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PETITIONER: PRABODH VERMA AND OTHERS, ETC.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH AND OTHERS. ETC.

DATE OF JUDGMENT27/07/1984

BENCH: MADON, D.P. BENCH: 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. 217

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

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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 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.

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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

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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

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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

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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 relation  ship 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]

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    (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

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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

JUDGMENT:      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

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    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

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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,

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    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

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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

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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 thereunder 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. 1978.      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

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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

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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

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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

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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

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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

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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 teachers who had been put in the reserve pool had  been deprived, some of their livelihood and others of their chance of livelihood. Instead, the State Government accepted the  High Court  Judgment and by an order dated May 11,1979, directed  that the  services of  the  reserve  pool teachers could  not be  continued  as  the  High  Court  had declared   U.P.   Ordinance   No.   11   of   1978   to   be unconstitutional  and   further  ordered   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. The 242 Additional Director  of Education acting in pursuance of the said order  of the State Government issued letters dated May 29, 1979, to all Inspectors directing them that the services of the teachers appointed from the reserve pool could not be continued the  further in  view of  the said decision of the High Court  and that  posts should  be filled  afresh by the process of  direct recruitment. The Inspectors in their turn communicated  to   the  Committees   of  Management  of  all recognized institutions  the above  orders and  directed the Committee of  Management of  each recognized  institution to terminate the  services of reserve pool teachers employed in its  institution.  Thereupon  letters  were  issued  by  the Committees of  management to the teachers appointed from the reserve pool  referring to the said orders and intimating to them that their services would continue only upto the end of the academic  session, that  is,  upto  May  30,  1979,  and thereafter would stand terminated. Several teachers from the reserve pool  whose services  were so  terminated filed writ petitions in  the Allahabad  High Court  contending that the termination of  their services  was illegal  inasmuch as  in respect of  those who  were appointed  under U.P.  Ordinance

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No.22 of 1978, they were not parties to the Sangh’s petition 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 ordinance had not been declared  void by  the High  Court. They also contended that the  termination of  their services  was illegal  in as much as  the procedure  prescribed by section 16-G(3) of the Intermediate Education Act had not been followed. In most of these writ  petitions interim orders were passed by the High Court staying  the operation of the orders of termination of the petitioners’  services. In  one of these writ petitions, the High  Court held  that as  U.P. Ordinance No. 22 of 1978 provided that  anything done  or any action taken under U.P. Ordinance No.  10 of 1978 was to 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,  those petitioners who  were appointed  under U.P. Ordinance No. 10 of 1978  must be  deemed to  have been  appointed under 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. The  High Court  further held  that  as  the appointments of  the petitioners were bad ab initio, section 16-G(3) of the Intermediate Education Act was not attracted. The High Court accordingly dismissed that writ petition. The other writ petitions 243 filed by  teachers whose  services had  been terminated were dismissed following this judgment.      The Appeals  by Special Leave before us have been filed by the reserve pool teachers who were petitioners before the Allahabad  High   Court  in   those  writ   petitions.   The Petitioners in  the Writ Petitions before us are some of the reserve pool  teachers whose  services were  terminated as a result of the judgment of the High Court in the Sangh’s case and who  have directly approached this Court as also some of the reserve  pool teachers who could not be appointed in the vacancies which  had occurred  because of the interim orders passed by  the High  Court in writ petitions challenging the validity of  either U.P.  Ordinance No.  10 of  1978 or U.P. Ordinance No.22 of 1978. In these Appeals and Writ Petitions interim orders  staying the  operation of termination orders have been passed by this Court.      The judgments under appeal merely followed the decision of the  High Court  in the  Sangh’s case.  If U.P. Ordinance No.22 of  1978 were  void, it  must necessarily  follow that U.P. Ordinance No.10 of 1978 was also void as the provisions of both  these ordinances  were in  pari materia and in such event all  appointments  made  under  either  of  these  two ordinances were  ab initio  bad in  law. Sub-section  (3) of section 16-G of the Intermediate Education Act would have no application to  such a  case. That  sub-section would  apply where a  principal,  headmaster  or  teacher  who  has  been validly appointed  has been discharged, removed or dismissed from service  or reduced  in rank  or whose  emoluments have been diminished  or who  has been  served with  a notice  of termination of  service. The  provision which  would  really apply would  be sub-section  (10) of  section  16-E  of  the Intermediate Education Act under which where the Director of Education is satisfied that any person has been appointed as teacher in  contravention of  the provisions of that Act, he may after  affording an  opportunity of  being heard to such person,  cancel   such   appointment   and   pass   a   such consequential order as may be necessary. Undoubtedly, if the judgment of the High Court in the Sangh’s case were correct,

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the appointments  of the  Appellants and Petitioners were in contravention  of   the  provisions   of  the   Intermediate Education Act and their appointments were, therefore, liable to  be   cancelled.  No   opportunity  of  being  heard  had admittedly been afforded to any 244 of them  but in  view of  the High  Court’s judgment  in the Sangh’s case  affording such  opportunity would  have been a mere formality and of no use.      The  real   question  before   us,  therefore,  is  the correctness of the decision of the High Court in the Sangh’s case. Before we address ourselves to this question, we would like to  point out that the writ petition filed by the Sangh suffered from  two serious,  though not  incurable, defects. The first  defect  was  that  of  non-joinder  of  necessary parties. The  only respondents  to the Sangh’s petition were the State of Uttar Pradesh and its concerned officers. Those who  were   vitally  concerned,  namely,  the  reserve  pool teachers, were  not made parties-not even by joining some of them in  a representative  capacity, considering  that their number  was   too  large  for  all  of  them  to  be  joined individually as  respondents. The matter, therefore, came to be decided  in their  absence. A  High Court  ought  not  to decide 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 by some of them  being before  it as respondents in a representative capacity if  their number  is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of  the Sangh’s writ petition without insisting upon the reserve  pool teachers  being made  respondents to  that writ  petition,   or  at  least  some  of  them  being  made respondents  in  a  representative  capacity,  and  had  the petitioners refused  to do  so, ought to have dismissed that petition for non-joinder of necessary parties.      The second  defect was in one of the main reliefs asked for. The  first two  prayers in  the said  petition were the substantive prayers and were as follows:      "(i) To issue writ, order or direction in the nature of           certiorari calling for the records of the case and           quashing the U.P. Ordinance No. 11 of 1978 and the           telex  dated   18th  October   1978  of  Education           Secretary, U.P.,  Lucknow  and  telex  dated  19th           October  1978   of  the   Additional  Director  of           Education, Uttar Pradesh, Allahabad.      (ii) To issue a writ of mandamus, order or direction in           the nature of mandamus directing the Respondents 245           not to implement the ordinance No.22 of 1978 or to           make any  appointment on  the basis  of  ordinance           No.22 of 1978." While there can be no fault found with the second prayer, it is somewhat  astonishing to find a prayer asking for "a writ in the  nature of  certiorari calling for the records of the case and  quashing the  U P.  Ordinance No.22  of 1978". The claiming of  such a  relief shows a lack of understanding of the true nature of the writ of certiorari.      This is not the first occasion on which we have found a similar prayer when the relief claimed was on the basis that a particular  legislative measure  was unconstitutional  and void. It  will not,  therefore, be  out of  place if for the sake of  future draftsmen of writ petitions, we were to draw attention to the true nature of the writ of certiorari.      A writ  of certiorari  can never  be issued to call for the record  or papers and proceedings of an Act or Ordinance

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and  for  quashing  such  Act  or  ordinance.  The  writ  of certiorari  and   the  writs  of  habeas  corpus,  mandamus, prohibition and  quo warranto  were known  in English common law as  "prerogative writs".  "Prerogative writs,’ are to be distinguished from  "writs of right" also known as "writs of course". Writs  issued as  part of the public administration of justice  are called "writs of right" or "writs of course" because the  Crown is  bound by Magna Carta of 1215 to issue them., as  for instance,  a writ  to commence  an action  at common law.  Prerogative writs  are  (or  rather,  were)  so called because  they are  issued by  virtue of  the  Crown’s prerogative, not  as a  matter of  right but  only  on  some probable cause  being shown to the satisfaction of the court why the  extraordinary power  of the Crown should be invoked to render  assistance to  the party.  The common law regards the Sovereign  as the  source. Or  fountain of  justice, and certain  ancient  remedial  processes  of  an  extraordinary nature, known  as prerogative  writs, have from the earliest times issued  from the  Court of  King’s Bench  in which the Sovereign was  always present  in contemplation of law. (See Jowitt’s "Dictionary  of Law" vol.2, p. 1885, and Halsbury’s "Laws of England", 4th ed., vol. 11, para. 1451, f.n.3). 246      We are  concerned here  with  the  writ  of  certiorari "Certiorari’ is  a Late Latin word being the passive form of the word  "certiorari" meaning  ‘inform’ and occurred in the original Latin  words of the writ which translated read "we. being desirous  for certain  reasons, that  the said  record should  by   you  be   certified  to  us,’.  Certiorari  was essentially  a  royal  demand  for  information;  the  king, wishing to  be certified  of some  matter, orders  that  the necessary information  be  provided  for  him.  We  find  in DeSmith’s "Judicial  Review of  Administrative Action",  4th edition, page 587, some interesting instances where writs of certiorori were  so issued. Thus, these writs were addressed to the  escheator or  the sheriff  to make inquisitions: the earliest being for the year 1260. Similarly, when Parliament granted Edward  II one  foot-soldier for every township, the writ addressed  to the  sheriffs to send in returns of their townships to  the Exchequer  was a  writ of certiorari. Very soon after its first appearance this writ was used to remove to the  King’s  Court  at  Westminster  the  proceedings  of inferior  courts  of  record:  for  instance,  in  1271  the proceeding.,  in  an  assize  of  darrein  presentment  were transferred to  Westminster because  of their  dilatoriness. This power  was also assumed by the Court of Chancery and in the Tudor  an early  Stuart periods a writ of certiorari was frequently issued  to  bring  the  proceedings  of  inferior courts of  common law before the Chancellor. Later, however, the Chancery  confied its  supervisory functions to inferior courts of equity. In "A New Abridgement of the Law", Seventh Edition, Volume  II at  pages 9  and 19,  Matthew Bacon  has described a writ of certiorari in these words:           "A CERTIORARI  is an  original writ issuing out of      Chancery, or  the King’s  Bench, directed in the King’s      name, to  the judges  or officers  of inferior  courts,      commanding them  to  return  the  records  of  a  cause      pending before  them, to the end the party may have the      more sure  and speedy justice before him, or such other      justice as he shall assign to determine the cause."      By the  time of  King Charles II, however, applications for certiorari  as also  for habeas  corpus and  prohibition came to be made usually in the Court of King’s Bench.      The different  functions of  the prerogative  writs  of prohibition,  certiorari   and  mandamus   have  been   thus

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described in 247 Halsbury’s Laws  of England,  Fourth Edition,  Volume I,  in para 80:           "Historically, prohibition  was a writ whereby the      royal courts of common law prohibited other courts from      entertaining matters falling within the jurisdiction of      the common  law courts;  certiorari was issued to bring      the record  of an  inferior court into the King’s Bench      for review  or to  remove indictments for trial in that      court, mandamus  was directed  to inferior  courts  and      tribunals, and  to public officers and bodies, to order      the performance of a public duty, All three were called      prerogative  writs...During   the  seventeenth  century      certiorari evolved  as a  general remedy  to quash  the      proceedings of  inferior tribunals and was used largely      to supervise  justices of  the peace in the performance      of their  criminal and  administrative functions  under      various  statutes.  In  1700  (in  R.v.  Glamorganshire      Inhabitants(1) and  Groennevt v. Burwell(2) it was held      that the  Court  of  King’s  Bench  would  examine  the      proceedings of  all jurisdictions  erected  by  Act  of      Parliament, and  that, if under pretence of such an Act      they proceeded  to arrogate  jurisdiction to themselves      greater than  the Act warranted, the court would send a      certiorari to  them to  have their proceedings returned      to the  court, so  that the  court might  restrain them      from exceeding  that jurisdiction. If bodies exercising      such jurisdiction  did  not  perform  their  duty,  the      King’s Bench  would grant a mandamus. Prohibition would      issue if  anything remained  to prohibit.  The ambit of      certiorari and  prohibition  was  not  limited  to  the      supervision  of  functions  that  would  ordinarily  be      regarded as  strictly judicial,  and in  the nineteenth      century the  writs came  to  be  used  to  control  the      exercise of  certain administrative  functions by local      and  central   government  authorities  which  did  not      necessarily act under judicial forms."      By  the   Administration  of   Justice   (Miscellaneous provisions)  Act,  1938  (I  and  2  Geo.  6  c.63)  a  more expenditious procedure was introduced under which instead of writs, orders  of mandamus prohibition and certiorari are to be issued and the writ of quo warranto was abolished and its place an  injunction is  to issue against the usurper to the office in question restraining him from 248 acting  in  that  office  and,  if  the  case  so  requires, declaring that  office to  be vacant.  These were,  however, procedural changes  only. By  order 53  of the  Rules of the Supreme Court,  1965, substituted  for the  old order  53 by Rules of  Supreme Court  (Amendment No.3),  1977 (S.1.  1977 No.1955), far  reaching changes,  not merely in the form but in the  substance of procedural law, were introduced whereby reliefs  by   way  of   mandamus,  prohibition,  certiorari, declaration and  injunction have  been joined together under the  general   head  of   ‘judicial  review’  for  which  an application can  be made  for any or all of these reliefs in the alternative  or in addition to other reliefs arising out of the same matter and the court is also conferred the power to award  damages. An  application, however,  cannot be made without leave  of the  court and unless the court "considers that the  applicant has  a sufficient interest in the matter to  which   the   application   relates".   The   expression ‘sufficient interest’  has enabled  the court  in England to enlarge  the   rule  of  locus  standi  by  giving  to  that

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expression a liberal interpretation.      In India, prior to the Constitution, the power to issue prerogative writs was vested only in three High Courts, that is, the  High Courts established by Letters Patent issued by Queen Victoria  under authority  given by  the  Indian  High Courts Act, 1861 (24 & 25 Vict c, 104) for the establishment of the  High Courts  of Judicature at Fort William in Bengal and at  Madras and  at Bombay  for these three presidencies, namely, the  High Courts  of Calcutta,  Madras  and  Bombay. Hence this  Act is  generally called the Charter Act and the High Courts  established  there  under  the  Chartered  High Courts. These  High Courts  were the  successors so  far  as their original  jurisdictions were  concerned of the Supreme Courts which  were established  in these  three  Presidency- towns and  inherited from  those courts  the powers  of  the Courts of  King’s Bench  which included  the power  to issue prerogative writs,  Apart from  these three High Courts none of the  other High Courts in India possessed this power. The position was  changed when  the Constitution  of India  came into  force.  Article  225  continues  the  jurisdiction  of existing High  Courts. Article  226, however,  confers  upon every High  Court the  power  to  issue  to  any  person  or authority, including in proper cases, any Government, within the  territories   in  relation   to  which   it   exercises jurisdiction, "directions,  orders or writs, including writs in the  nature of  habeas corpus, mandamus, prohibition, quo warranto and  certiorari or any of them, for the enforcement of the rights 249 conferred by  Part III  or for any other purpose". It may be mentioned that  under Article  32 of  the Constitution,  the same power  as has  been conferred  upon the  High Courts is conferred upon  this Court  without any  restriction  as  to territorial  jurisdiction   but,  unlike   the  High  Court, restricted only  to the  enforcement of  any of  the  rights conferred by  Part III  of  the  Constitution,  namely,  the Fundamental Rights.  Referring to Article 226, this Court in Dwarka nath,  Hindu Undivided  Family v. Income Tax officer, Special Circle. Kanpur and another(1) said:           "This  article   is   couched   in   comprehensive      phraseology and it ex-facie confers a wide power on the      High Courts  to reach  injustice wherever  it is found.      The Constitution  designedly used  a wide  language  in      describing the  nature of  the power,  the purpose  for      which and  the person  or authority against whom it can      be exercised.  It can  issue writs  in  the  nature  of      prerogative writs  as understood  in  England  but  the      scope of  those writs also is widened by the use of the      expression ‘nature’,  for the  said expression does not      equate the writs that can be issued in India with those      in England,  but only  draws an analogy from them, That      apart High  Courts can also issue directions, orders or      writs other  than the prerogative writs. It enables the      high Courts  to mould  the reliefs to meet the peculiar      and  complicated  requirements  of  this  country.  Any      attempt to  equate the  scope of  the power of the High      Court under  Art. 226  of the Constitution with that of      the English  Courts to  issue prerogative  writs is  to      introduce the unnecessary procedural restrictions grown      over the  years in  a comparatively  small country like      England with  a unitary form of government in to a vast      country  like   India  functioning   under  a   federal      structure, such  a construction  defeats the purpose of      the article  itself. To say this is not to say that the      High  Courts   can  function   arbitrarily  under  this

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    article. Some  limitations are  implicit in the article      and others may be evolved to direct the article through      the defined channels."                                          (Emphasis supplied)      The fact that the High Courts and a fortiori this Court have power  to mould the reliefs to meet the requirements of each case 250 does not  mean that  the draftsman of a writ petition should not apply  his mind  to the  proper relief  which should  be asked for  and throw the entire burden of it upon the Court. 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. In our system  of administration  of justice  the courts have a right to  receive assistance from the Bar and it is the duty of the  advocate who  drafts a  writ petition  or any  other pleading to  ask for appropriate reliefs. The true nature of a writ  of certiorari  has been pointed out this by Court In several decisions.  We need  refer  to  only  one  of  them, namely, Udit  Narain Singh  Malpaharia v. Additional Member, Board of Revenue, Bihar,(1) In that case Subba Rao. J. as he then was, speaking for the court, said:           Certiorari lies  to  remove  for  the  purpose  of      quashing the  proceedings of  inferior courts of record      or other persons or bodies exercising judicial or quasi      judicial functions. It is not necessary for the purpose      of this appeal to notice the distinction between a writ      of certiorari  and a  writ in the nature of certiorari:      in either  case the  High  Court  directs  an  inferior      tribunal or  authority to transmit to itself the record      of proceedings  pending there  in for  scrutiny and, if      necessary, for quashing the same.      A writ  in the  nature of  certiorari is  thus a wholly inappropriate relief  to ask  for  when  the  constitutional validity of  a legislative  measure is  challenged and it is surprising to  find that in spite of repeated pronouncements of this  Court as  to the true nature of this writ it should have been  asked for in the Sangh’s petition. As pointed out in Dwarkanath’s case, under Article 226 the High Courts have the power  to issue  directions, orders and writs, including prerogative  writs,   This  power  includes  the  giving  of declarations as  also consequential reliefs including relief by way  of injunction. The proper relief for the petitioners in the Sangh’s petition to have asked was a declaration that U.P. Ordinance  No, 22 of 1978 was unconstitutional and void and, if a consequential relief was thought necessary, a writ of  mandamus  or  writ  in  the  nature  of  mandamus  or  a direction, order or injunction restraining the State and its officers from  enforcing or  giving effect to the provisions of 251 that ordinance.  The High Court granted the proper relief by declaring that  Ordinance to  be void  but it  should  have, before proceeding  to hear  the writ petition, insisted that the petitioners  should set their house in order by amending the petition  and praying for proper reliefs. The High Court was too  indulgent in  this matter.  After all, it was not a petition from  a Prisoner  languishing in  jail  or  from  a bonded labourer or a party in person or by a public spirited citizen seeking  to bring a gross injustice to the notice of the court  Here, the  High Court  had before  it as the main petitioner a  union which  had taken  collective  action  to

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enforce  its  demands  and  had  defied  the  Government  by flouting its  orders and  an ordinance  promulgated  by  the Governor, namely,  U.P. Ordinance  No. 25 of 1977 and had by reason  of   its  collective   might  ultimately   made  the Government come  to terms  with  it.  The  petitioners  were represented by well known Counsel, one of them practising in this Court.  It is  true  that  neither  this  Court  should dismiss a  writ petition  on a  mere  technicality  or  just because a  proper relief  is not asked for; but from this it does not follow that it should condone every kind of laxity. We would not have dwelt upon this aspect of the case but for the fact  that we  find that 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.      We will  now adumbrate the arguments advanced before us at Bar  at the  hearing of  these Appeals  and petitions. On behalf of  the petitioners  and Appellants  it was submitted that the  Sangh’s case  was wrongly decided by the Allahabad High Court  inasmuch as the provisions of U.P. Ordinance No. 22 of  1978 were not violative of either Article 14 or 16(1) of the  Constitution, It  was  further  submitted  that  the reserve pool  teachers, all  of whom possessed the requisite qualifications, formed  a separate  and  distinct  class  by reason of  the service  they had  rendered to  the State  in general and  to the  educational system  in Uttar Pradesh in particular in  difficult circumstances and, there fore, they were more  suited to  be appointed  to the  posts which  had fallen vacant  in recognized  institutions and which were to be filled  by direct  recruitment than  those  who  had  not rendered such service. On behalf of the Sangh, which was the only contesting Respondent before us, the same arguments 252 which had  found favour  with the  High Court  were advanced before us.  In the Sangh’s case the High Court had held that there was no justification for the reserve pool teachers not going through the procedure for filling vacancies prescribed by section  16-E of  the Intermediate Education Act and that mere service  rendered by  them during  the  period  of  the strike in the recognized institutions did not set them apart as a separate class. The High Court further held that if the vacancies which  had occurred were filled only by appointing teachers from  the reserve  pool, these teachers would block the chances of promotion of other teachers in the Licentiate Teachers’  Grade   who  were   already   working   in   such institutions. The  arguments based  on the  reasoning of the High Court  advanced before  us on  behalf of the Sangh were interlarded with  vehement and vociferous professions of the concern felt  by the  Sangh for  the maintenance of a proper educational system  in the  recognized institutions in Uttar Pradesh.  After   the  major   part  of  the  arguments  was concluded, at  the suggestion  of learned  Counsel appearing for all  parties,  further  hearing  of  these  matters  was adjourned to  enable  the  state  to  find  out  a  workable solution. When  the matter  next reached  hearing the  state expressed its  inability to  suggest any  solution. This was not surprising  because in view of the  judgment of the High Court in  the Sangh’s  case the  state  obviously  could  do nothing in  the matter.  What was,  however, surprising  was that at  this hearing  the Sangh  made a complete volte-face and withdrew its opposition to the Appeals and Petitions. On

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inquiry made  from learned  Counsel for the Sangh, we learnt that in the intervening period all the reserve pool teachers (or at  least most  of them) had joined the Sangh and become its members.  It was somewhat disconcerting to find that the concern professed  by the  Sangh for  a  proper  educational system in the State of Uttar Pradesh was motivated purely by a consideration  of  its  membership  and  that  once  these reserve pool  teachers joined  the  Sangh  and  swelled  its membership  and   augmented  its   funds  by   paying  their subscriptions, they  straightaway became  in the eyes of the Sangh suitable  to  be  appointed  in  accordance  with  the provisions of  U.P. Ordinance  No. 22  of  1978.  The  Court cannot, however,  decide constitutional  questions either by consent of  parties or  on concession  made at  the  Bar  or because there  is no  contesting respondent  before  it.  We must, therefore,  proceed to  determine the  matter  on  its merits irrespective of the attitude of the Sangh, bearing in mind both  the reasoning upon which the High Court proceeded and the  arguments advanced  by the  Sangh up to the time of its volte-face. 253      Article 14  of the  Constitution forbids  the State  to deny to  any person  equality before  the law  or the  equal protection of  the laws within the territory of India. While Article 14  applies to  all persons  within the territory of India, Article  16 applies only to citizens of India. Clause (1) of  Article 16  guarantees equality  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,  with special  reference to  the opportunity for appointment and employment under the Government (see Banarsi Dass and  others v.  The State of Uttar Pradesh and others). Today, the Government is the largest employer in the country and employment  or appointment  to an  office under  it is a valuable right  possessed by  citizens. Article 14, however, does not forbid classification. The principle underlying the guarantee of  Article 14  is not  that the same rules of law should be  applicable to all persons within the territory of India irrespective  of differences of circumstances. It only means that  all persons  similarly circumstanced  should  be treated alike  and there should be no discrimination between one person  and another  if as regards the subject-matter of the legislation,  their position  substantially the same. By the process  of classification,  the State  has the power to determine who should be regarded as a class for the purposes of legislation  and in  relation  to  a  law  enacted  on  a particular subject. The classification to be valid, however, must not be arbitrary but must be rational. It must not only be based  on some  qualities or characteristics which are to be found  in all  the persons  grouped together  and not  in others  who   are  left   out   but   those   qualities   or characteristics must  have a reasonable nexus or relation to the object  of the  legislation. In order to pass the test,: two conditions  have to  be fulfilled,  namely (1)  that the classification  must   be   founded   on   an   intelligible differention which  distinguishes  those  that  are  grouped together from  others, and  (2) the  differentia must have a rational nexus  or relation  to  the  object  sought  to  be achieved by  the legislation  (see In  re The Special Courts Bill, 1978).      If  Ordinance   No.22  of   1978  satisfies  these  two conditions it  cannot be  said to infringe the provisions of Article 14  nor would  it then be violative of Article 16(1) for it is only when citizens are

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254 similarly circumstanced  that they  can  claim  equality  of opportunity in  matters relating  to employment  or  to  any office under the State. To afford equal opportunity in these matters to  those not  similarly circumstanced  would be  to treat unequals as equal and would violate Article 14.      The first question which, therefore, arises is "Whether there is  any intelligible  differentia which  distinguishes teachers put  in the reserve pool by Ordinance No.22 of 1978 from other  applicants for  posts of  teachers in recognized institutions?" The  reserve pool teachers were those who had come forward at a time when the teachers employed or a large majority of  such teachers,  in the recognized institutions, had gone  on an  indefinite strike  and  had  continued  the strike even  after it  had been  declared illegal.  Had  the strike continued  almost all  the recognized institutions in the State  would have had to close down putting the students to great hardship and suffering and causing a break in their education. It  was in  these difficult and trying times that the reserve pool teachers came forward to man the recognized institutions. Presumably,  it was  this that brought about a settlement of  the strike, It must be borne in mind that the reserve pool  teachers joined  the  recognized  institutions during the  period of  the strike  in circumstances in which they exposed themselves to great hostility from the striking teachers. They,  therefore, did  so running a certain amount of risk  for there  is always  a  possibility  of  a  strike turning violent.  Yet another  hazard they  faced was  that, were some  of the  reserve pool  teachers to apply later for the posts  of teachers in a recognized institution which had fallen vacant  and were to be selected under section 16-E of the Intermediate  Education Act, they would have had to work together with  those teachers who had gone on strike and had been taken  back and  they would  then have  to  face  their hostility. The  assumption made  by the  High Court that the appointment of  reserve pool teachers to the vacancies which had occurred  blocked the  chances  of  promotion  of  those working in  the Licentiate  Teacher’s Grade was actually not correct. Sub-section  (2) of  section 4  of  U.P.  Ordinance No.10 of  1978 as  also of  U.P.  Ordinance  No.22  of  1978 expressly provided that the reserve pool teachers were to be appointed only to those vacancies in recognized institutions which were  to be  filled by  direct recruitment.  There was thus no  question of  a vacancy  to be  filled by  promotion being filled  by any  teacher in the reserve pool or of such reserve pool teachers blocking the chances of promotion of 255 other teachers  working in the Licentiate Teacher’s Grade in recognized institutions.  The  reserve  pool  teachers  were originally appointed  during the  period of the strike under U.P. Ordinance  No.25 of 1977 and it should be borne in mind that  this   Ordinance  expressly  required  appointment  of persons possessing  requisite qualification. All the reserve pool teachers  thus possessed  the requisite  qualifications and this  fact is  not disputed  before us. In the course of its judgment  the High  Court has  also proceeded  upon  the basis that  educational institutions  in the  State of Uttar Pradesh did not constitute an essential service but had been declared so  by the  notification dated  December 24,  1977, issued under  the U.P.  Essential Services  Maintenance Act, 1966. This  assumption was  also not correct. As pointed out earlier, sub-clause  (ii) of  clause (a) of section 2 of the U.P. Essential  Services Maintenance Act, 1966, made service under an  educational institution  recognized inter  alia by the Board  of High  School and Intermediate Education, Uttar

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Pradesh an  essential service.  The said  notification dated December 24, 1977, issued under section 3(1) of that Act was to   prohibit   strikes   in   service   under   educational institutions. An important factor in considering whether the reserve pool  teachers could  constitute  a  separate  class having an  intelligible differentia distinguishing them from other applicants  for the  posts of  teachers in  recognized institutions is  that  usually  every  year  the  number  of vacancies which  occur in  recognized institutions  is  more than the  number of  reserve pool  teachers. Admittedly, the vacancies which  were sought  to be filled by U.P. Ordinance No, 10  of 1978  and thereafter  by U.P.  Ordinance No.22 of 1978 were  more than  the number  of reserve  pool teachers. These vacancies  had occurred  within a  few months  of  the strike being settled. Almost all who applied for these posts and were not in the reserve pool must have been qualified to be appointed  to posts in recognized institutions during the pendency of  the strike.  None of these applicants, however, came forward  to join  a recognized  institution during that period  as   the  reserve   pool  teachers  did.  The  other applicants for  the posts of teachers, therefore, stood in a different class  from the reserve pool teachers and it would be wrong  to equate  these two  classes together  as forming just one class.      The second  question is "Whether this differentia which distinguishes reserve  pool teachers  from other  applicants for the  posts of  teachers in recognised institutions has a rational relation  to the  object sought  to be  achieved by U.P. Ordinances  Nos.10 and  22 of  1978?" These  Ordinances cannot be read in isolation. 256 They must  be  read  in  the  context  of  the  Intermediate Education Act.  As the  Preamble to  that Act  shows, it was enacted because  it was  felt expedient to establish a Board to take  the place of the Allahabad University inter alia in regulating and  supervising the  system of  High School  and Intermediate Education in the United Provinces, as the State of Uttar  Pradesh was  called at  the time of passing the of that Act.  The object  of that  Act as shown by its Preamble and different  provisions  is  to  ensure  that  educational institutions managed and conducted by private management are staffed and run properly. To provide therefor that those who had already  shown their  concern for  the  maintenance  and continuity of  the educational  system in  the State  should receive a  preferential treatment  in requirement over those who had  not shown such concern cannot be said to be foreign to the  object of  the legislation. If the State were not to appreciate in a concerts from the services of those who came to its  aid in  an emergency,  the result would be that in a future crises  nobody would  be willing  to come  forward to render similar  assistance to the State. If, when faced with difficulties in  maintaining a  service, and particularly an essential  service,   the  State  wants  to  overcome  those difficulties and to ensure that a similar situation does not arise in  the future,  it is  open to  the State to do so by motivating people  to come  forward and  render aid  to  the State by  making them  feel that  if they  do so, they would receive a  reward. Such motivation would be brought about by rewarding those who have rendered such services in the past. Giving a  preferential right  in recruitment would be both a reward for  past services  of this  kind and an incentive to others to  come forward and render similar assistance to the State in  the future. It cannot, therefore, be said that the action of  the State  in giving  a reward which would at the same time  be an  incentive to  others has no rational basis

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with the  objective sought  to be  achieved by the concerned legislation. In  fact the  employment  of  such  persons  by giving them  preference in recruitment would be conducive to the maintenance  and  smooth  functioning  of  an  essential service in  the future.  As the  long title  and heading  of section 4  of U.P.  Ordinance No.10  of 1978 as also of U.P. Ordinance No.22  of 1978  show. Its  object was to absorb in recognized institutions  those teachers  who had come to the assistance of  the State during the period of the indefinite strike called  by the  Sangh. It  was thus a reward to those teachers for  the services rendered by them and an incentive to others to render similar service in the future. The board objective of  the Intermediate  Education Act  is to  have a proper 257 system of  High School  and Intermediate  Education  in  the State of  Uttar Pradesh and any action taken by the State to keep this system functioning would be in furtherance of this objective and would have a rational nexus with the objective of the  Intermediate Education Act. Ordinances Nos.10 and 22 of 1978 would thus fall in the category of such action taken by the  State and would, therefore, be in furtherance of the objective  sought   to  be   achieved  by  the  Intermediate Education Act.      The reserve  pool teachers  thus formed  a separate and distinct class  from others  applicants  for  the  posts  of teachers in  recognized institutions.  The differentia which distinguished the  class of a reserve pool teachers from the class of  other applicants  for the  posts  of  teachers  in recognized institutions  is  the  service  rendered  by  the reserve pool  teachers to  the  State  and  its  educational system in  a time  of crises  and this  differentia bears  a reasonable and  rational nexus  or relation  to  the  object sought to  be achieved  by Ordinance  Nos. 10 and 22 of 1978 read with  the Intermediate  Education Act,  namely, to keep the system  of High School and Intermediate Education in the State functioning  smoothly without interruption so that the students may  not suffer  a detriment.  Those two classes of persons, namely,  the class of reserve pool teachers and the class of  other applicants  for the posts of teachers in the recognized institutions,  are  not  similarly  circumstanced and, therefore, there cannot be any question of giving these two classes  of persons  equality of  opportunity in matters relating to  employment guaranteed  by Article  16(1) of the Constitution. Thus,  neither Article 14 nor Article 16(1) of the Constitution  was violated  by the  provisions of either U.P. Ordinance  No.10 of  1978. or  U.P. Ordinance  No.22 of 1978      In our  opinion, the High Court was in error in holding that U.P.  Ordinance No.22  of 1978  was void  on the ground that its  provisions infringed  Articles 14 and 16(1) of the Constitution. If  U.P. Ordinance No.22 of 1978 was not void, equally U.P.  Ordinance No.10  of 1978  was not void on this ground. Those  teachers from  the reserve  pool who had been appointed in  pursuance of  either of  these two  Ordinances were thus  validly appointed  and their  services could  not have been  terminated on  the ground that their appointments were contrary  to law.  The aforesaid  order dated  May  21, 1979, of  the Government  of Uttar Pradesh and the aforesaid order of the Additional Director of Education, Uttar 258 Pradesh, dated  May 29,  1979, addressed to all the District Inspectors of  Schools in  Uttar Pradesh, directing that the services  of  those  reserve  pool  teachers  who  had  been appointed could  not be  continued  and  that  no  weightage

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should be  given to  the reserve  pool  teachers  in  making future   appointments   were,   therefore,   bad   in   law. Consequently, the  termination  of  the  services  of  those reserve pool  teachers who  had already  been appointed  was also bad in law. The Sangh’s case was wrongly decided by the High Court and requires to be overruled. The judgments under appeal must, therefore, be reversed and the Appeals and Writ Petitions before us allowed.      The question  which remains  to be  considered  is  the relief to  which the  reserve pool teachers are entitled. No difficulty arises in the case of those reserve pool teachers who were already appointed prior to the judgment of the High Court in the Sangh’s case and whose services were thereafter terminated and who have continued to be in service by reason of the  stay orders  passed by the High Court or this Court. They  are  entitled  to  continue  in  service.  They  were, however, appointed on probation for a period of one year and in the  ordinary course  they would have been confirmed long back. No  such confirmation  has, however,  taken, place  by reason of  the judgment  of the  High Court  in the  Sangh’s case. We  have  held  that  the  Sangh’s  case  was  wrongly decided.  These   reserve  pool  teachers  have,  therefore, suffered by  reason of  a wrong  judgment given  by the High Court and  they are  entitled to have the wrong done to them rectified. It  has not  been alleged that any of them was or is unfit  to be  confirmed. In  our opinion,  each  of  them should, therefore,  be deemed to be confirmed in the post to which he  or she  was appointed from the date on which he or she would  have completed  his or her period of probation in the normal and usual course.      Different considerations,  however, arise  with respect to those reserve pool teachers who were not appointed to the post which  had fallen  vacant. By the interim order made in the writ  petitions filed  to challenge  the vires  of  U.P. Ordinance No.10 of 1978, the operation of that Ordinance was stayed but  it was  directed that such stay would not affect appointments already  made.  A  similar  interim  order  was passed in  the  Sangh’s  petition.  No  appointment  of  any reserve  pool   teacher  was,  therefore,  made  during  the pendency of the said interim orders or after the decision 259 of the  High Court  in the  Sangh’s case. On behalf of these reserve pool  teachers it  was submitted that U.P. Ordinance No.10 of  1978 was  replaced by U.P. Ordinance No.22 of 1978 and that such repeal did not affect rights which had already accrued to  them and  had become  vested in  them under U.P. Ordinance No.10  of 1978.  It was  further submitted that in any event  if this Court holds U.P. Ordinance No. 22 of 1978 to be  valid those  reserve pool  teachers who  had not been appointed  had  also  acquired  a  vested  right  to  be  so appointed under that Ordinance. It was stated that after the decision in  the Sangh’s  case the Governor of Uttar Pradesh had withdrawn  U.P. Ordinance No.22 of 1978 under sub-clause (b) of  clause (2)  of Article  213 of  the Constitution and that assuming  that this  Ordinance was not so withdrawn, it had ceased  to operate  at  the  expiration  of  the  period specified in sub-clause (a) of clause (2) of Article 213 and that in  either events  the effect  was the  same as if that Ordinance had been repealed, In this connection reliance was placed upon  sections 6  and 30  of the U.P. General Clauses Act, 1904.  We have  already seen  that under section 30 the provisions of  U.P. General  Clauses Act apply to Ordinances promulgated by  the Governor  of Uttar Pradesh under Article 213 of  the Constitution. Section 6 deals with the effect of repeal of  an enactment  and it  provides that where any Act

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repeals any  enactment, then,  unless a  different intention appears, the  repeal shall  not inter  alia affect any right acquired under  the enactment  so repealed.  On the basis of these sections  it was  submitted that  the  effect  of  the Governor withdrawing an Ordinance under Article 213(2)(b) of the Constitution  and the  effect of an Ordinance ceasing to operate under  Article 213(2)(a) of the Constitution are the same as  the effect of the repeal of an Act and section 6 of the U.P.  General Clauses  Act, therefore,  applies in  both these cases.      The record  is not  clear whether U.P. Ordinance No. 22 of 1978  was in fact withdrawn by the Governor under Article 213 (2)  (b) of the Constitution nor has any notification to that effect  been brought  to our  notice. It  is,  however, unnecessary to  consider the  above submissions  as, in  our opinion, it  is immaterial  whether U.P. Ordinance No. 22 of 1978 was  withdrawn by the Governor or had ceased to operate because, according  to us,  what is  involved here  is a far more vital  and important  principle. Undoubtedly, a teacher in the  reserve pool had a right under U.P. Ordinance No. 10 of 1978  as also  under U.P.  Ordinance No. 22 of 1978 to be appointed to  a substantive vacancy occurring in the post of a teacher in a 260 recognized institution  which was  to be  filled  by  direct recruitment. The  Explanation  to  section  4  of  both  the Ordinances is not relevant for this purpose for all that was provided by  it was  that no teacher in the reserve pool was entitled to  claim an  appointment to  a post  which he  had joined during  the period  of the  strike  or  to  any  post carrying the  same or  a higher grade. What this Explanation meant was  that no  reserve pool teacher could claim that he should be  appointed to the identical post which he had held during the  period of  the strike  or to such post either in the same  recognized institution  or in any other recognized institution whether  it carried  the same  grade or a higher grade. What  is required to be noted is that the right which these teachers  had under Ordinance No. 10 of 1978 continued under U.P.  Ordinance No.  22 of 1978 because that Ordinance came into  force with  retrospective effect  from  June  24, 1978, that  is, the  date on  which U.P. Ordinance No. 10 of 1978 was  promulgated and by section 8 of U.P. Ordinance No. 22 of  1978 which  repealed U.P. Ordinance No. 10 of 1978 it was expressly  provided that  anything done  or  any  action taken under  U.P. Ordinance  No. 10 of 1978 should be deemed to have  been done  or taken  under U.P. Ordinance No. 22 of 1978 as  if U.P.  Ordinance No.  22 of 1978 were in force at all material  times. The  register of  reserve pool teachers maintained  under  U.P.  Ordinance  No.  10  of  1978  must, therefore, be  deemed to  be  a  register  of  reserve  pool teachers to  be maintained  under U.P.  Ordinance No.  22 of 1978. As  appears from the judgment of the High Court in the Sangh’s case,  as against  2,257 reserve pool teachers there were at  that time 2,740 substantive vacancies in recognized institutions. These  vacancies were required to be filled by direct recruitment. This fact is not disputed before us. But for the  orders of the High Court, all reserve pool teachers would therefore,  have been appointed in accordance with the provisions of  either U.P.  Ordinance No. 10 of 1978 or U.P. Ordinance No.  22 of 1978. They could not be so appointed by reason of  the interim  orders passed  by the Allahabad High Court and  the judgment  of that  High Court  in the Sangh’s case. 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

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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.  Great  prejudice  has  been suffered and  injustice done  to those reserve pool teachers who had  not been  appointed to  substantive vacancies which had occurred in 261 the posts  requiring to  be filled  by  direct  recruitment. Since we  have  held  that  the  Sangh’s  case  was  wrongly decided, it  is our  duty to undo this injustice. There are, however, certain difficulties in directing these teachers to be appointed  from the  dates on  which they would have been respectively appointed  but for the orders of the High Court because those  vacancies have already been filled and in all likelihood those  so appointed  have been confirmed in their posts and  ought not  to be  now thrown out therefrom for no fault of  theirs. In view of this fact we feel that it would be in  consonance with  justice and  equity and  fair to all parties concerned  if the  remaining teachers in the reserve pool are appointed in accordance with the provisions of U.P. Ordinance No.  22 of  1978 to  substantive vacancies  in the posts of  teachers  in  recognized  institutions  which  are required to be filled by direct recruitment as and when each such vacancy occurs.      What we  have said  above will  apply equally  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  hot  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.      To summarize our conclusions:      (1) A  High Court  ought not  to hear  and dispose of a writ petition  under Article 226 of the Constitution without the persons  who would  be vitally  affected by its judgment being before  it as  respondents or  at least  some of  them being before  it as respondents in a representative capacity if their  number is  too large  to join  them as respondents individually, and,  if the  petitioners refuse  to  so  join them, the  High Court ought to dismiss the petition for non- joinder of necessary parties.      (2)  The   Allahabad  High  Court  ought  not  to  have proceeded to  hear and  dispose of  Civil Miscellaneous Writ No. 9174  of 1978-Uttar Pradesh Madhyamik Shikshak Sangh and Others  v.   State  of   Uttar  Pradesh  and  Others-without insisting  upon   the  reserve   pool  teachers  being  made respondents to  that writ  petition or at least some of them being made  respondents thereto in a representative capacity as the number of the reserve pool teachers was too large 262 and, had  the petitioners  refused to do so, to dismiss that writ petition for non-joinder of necessary parties.      (3) A  writ of  certiorari or  a writ  in the nature of certiorari cannot  be issued  for declaring  an  Act  or  an Ordinance as  unconstitutional or void. A writ of certiorari or a  writ in the nature of certiorari can only be issued by the Supreme Court under Article 32 of the Constitution and a High Court  under Article  226 of the Constitution to direct inferior courts, tribunals or authorities to transmit to the court the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same.

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    (4) Where  it is  a petitioner’s contention that an Act or Ordinance  is unconstitutional or void, the proper relief for the  petitioner to  ask is  a declaration to that effect and if  it is  necessary, or  thought necessary to ask for a consequential relief,  to ask  for a  writ of  mandamus or a writ in  the nature  of mandamus  or a  direction, order  or injunction restraining  the concerned State and its officers from enforcing  for giving  effect to the provisions of that Act or Ordinance.      (5) Though  a High  Court ought  not to  dismiss a writ petition on  a mere  technicality or because a proper relief has not  been asked  for, it  should not, therefore, condone every kind  of laxity,  particularly where the petitioner is represented by an advocate.      (6) The  Allahabad High  Court, therefore, ought not to have proceeded  to  hear  and  dispose  of  the  said  Civil Miscellaneous Writ  No. 9174  of 1978 without insisting upon the petitioners  amending the said writ petition and praying for proper reliefs.      (7) By  reason of  the provisions  of section 30 of the General Clauses  Act, 1897,  read with clauses (54) and (61) of section  3 thereof,  it would  not be  wrong phraseology, though it may sound inelegant, to refer to a provision of an Ordinance promulgated  by the President under Article 123 of the Constitution  or prior  to the  coming into force of the constitution of  India, by  the Governor-General  under  the Indian Councils  Act, 1861,  or the Government of India Act, 1915, or the Government of India Act, 1935, as "section" and to a  sub-division of a section, numbered in round brackets, as sub-section". 263      (8) Similarly,  by reason  of the provisions of section 30 of the Uttar Pradesh General Clauses Act, 1904, read with clauses (40)  and (43) of section 4 thereof, it would not be wrong phraseology,  though it  may sound inelegant, to refer to a  provision of  an Ordinance promulgated by the Governor of Uttar  Pradesh under  Article 213  of the Constitution or prior to the coming into force of the Constitution of India, by the Governor of the United Provinces under the Government of India  Act, 1935, as "section" and to a sub-division of a section, numbered in round brackets, as "sub-section".      (9)  Neither   the  Uttar   Pradesh  High  Schools  and Intermediate Colleges  (Reserve  Pool  Teachers)  Ordinance, 1978 (U.P.  Ordinance No. 10 of 1978), nor the Uttar Pradesh High  Schools   and  Intermediate   Colleges  (Reserve  Pool Teachers) Second)  Ordinance, 1978 (U.P. Ordinance No. 22 of 1978),  infringed   Article  14  or  Article  16(1)  of  the Constitution or was unconstitutional or void.      (10) The  reserve pool  teachers formed  a separate and distinct class  from  other  applicants  for  the  posts  of teachers in recognized institutions.      (11) The  differentia which  distinguished the class of reserve pool teachers from the class of other applicants for the posts  of teachers  in recognized  institutions was  the service rendered  by the  reserve pool teachers to the State and its educational system in a time of crisis.      (12)  The  above  differentia  bore  a  reasonable  and rational nexus  or relation  to  the  object  sought  to  be achieved by U,P. Ordinances Nos, 10 and 22 of 1978 read with the Intermediate  Education Act,  1921, namely,  to keep the system of  High School  and Intermediate  Education  in  the State  of   Uttar  Pradesh   functioning  smoothly   without interruption  so   that  the   students  may  not  suffer  a detriment.      (13)  The  preferential  treatment  in  the  matter  of

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recruitment to  the posts  of  teachers  in  the  recognized institutions was,  therefore not  discriminatory and did not offend Article 14 of the Constitution.      (14) As  the  above  two  classes  were  not  similarly circumstanced. there  could be  no question of these classes of persons being 264 entitled to  equality of  opportunity in matters relating to employment guaranteed  by Article  16(1) of the Constitution and the  preferential treatment  given to  the reserve  pool teachers was,  therefore not  violative of  Article 16(1) of the Constitution.      (15) The  case of Uttar Pradesh Madhymik Shikshak Sangh and Others  v. State of Uttar Pradesh and Others was wrongly decided by  the Allahabad  High Court  and  requires  to  be overruled.      (16) The  termination of  the services  of the  reserve pool teachers  following upon  the judgment of the Allahabad High Court  was contrary  to law and the order dated May 21, 1979 of  the Government of Uttar Pradesh and the order dated May 29, 1979, of the Additional Director of Education, Uttar Pradesh, were also bad in law.      (17) Each  of the  reserve pool  teachers had  a  right under U.P.  Ordinance No.  10 of  1978  as  also  under  U.P Ordinance No.  22 of  1978 to  be appointed to a substantive vacancy occurring  in the  post of a teacher in a recognized institution which was to be filled by direct recruitment.      (18) Each  of the reserve pool teachers who had already been appointed  and was  continuing in  service by reason of the stay orders passed either by the Allahabad High Court or by this  Court is  entitled to continue in service and to be confirmed in  the post to which he or she was appointed with effect from  the date  on which  he or  she would  have been confirmed in the normal and usual course.      (19) Those reserve pool teachers who were not appointed as provided  by U.P.  Ordinance  No.  10  of  1978  or  U.P. Ordinance No.  22 of  1978 were  not so appointed because of the interim  orders passed  by the  Allahabad High Court and the judgment  of the High Court in the Sangh’s case. In view of the  fact that  this Court has held that the Sangh’s case was wrongly decided by the High Court, the injustice done to these reserve pool teachers requires to be undone.      (20) In  view of  the fact  that the vacancies to which these reserve  pool teachers  would have been appointed have already been filled and in all likelihood those so appointed have been confirmed 265 in their  posts, to  appointed these  reserve pool  teachers with effect  from any  retrospective date  would be to throw out the  present incumbents  from their jobs for no fault of theirs. It  will, therefore,  be in  consonance with justice and  equity  and  fair  to  all  parties  concerned  if  the remaining reserve  pool teachers are appointed in accordance with the  provisions of  U.P. Ordinance  No. 22  of 1978  to substantive vacancies  occurring in the posts of teachers in recognised institutions  which are  to be  filled by  direct recruitment as and when each such vacancy occurs.      (21) This  will equally  apply to  those  reserve  pool teachers whose  services were  terminated and  who  had  not filed any writ petition or who had filed a writ petition but had not  succeeded in  obtaining a  stay order,  as also  to those reserve  pool teachers  who had  not been appointed in view of  the interim  orders passed  by the  High Court  and thereafter by  reason of  the judgment  of the High Court in the Sangh’s case and who have not filed any writ petition.

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    For  the   reasons  mentioned  above,  we  allow  these appeals, reverse  the judgments  appealed  against  and  set aside  the  orders,  under  appeal,  and  allow  these  Writ petitions and  make the rule issued in each of the absolute. We overrule  the judgment of the Allahabad High Court in the case of  Uttar Pradash  and  Madyamik  Shikshak  Sangh,  and others v,  State of  Uttar Pradesh  and Others, and in these appeals  and  Writ  Petitions  we  pass  further  orders  as follows:      1.    We  declare the  orders  of  termination  of  the           services of  reserve pool  teachers to be contrary           to law  and we quash and set aside the said orders           as also  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, and all other orders, if           any, to the same effect.      2.    We  direct that each of the reserve pool teachers           who had  already been appointed and was continuing           in service  by reason  of the  stay  orders  given           either by  the Allahabad  High Court  or  by  this           Court is  entitled to  continue in  service and is           entitled to  be confirmed  in the post to which he           or she was appointed with effect from the date 266           on which  he or  she would  have been confirmed in           the normal and usual usual course.      3.    We  further direct that the remaining teachers in           the reserve  pool be  appointed in accordance with           the provisions  of the  Uttar Pradesh High Schools           and Intermediate Colleges (Reserve pool Teachers).           (Second) Ordinance  1978 (U.P. Ordinance No. 22 of           1978), to  substantive vacancies  in the  posts of           teachers  in  recognized  institutions  which  are           required to be filled by direct recruitment as and           when each such vacancy occurs.      4.    This  direction will  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, and 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.      Before we part with these Appeals and writ Petitions we would like  to mention  that in some of these writ petitions the only  relief claimed  is in  general and vague terms. We reproduce that  prayer, retaining  its errors of grammar and syntax. That prayer is as follows:           It is,  therefore, prayed  that this Hon’ble Court      be pleased  to issue such writ, order or directions for      the  enforcement  of  the  fundamental  rights  of  the      petitioner as  are deemed  fit and  reasonable by  this      Hon’ble Court  and to  grant such  other relief  to the      petitioner as  is deemed  fit and  reasonable  for  the      redress of their grievance."      In the  light of  what we  have said  above  about  the defective prayer  in the writ petition filed by the Sangh in the Allahabad  High Court,  we ought  to insist  upon  these petitioners setting  their house  in order  by amending  the prayer clause and asking for proper reliefs. These Petitions are drafted  by Advocates. It is true that these petitioners are poor and it must not have been possible for them

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267 to pay  substantial fees  to their advocates but that cannot be a  reason for  an advocate who undertakes a client’s case not to  give of  his best  to his client. An advocate should not measure  the quality  of work he will put into a case by the quantum  of fees  he receives.  Our insisting upon these petitions being so amended would, however, involve delay and as some  of these  petitioners are reserve pool teachers who were not appointed by reason of the interim orders passed by the Allahabad High Court and the judgment of that High Court in the  Sangh’s case, it would result in further hardship to them by  delaying their  employment. We have, therefore, not insisted upon  these writ  petitions being  so  amended  but passed in these writ petitions also the order set out above.      So far as the costs of these Appeals and writ petitions are concerned,  it would  not be  fair to make the State pay such costs  because that  would be to penalize the State for respecting the  judgment of the High Court by not filling an appeal against  it. It would equally be not fair to penalize the  committee  of  Management  of  recognized  institutions because they  only acted  under the  directions of the State Government  to   terminate  the  services  of  reserve  pool teachers. The party which ought properly to pay the costs of these Appeals  and  writ  petitions  is  the  Uttar  Pradesh Madhyamik Shikshak Sangh. In view, however, of the fact that during the  course of  hearing of  these  Appeals  and  writ petitions, the  reserve pool teachers or a large majority of them including  the Appellants  and petitioners  have become members of  this Sangh  to direct the Sangh to pay the costs would be  to create  bad blood between the Sangh and some of its members. A fair order of costs would, therefore, be that so far  as the Appeals are concerned the parties should bear and pay  their own  costs throughout  and that so far as the writ petitions are concerned the parties should bear and pay their own costs thereof; and we order accordingly. H.S.K.                                 Petitions and Appeals                                                     allowed. 268