerned they are also fulfilled by the writ petitioner as  he claims  regularisation from  the  date  of commencement of  the Amending  Act of  1901, that  is,  with effect from  6th April  and till  that date he had worked as promote Principal on ad hoc basis continuously from the date of his  initial entry  as a promotee ad hoc Principal of the College. Thus  all the  five conditions for applicability of Section 33-A(1)(1-A)  were fulfilled by the writ petitioner. It must,  therefore, be  held that  he became  a regularised Principal of the College with effect from 6th April 1991 and had to  be treated  to be  on probation  on the said post of Principal  from   6th  April   1991.  Consequently  all  the subsequent exercises of course in ignorance of the aforesaid statutory provisions  and the  deeming effect  thereof would pale into  insignificance and would be otios with the result that whoever  emerged successful  in the  selection  process would have no post to fall back upon or to occupy. The first point for  determination  is  accordingly  answered  in  the affirmative.      Point No.2      So far  as this  point is concerned learned counsel for the contesting  respondent vehemently submitted that Section 18 of  the Act  which is  a paramount provision clearly lays down the  procedure to  be followed  by the  management  for filling up  ad hoc basis the vacancies which might have been notified to the Commission in accordance with the provisions of the  act and once the said provision operates paragraph 2 or  paragraph   4  of  the  Order  which  is  a  subordinate legislation must  give way  to this parent provision. So far as this  submission way to those parent provision. So far as this submission  is  concerned  let  us  first  see  whether



Section 18  attracted in  the facts of the present case. For applicability of  Section 18  two conditions are required to be fulfilled  - (i)  the management  must have  notified the vacancy to  the Commission in accordance with the provisions of the  Act and  the rules  framed thereunder which lay down that on  occurrence of vacancy within 15 days the management has to  notify  such  vacancy  to  the  Commission  and  the management has  to send  names of  two senior-most  teachers whose claims  have to  be considered  by the  Commission and (ii) after  such notification  the  Commission  should  have failed to recommend the name of any suitable candidate for a period of  one  year  or  the  concerned  post  should  have remained actually  vacant for more than two months. If these two contingencies  occur then  the management may appoint by promotion a  teacher on  purely ad  hoc basis as per Section 18. On the facts of the present case the first condition got satisfied as  it is an admitted position between the parties as noted  by the  Division Bench  of the  High Court  in the judgment under  appeal that  respondent no.4  (present  writ petitioner) was  senior to the appellant before the Division Bench (present  contesting respondent)  and it  was  further admitted that  the  management  in  July  1988  was  further admitted that the management in July 1988 sent a requisition to the U.P. Secondary Education Services Selection Board for selection of  a regular  Principal of the College and it had also sent the names of both these contesting teachers to the Board which  called both  of them  and others for interview. However before that was done on the very first day, that is, 1st of  July 1988  the  writ  petitioner  got  appointed  by promotion.  If   that  appointment  was  purely  a  stop-gap arrangement of  holding  charge,  as  submitted  by  learned counsel  for   the  contesting   respondent,  and  became  a promotional appointment on ad hoc basis only on 29th October 1988 by  Resolution of the Managing Committee then it can be said that  the first  condition for applicability of Section 18  was  satisfied.  So  far  as  the  second  condition  is concerned the  learned  counsel  for  contesting  respondent submitted that  even  that  is  satisfied  because  Managing Committee appointed  the writ  petitioner by  way of  ad hoc promotion as  Principal of  the college only on 29th October 1988 and  till that  time post of the Principal had actually remained vacant  as the  President of  the  College  had  no authority to  appoint by ad hoc promotion any teacher to the post of  Principal. Consequently  for applicability  of both these conditions  the scope  and ambit  of the Resolution of the Managing  Committee dated 29th October 1988 would assume great  significance.   If  the   said  Resolution   operated prospectively as contended by learned counsel for contesting respondent then  both the conditions of Section 18 would get attracted. If on the other hand the said Resolution ratified the ad hoc promotion of the writ petitioner with effect from 1st July  1988 then  none of  the conditions  of Section  18 would come  in the  way of  the writ petitioner or would out across the  applicability of  Section 32-A(1)(1-A)  and  the appointment would  remain within the foreigners of paragraph 2 of the Order as amended by the Second Order.      So far  as this  question is  concerned, therefore,  we have to  look at  the wordings  of the First Promotion Order and the  wordings of  the Managing Committee’s Resolution of 29th October  1988. So  far as  the first appointment of the writ petitioner  dated 30th  June 1988  is concerned  it was obviously made  by the  President of  the College appointing the writ petitioner on the post of Principal by promotion on ad hoc  basis. But  the said appointment was made subject to any contrary  decision by  the Management or emerging on the



scene any  selected candidate  from the  Secondary Education Services Commission and in either of these two eventualities the appointment  of the writ petitioner was automatically to come to  an end.  Now it must be kept in view that President of the  College was  not  a mere manager and he could act on behalf of the Managing Committee subject to the ratification of his  action by  the Managing Committee and that precisely happened by  Resolution No.2 of the Managing Committee dated 29th October 1988. We may refer to the translated version of the  said   Resolution  as  made  available  to  us  by  the contesting respondent  himself in  his counter  affidavit at Annexure ’1’.      True copy  of  resolution  No.2  :-      Passed   in   the   meeting   dated      29.10.1988,   of    the    Managing      Committee   of Sri  Brijendra  Mani      Inter College Kohadaur Pratapgarh.      Resolution No.  2:- Appointment  of      Officiating  Principal   on  ad-hoc      basis  on  the  post  of  principal      which has  fallen vacant on account      of retirement  of Sri Jagdeo Prasad      Misra the ex-Principal - Before the      Managing Committee  the application      of Sri  Munishwar Dutt  Pandey  Sr.      Most  Lecturer   Sanskrit  attested      copies of  eligibility  Certificate      and  the  report  of  Manager  were      produced.  The   Principal  of  the      college Sri  Jag Deo  Prasad  Misra      has retired after attaining the age      of 60  yrs. On  30.8.1988  and  the      post  is   vacant.   U/s.16   CH.A.      Chapter 11  of U.P.  Inter  Mediate      Education Act  1921  the  aforesaid      post is  to be  filled by promotion      of  highest   grade  of   sr.  most      lecturer.      The Managing  Committee unanimously      accept the  ad-hoc  appointment  of      Sri  Munishwar   Dutt  Pandey  M.A.      Acharya on  the basis  of his  high      service of 19 years."      [Emphasis supplied]      We  have   also  seen   the  original  version  of  the Resolution which  was in  Hindi. A copy thereof was taken on record by  consent of  parties. It is no doubt true that the Resolution had  stated that  the post  of the  Principal was vacant on  account of  retirement of  the then  Principal on 30th June  1988  and  the  post  was  to  be  filled  in  by promotion. But  that is  only introductory  paragraph of the Resolution. The  operative part  of the  Resolution  clearly mentions that  Managing Committee unanimously accepts the ad hoc appointment  of the  writ petition  Shri Munishwar  Dutt Pandey. The  original version  of this operative part of the Resolution in  Hindi states  that the management accepts the ad hoc appointment of the writ petitioner as Principal.  The words are ’tadarth niyukti sweekar karti hai’. Acceptance of the ad  hoc appointment  is different  from ordering  ad hoc appointment. In  other  words  the  operative  part  of  the Resolution does  not read  that the  Dutt Pandey  as ad  hoc Principal. On  the contrary  it states  that  the  ’Managing Committees unanimously  accepts the  ad hoc  appointment  of Shri Munishwar  Dutt Pandey’ meaning thereby that the ad hoc appointment of  the writ  petitioner made  by the  President



with effect from 1st July 1988 is ratified and approved. Not only that this aspect is further highlighted by the approval granted by  the Inspector of Schools to the said appointment by promotion  for the  purpose of salary grant from 1st July 1988 itself as seen from the letter of District Inspector of Schools dated  19th May  1989  which  accords  sanction  for payment of salary for ad hoc appointment of writ petitioner, senior most  lecturer of the College from the date of taking over charge  of the  post of Principal which fell vacant due to retirement  of the  then Principal  Shri Misra.  It is of course true  that the  said approval  letter of the District inspector of  Schools mentions  that the said appointment is under Section  18 of  the Act, but in the light of the legal position which emerges in the background of well established facts on  record it has to be held that the said appointment by promotion,  of course on ad hoc basis, was to take effect from 1st  July 1988  and it  would obviously be prior to the notification of the vacancy which would have taken place not on 1st  July 1988 itself but at any time within 15 days from the occurrence  of that vacancy. Learned counsel or the writ petitioner in  this connection  invited our attention to the Law Lexicon  Reprint Edition 1987 of Shri P. Ramanatha Aiyar wherein at  page 13  the word ’acceptance’ has been shown to have one  of the  meanings, ’  receipt of a thing offered by another with  an  intention to retain it, as acceptance of a gift’ or  ’taking and accepting of anything in good part and as it were a tacit agreement to a preceding act, which might have  been  defeated  and  avoided  were  it  not  for  such acceptance. In  our view  the phraseology  employed  by  the Managing Committee  in its  Resolution of  29th October 1988 leaves no  room for  doubt that it had accepted and ratified what its  Resident has  done when  he passed the first order promoting on  ad hoc  basis the writ petitioner as Principal of the  College with  effect from  1st  July  1988.  In  the written submissions  on behalf  of the contesting respondent it has  been pointed  out that  the agenda of the meeting of the Managing Committee was confined to the filling up of the vacancy of  Principal on ad hoc basis. We fail to appreciate how this  agenda could  be said  to have  been given a go-by when  the   Resolution  was   the  President.  The  Managing Committee was  alive to the question about filling up of the vacancy of  Principal by promotion on ad hoc basis and it is on that  subject that the Managing Committee deliberated and passed the  Resolution which  must be given effect according to its express terminology.      Faced with the aforesaid difficulty learned counsel for the contesting respondent submitted that Section 18 which is the parent  provision must  operate and  cover the  field of vacancies  which   may  come   into  existence   after   the commencement of the Act and paragraph 2 of the Order being a act  of   subordinate  legislation,  must  yield  to  parent provisions of  Section 18.  As a  general proposition of law there cannot  be any  dispute on this aspect. In the written submissions on  behalf of  the contesting  respondent it has been pointed out by referring to a decision of this Court in the case  of Ramesh Birth & Ors. etc v. Union of India & Os. etc 1989  Supp. (1) 430, that subordinate legislation cannot be in conflict with or repugnant to the parent provision. We fail to  appreciate how  this submission can be of any avail to the contesting respondent. He paragraph 2 of the Order is repugnant  to   Section  18.   It  topic,  namely,  ’Ad  hoc appointment of  teachers in  an institution  governed by the Act’.  But  a  mere  look  at  Section  33  shows  that  the legislature in its wisdom has provided that the Order making authority may  in case  of difficulties  remove the  same by



notified order.  Once that  happens the Order itself has the effect of modifying or even omitting the existing provisions of the  Act for  the period specified in the Order. As there is no  specification of any period of life for the Order and as held by this Court it operates on a permanent basis, when the Order  operates the  provisions of  the Act which may be covering the  field will  themselves get modified or altered or even  omitted. That  exercise is  permitted by the parent legislation itself by enacting Section 22 the vires of which are not  in dispute  before us.  Even that apart sub-section (2) of Section 33 itself provides that such and order has to be laid  before both the Houses of the State Legislature. So it would  get the sanction of the parent legislature itself. As we  have seen  earlier Section  18 of the Act which deals with ’appointments to be made only on recommendations of the Commission or  the  Board’  is  expressly  made  subject  to Sections 33  and 33-A,  amongst others. These provisions are in the  parent Act itself ad consequently Section 33-A which is a  part and parcel of the parent provision has to operate of its  own ad  there cannot be inconsistency or incongruity between the  two provisions of the same Act, namely, Section 18 on the one hand and Section 33-A including Section 33-A(1)(1-A) on the other.      For  all   these  reasons,   therefore,  contention  of contesting respondent  that paragraph  2 of  the Order which itself is incorporated in Section 33-A(1)(1-A) and is a part and parcel  of the  same parent  provision  is  in  any  way repugnant to  Section 18  of the Act. It must, therefore, be held that  none  of  the  conditions  for  applicability  of Section 18  is shown  to have  existed on  applicability  of Section 18  is shown  to have  existed on  the facts  of the present case, as the writ petition by the Managing Committee itself ratifying  his promotion  on ad hoc basis with effect from 1st  July 1988 prior to the notifying of the vacancy by the management  to the Commission and such appointment being made not  within two  months of such notification and as the said post  had not  remained  actually  vacant  during  that period on  account  of  the  ratification  by  the  Managing Committee of  the action  of its  President as seen earlier. The second  point for  determination, therefore, is answered in the negative. Point No.3      The answer  to this  point is  covered by the aforesaid discussion on Point No.2 and accordingly it must be answered by  holding   that  the  writ  petitioner’s  appointment  by promotion as  ad hoc  Principal was  effective from 1st July 1988.      As a result of the aforesaid discussion it must be held that the  Division Bench  of the High Court with respect was in error  when it  upset the  decision of the learned Single Judge who had held in favour of the writ petitioner. It must be held  that the  writ petitioner  was regularised  by  the deeming provision  of Section  33-A(1)(1-A) as  Principal of the College  with effect  from 8th April 1991 and contesting respondent, therefore,  could not  be appointed  to the said post pursuant to the selection process which became abortive and inoperative  in law  as there  was in fact no vacancy of the Principal  which could  be filled  up by  any  selection process undertaken  after 8th  April  1991  so  far  as  the College managed by the 4th Respondent is concerned.      In the  result this  appeal succeeds ad is allowed. The order of  the Division  Bench of  the High  Court in Special Appeal No.  300 of 1992 is quashed and set aside and instead the  order  passed  by  the  learned  Single  Judge  on  7th September 1992  is restored. Writ petitioner’s writ petition



will accordingly  stand allowed.  As a  consequence  of  the present order, the order of status quo granted on 15th April 1996  will  stand  vacated.  The  writ  petitioner  is  held entitled  to  function  as  full-fledged  Principal  of  the College subject  to his  probation  being  declared  by  the Management. In the facts and circumstances of the case there will be no order as to costs.