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Judgment
S.N. Srivastava, J.
This special appeal has been preferred canvassing the validity of order dated 1.10.2002 passed by learned Single Judge thereby recalling the order dated 15.12.99 attended with the direction not to proceed with the selection process for appointment of parttime teachers in the locus of the writ petitioners in pursuance of the advertisement dated 25th Sept. 2002 followed by direction to allow the petitioners (herein respondents 1 to 4) to continue in service during the current academic sessions.
The matrix of necessary facts leading to the filing of present special appeal is that respondents 1 to 4 were appointed by the appellant Committee of Management as parttime teachers for the academic sessions commencing from July, 1998 till the end of the sessions. On completion of the academic sessions, the services of the respondents 1 to 4 were dispensed with each by separate orders on the premises indicated in the impugned order dated 24.5.99 that the institution lacked resources from its own sources, at the same time observing that their services could be requisitioned in the next sessions 19992000 as the case may be. Aggrieved by the termination order, the respondents 1 to 4 preferred writ petition from which stems the present Special Appeal, praying for the following reliefs:
"(i) issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 18.5.99 issued by the Opposite party No.1 contained as annexures 1 to 4 to the writ petition.
(ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to give effect to the impugned order dated 18.5.99 and opposite parties further may be directed not to create any obstructions in the working of the petitioners on the post of lecturers in Dr. G.K. Jetly Inter College, Akbarpur, Ambedkar nagar.
(iii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the prescribed salary to the petitioners on the post of lecturer in the college and allow them to continue on the respective posts alongwith whole benefit of service."
The learned Single Judge who was seized of the writ petition aforestated passed the following interim order by means of the order dated 10th June, 1999.
"Heard learned counsel for the petitioner and the learned Standing counsel appearing on behalf of the opposite parties No.2 and 3.
Issue notice to the opposite party No.1.
List this petition in the week commencing 12th July 1999.
Till the next date of listing, operation and enforcement of the impugned order dated 10th May 1999 as contained in Annexures No.1 to 4 to the writ petition, shall remain in abeyance."
The Committee of Management which was arrayed as respondent No.1 in the said petition, entered appearance by filing stay vacation application which came to be heard and culminated in the order dated 15.12.99 thereby vacating the interim order dated 10.6.99. Subsequently, writ petitioners made application for recall of the order dated 15.12.99 and in consequence, learned Single Judge passed order dated 1.10.2002 thereby order dated 15.12.99 was recalled attended with certain directions. It is this order the validity of which has been mooted in the instant Special Appeal.
We have heard the learned counsel for the parties. We have also been taken through the impugned order dated 1.10.2002. Earlier to passing the impugned order, the learned Single Judge upon consideration of the facts that the respondents 1 to 4 in the writ petition were appointed for academic sessions commencing July 1998 and ending in May 99 and further that Section 7AA of the U.P. Intermediate Education Act envisages appointment of parttime teachers for specific period; that petitioners were not able to produce their respective appointment letters betokening their appointment on regular basis, made order thereby vacating the interim order dated 15.12.1999. It would transpire from the record, that during the pendency of the writ petition, Government Order dated 10th August 2001 came to be issued prescribing therein the service conditions of the parttime teachers of unaided institutions and pursuant thereto, on 5th July 2002, the Committee of Management advertised posts for appointment of parttime teachers in terms of the provisions contained in the aforestated Government Order. The record further reveals that on the representations preferred by the respondents 1 to 4, the District Inspector of Schools, Ambedkarnagar issued direction to the management not to make any appointment in pursuance of the Government order dated 10th August 2001 premised on the ground that the services of parttime teachers could not be terminated arbitrarily and the selection pursuant to the said Government order could not be made. Equipped with this order passed by the District Inspector of Schools, the Opp. Parties 1 to 4 filed application to recall the orderdated 15.12.99. The learned Single Judge considered the order contained in the letter of the District Inspector of Schools dated 5th July 2002, and the certificate issued by the Principal allowing the respondents to continue as part time teachers on the basis of the Government dated 10th August 2001, and converged to a finding that in view of Rules framed as contained in the G.O. dated 10th August 2001, fresh appointment without terminating the services of the Opp. Parties 1 to 4 would be an irregularity and consequently order vacating the interim order was recalled and the Committee of Management was directed not to proceed with selection attended with further direction to continue them in service during the current academic sessions.
Learned counsel for the appellant premised his submission arguing that though the order impugned in the appeal wears the appearance of an interim order, it has all the indicia of a judgment inasmuch as it amounts to final relief in the writ petition and by this reckoning, it was argued that the Special appeal as against the impugned order could be sustained. It was further argued that the writ petitioners were appointed for particular academic sessions indicated in the respective orders of appointment under Section 7AA of the U.P. Intermediate Education Act as parttime teachers and therefore, no right accrued to them to endure beyond the sessions for which they were appointed. In so far as Government order dated 10th August 2001 is concerned, it was argued that the said Government order is not attracted for application to inure to the benefits of the respondents 1 to 4 inasmuch as they were not appointed in terms of the provisions as embodied in the Government order in question. The learned Counsel further canvassed that the service conditions of parttime teachers as envisaged in the Government order in question have prospective effect and do not envisage any retrospective application, nor does the Government order in question contemplate any application to those persons appointed earlier and by this reckoning, it was argued, no right could legitimately be conferred retrospectively on any person. The learned Counsel further submitted that it ,is inferable from Section 7AA of the Act that appointment of part time teachers is subject to certain postulates i.e. adequacy of resources from the own sources of the Institution and filing of undertaking by the Management before the District Inspector of Schools. Per contra, learned counsel for the Opp. Parties 1 to 4 contended that they were appointed under Section 7AA and unless their services are terminated in accordance with the service conditions embodied in the Government order, they have every right to continue. It was further contended that the order of the District Inspector of Schools as contained in the letter supra was legitimately passed in vindication of the claims of the Opp. Parties and further that once they were appointed, their services would not suffer automatic termination. It was lastly contended that the impugned order has the complexion of an interim order against which no special appeal lie and on this score, the special appeal is liable to be dismissed.
The submissions made across the bar crystallize the following questions for determination.
(i) Whether Special appeal lies against the order impugned in the Special Appeal?
(ii) Whether the impugned order with the relief embodied therein amounts to judgment which could be granted to the writ petitioners at interim stage?
(iii) Whether Government order dated 10th August 2001 could be given retrospective effect in so far as respondents 1 to 4 are concerned and whether the said Government order and the order/letter of the District Inspector of Schools dated 5th July 2002 would confer any right upon the Opp. Parties aforestated?
(iv) Whether the Opp. Parties appointed for Sessions 19992000 could be invested with any right to continue beyond the period indicated in their respective appointment letters?
In re question No.1, before we make sedulous scrutiny of the submissions, it would be appropriate to scan the provisions of Rule 5 Chapter VIII of the Rules of the Court, which are excerpted below:
"5. Special appeal An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (1) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.)"
In the twilight of the submissions and the provisions of Chapter VIII Rule 5 of the Rules of the Court, the question that falls for determination is whether the impugned order has the complexion of a judgment. In the present case, the learned Single Judge in his solicitude to preserve the state of affairs as obtaining on the date of filing of the writ petition passed the order which was fraught with the consequences which could flow in the ultimate analysis in the event of decision leaning in favour of writ petitioners. It brooks no dispute that the writ petitioners having been appointed for the academic sessions 199899 had ceased to work after 18th May 1999 and the interim order granted on 10.6.99 had already been rendered inoperative by reason of the order of vacation dated 15.12.99. Again by the impugned order dated 1.10.2002. the writ petitioners were put back into service for imparting instructions in the Institution with direction to the Committee of Management not to proceed with the selection. The order passed on 1.10.2002 impugned herein does not have the indicia of an interim order, which allowed status quo to be maintained as obtaining immediately before passing of the impugned order of the learned Single Judge. Rather, it would appear that the learned Single Judge proceeded to make an order, which could only be passed at final hearing stage and therefore, it commends to us to hold that the learned Single Judge indiscreetly passed order which was fraught with the consequence of an order to be granted in the ultimate analysis and is a judgment. Therefore, in my firm view, the special appeal is sustainable. The decisions supporting our view are dime a dozen and we do not think it necessary to go over the decisions and confine ourselves to the observation that for the view we are taking we derive considerable support from these decisions which are decisions rendered by this Court in Indian Telephone Industries v. The Director (P.O.T), 2000(1) ESC 695, Vinod Kumar Singh v. Director. A.A.U. Sewa Nideshak U.P., 1998 All LJ 1741, and State of U.P.v. Kumari Renu Tiwari. (1993) 2 UPLBEC 1325 in which the Court was seized of similar question whether the orders passed by the learned Single Judge had the trapping of a judgment and after analytical analysis the Court converged to the view as we are taking in the instant appeal.
The next question that begs consideration is whether the learned Single Judge was justified in directing to maintain status quo ante as on 18.5.1999 by means of order veneered as interim order. In the conspectus of the facts on record and in view of what has been discussed above, we are of the firm view that the relief as contained in the impugned order dated 1.10.2002 thereby directing that the writ petitioners would continue to be in service during the current academic sessions and restraining the appellant Management Committee from making any selection on the posts of parttime teachers held by the writ petitioners in the academic sessions 199899 could not be granted at the interim stage qua the fact that as a necessary consequence of order vacating the earlier interim order, the writ petitioners had ceased to function in the Institution as Parttime teachers. By this reckoning, the learned single Judge fell into error in passing the impugned order which was fraught with the consequence of a judgment which could only be passed at the final hearing stage. This view of ours receives countenance from the decision of the Apex Court in U.P. Junior Doctors Action Committee v. B. Sheetal Nandwani. 1992 Supp. (1) SCC 680. The para 8 of the said decision being germane to the issue in question is excerpted below:
''''It is a well known rule of practice and procedure that at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted. The writ petitioners wanted admission into post graduate course as the main relief in the writ petition. To have it granted at the threshold creates a lot of difficulties. In a case where the petitioner ultimately loses in a case of this type a very embarrassing situation crops U.P. If he has by then read for two to three years, there is a claim of equity raised on the plea that one cannot reverse the course of time. In a case of this type equities should not be claimed or granted. Taking an overall picture of the matter we are of the view that unless there is any special reason to be indicated in clear terms in an interlocutory order as a rule no provisional admission should be granted and more so into technical courses."
The Apex Court followed the ratiocination of the said decision in National Power Corporation v. Corporate Executive. 1993 JT 644. Therefore, in the above perspective, we converge to hold that no such order could be passed at the interim stage and such an order could only be passed in the final analysis and at the final stage.
The third question that emerges for consideration is whether the Government order dated 10th August 2001 could be given retrospective effect in so far as respondents 1 to 4 are concerned and whether the said Government order and the order/letter of the District Inspector of Schools dated 5th July 2002 would confer any right upon the Opp. Parties aforestated to claim the relief as prayed for. For effective adjudication of the issue, it is essential to get hang of the necessary facts. Indisputably, the writ petitioners were appointed for the sessions 199899 till the end of that sesson and their services were terminated by means of letterdated 18.5.99, which speit out financial crunch from its own sources. It was however quipped in the order terminating the services that the services of the writ petitioners could be requisitioned considering the requirements of the Institution. It brooks no dispute that the institution in which the petitioners were appointed as parttime lecturers to impart instructions in intermediate classes is an unaided Intermediate College the necessary consequence of which is that it was college, which was required to make payment of honorarium from its own resources. Under the Intermediate Education Act, the appointing authority of teacher is Committee of Management and being unaided School, the Committee of Management is also enjoined to make payment of the honorarium from its own resources. Section 7AA (2) of the Intermediate Education Act makes it amply clear that the Committee of Management has to furnish such security in cash or by way of Bank guarantee to the Inspector before permission is granted by Inspector to open new section in the existing class or the Board may with the prior approval of the State Government recognize an institution in any new subject or group of subjects or for a higher class. Section 7AA does not prescribe any period for which parttime teacher could be appointed and it is the tenor of the appointment letter, which would be decisive of the terms and conditions of the service. In the instant case, as indicated from the impugned order the appointment was made for the specific period i.e. for the academic sessions 199899 and the Committee of Management considering the financial crunch stemming from the depleted resources discontinued the services of the writ petitioners at the end of the sessions studded with the observation that in case of requirements of the Institution for the next sessions and having regard to the adequacy of resources of the Institution, the services of the writ petitioners could be requisitioned. There was no rule or Government order or the circular forthcoming manifesting the terms and conditions of service of parttime teachers in the academic sessions 199899. The service condition of parttime teachers came to be prescribed for the first time by means of Government order dated 10.8.2001 and it also envisaged for the first time the mode of appointment i.e. after due publication in the news paper. The discernible aspect between the appointments made prior to coming into force of the Government order dated 10.8.2001 and the appointments made after the aforestated Government order is too obvious to be ignored from the contents of the Gvoernment order itself. It would transpire from the contents of the Government order that it injected for the first time the requirement of passing an order terminating the services of such part time teachers. In the said Government order, the termination of service has been hedged in with certain condition. It is thus obvious that no such protection was forthcoming to such parttime teachers earlier. The second discernible difference appears to be that under the new Government order, minimum wages have been made applicable to parttime teachers while earlier, Section 7AA(5) had no such provision and envisaged only the honorarium for part time services in the discretion of the Management. Thirdly, by the Government order dated 10.8.2001, the Government has provided a complete scheme for departmental enquiry with right to appeal before the District Inspector of Schools. As stated supra, the services of the petitioner had come to be terminated on 18.5.1999 and stay order obtained by them had already stood vacated on 15.12.1999 and in the circumstances on the date on which the Government order dated 10.8.2001 came into force, the petitioners were not in service of the Institution as part time teachers and by this reckoning, the Government order which has been pressed into service by the respondents 1 to 4 cannot be invoked to their benefits nor will it invest the respondents with any right to claim appointment on that basis. Moreover, it being a species of subordinate legislation, cannot be made operative with retrospective effect and the learned Single Judge fell into error in making order impugned herein relying upon the rule as contained in the Government order dated 10.8.2001 inasmuch it cannot be imported for application to the respondents 1 to 4 with retrospective effect. The law is well settled that every legislation, rules thereupon or any administrative instructions issued thereon can only be prospective but never retrospective without specifically being said that it would have retrospective effect. In Haisbury''s Laws of England (4th Ednr, Vol.44), paragraph 921 being germane to the point at issue herein is excerpted below:
"921. Meaning of ''retrospective: It has been said that ''retrospective'' is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing."
In the instant case, the Government order does not specifically envisage retrospective operation. It transpires from the impugned order that the learned Single Judge was swayed by the letter of the District Inspector of Schools in holding that the respondents 1 to 4 were allowed to continue on the basis of Government order dated 10.8.2001 and passed the impugned order without regard being had to the fact that the services of the writ petitioners had come to an end on 18.5.1999 and the Government order referred to by the District Inspector of Schools was not fraught with the consequence of having retrospective effect. In the circumstances, we are of the view that the Committee of Management rightly publicized the post by means of advertisement dated 25th Sept 2002 for making fresh appointments of Part time teachers consistent with the provisions of the new rules as embodied in the Government order dated 10.8.2001. In taking the above view, we are supported by the decisions of the Apex Court rendered in AIR 1961 SC 420, AIR 1970 SC 385, AIR 1972 SC 2427 and AIR 1979 Vol II SCC 146. For the sake of brevity, we do not propose to dilate upon minute details of these decisions save saying that we derive considerable support from these decisions. We are therefore of the view that since in view of the interim order the writ petitioners have already run the whole hog till the end of the sessions, the interim order impugned herein to that extent has already exhausted itself and the academic sessions have already to come to an end, the writ petitioners have no right to continue taking benefit flowing from the Government order dated 10.8.2001. It would however be open to the writ petitioners to put forth their candidature in response to the advertisement made for appointment of part time teachers under the new rule and they would be entitled to preference to the other candidates in case they also get quality points at par with others in accordance with Appendix D to the Intermediate Education Act and fulfil all the requisite conditions under the new rule.
As a result of foregoing discussion, the Special Appeal succeeds and is allowed subject to the above observations and the order impugned herein dated 1.10.2002 passed by the learned Single Judge is quashed accordingly. The parties shall bear their respective costs.
(Special Appeal allowed)