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Judgment
K.M. JOSEPH, C.J. (ORAL)
These two Appeals arise from the common judgment rendered in Writ Petition No. 2194 of 2017 (S/S). Appeal No. 530 of 2018 has been lodged by
the 5th respondent Committee of Management of Mangla Devi Inter College (hereinafter referred to as the College); whereas the other Appeal has
been filed by respondent no. 6 in the writ petition. The writ petition was filed claiming the relief of quashing the order dated 17.07.2017 passed by the
second respondent Additional Director School Education. Further relief sought was to consider and promote the writ petitioner to the post of Lecturer
(Sociology) against the vacancy available in promotion quota, which is lying vacant from 01.04.2015. In the College, there are six sanctioned posts of
lecturers. According to the writ petitioner, three posts out of the said posts are to be filled up by promotion and rest three posts are to be filled up by
direct recruitment. We are concerned with the post of Lecturer (Sociology). According to the writ petitioner, this post is earmarked to be filled up by
promotion quota. One Rishi Pal Sharma, who was earlier serving as a Lecturer (Sociology) retired on 31.03.2015. It is, accordingly, that the vacancy
arose in the post of Lecturer (Sociology) on 01.04.2015. The bone of contention between the parties arises out of the said vacancy. According to the
writ petitioner, in accordance with the Regulations, which we shall refer to, he has a right to be promoted. However, on 01.04.2015, undisputedly, the
writ petitioner was not possessed of the requisite qualification in that. He did not have M.A. in Sociology. He acquired the qualification of M.A. in
Sociology as a private student and passed the examination on 17.11.2015. Instead of promoting him, the appellant in Special Appeal No. 493 of 2018
was brought in by way of transfer from the 7th respondent College. The present Writ Petition is the sequel to an earlier Writ Petition, which was also
filed by the writ petitioner; the litigation culminated in judgment of the Division Bench in Special Appeals Nos. 362 and 364 of 2017, which, in fact,
were filed by the present appellants. This Court noted that Regulation 49, under which the College decided to bring in the appellant in Special Appeal
No. 493 of 2018 by way of transfer, required as a sine qua non the element that the post must be reserved for direct recruitment. The Court also took
note of the fact that there are two aspects, which cast a cloud on the transfer of a teacher on the basis that it is for direct recruitment quota. Firstly,
this Court noted the existence of a Chart prepared by the College itself. Secondly, the Court also noted that the previous incumbent, who occupied the
post of Lecturer (Sociology) was also a promotee. The Court further noted the fact that the amendment has been carried in Regulation 6.
Consequently, the Appeals were disposed of by directing the Authorities to redo the matter with respect to the question as to whether the vacancy fell
in the direct recruitment quota or promotion quota. It was left open to the Authority to consider the effect of the Regulations on the rights of the
parties. This was to be done after giving opportunity to the parties. It is consequent upon the same that the present impugned order has been passed.
In the impugned order, the Authority has proceeded, no doubt, to record the statement of the Management that the vacancy in question is one, which
arises in the promotion quota. Further, it has reiterated its earlier stand, in short, that the transfer purported to be made of the appellant in Special
Appeal No. 493 of 2018 invoking Regulation 49 has been upheld. In arriving at the said conclusion, the Authority has entered a finding that the writ
petitioner was not possessed of the requisite qualification as on the date of the occurrence of the vacancy.
The learned Single Judge, by the impugned judgment, has allowed the writ petition noting the amendment, which has been carried out in Regulation
6, and found that though the writ petitioner may not have been qualified at the time of occurrence of vacancy, he became qualified subsequently, as
we have noted, and in view of the amendment, the case of the writ petitioner found favour with the learned Single Judge.
We heard Mr. B.D. Upadhyaya, learned Senior Counsel along with Mr. Ajay Singh Bisht, learned counsel on behalf of the appellant, whom we
shall refer as a transferee in SPA No. 493 of 2018 and also Mr. C.K. Sharma, learned Counsel for the appellant / Management in Special Appeal No.
530 of 2018. Besides, we also heard Mr. Alok Mahra, learned counsel for the writ petitioner and Mr. Vikas Pandey, learned Standing Counsel for the
State of Uttarakhand.
Mr. B.D. Upadhyaya, learned Senior Counsel appearing on behalf of the transferee drew our attention to Section 36 (2) of the Uttarakhand School
Education Act, 2006 (hereinafter, referred to as the “Actâ€). It reads as follows :-
“36. Procedure for selection of teachers and heads of institutions-
(1)…………………
(2) Every post of head of Institution or teacher of an institution shall except to the extent prescribed for being filled by promotion, be filled by direct
recruitments after intimation of the vacancy to the District Education Officer and obtaining approval of the District Education Officer for advertising
and advertisement of the vacancy containing such particulars as may be prescribed, in at least to daily newspapers having wide circulation in the
State.â€
Mr. B.D. Upadhyaya, learned Senior Counsel would, therefore, contend that under the Law made by the Legislature, except where it is otherwise
prescribed, appointment to various vacancies is to be done by way of direct recruitment. Next, he drew out attention to Regulation 5. English
translation of the same reads as follows:-
“5 (1). Every vacancy in the post of teacher in a recognized institution shall, except as otherwise provided in clause (2) be filled up by direct
recruitment.
5 (2) . Fifty percent of the total number of sanctioned posts in Lecturer’s grade shall only be filled by promotion from amongst the teachers
working in the institution and promotions shall be made subject to the availability and eligibility of such teacher for promotion on the date of vacancy.â€
He would contend that the learned Single Judge has not considered Regulation 5, the same stands as it is and no amendment has been made in
Regulation 5. Therefore, taking Regulation 5 as it is, unless and until, the person in the feeder category is qualified as on the date of occurrence of the
vacancy, he / she cannot claim any right to be promoted. In this case, the writ petitioner was admittedly not qualified as on 01.04.2015 when the
vacancy arose in the post of Lecturer (Sociology). Therefore, the writ petitioner cannot stake claim, at all, for promotion as he has done. Next, he
would point out that faced with the situation, where there is no qualified teacher to be promoted as provided in Regulation 5, Management on
04.04.2015, took steps to bring in the transferee from another School, which is permitted in Regulation 49. This brings us to Regulation 49, which reads
as follows :-
“If any teacher or an non teaching employee of an institution other then a minority institution who wants transfer to the other institution. An
application addressed to Additional Director Education of the Division will be presented. In case of teacher a non teaching employee to the Principal
and in case of Head Master or Head Mistress to the Manager. The application must contained name, place and district where the transfer is sought
the restriction shall be that the transfer will be permissible only to an institution from a aided institution or from one unaided institution to another
unaided institution.
It is further restricted that the transfer shall only be permissible to the post of direct recruitment.â€
He would submit that in view of absence of qualified teachers, the Management had no choice and, therefore, it is that the steps were rightly taken.
At that time, the amendment, which came into being late0r on, could not be contemplated. The amendment which came later on 10.12.2015 to
Regulation 6 could not possibly have been envisaged by the Management. It is, accordingly, that the steps were taken. Thereafter, he drew our
attention to Regulation 6. Regulation 6, insofar as it is material for us at this juncture after the amendment, reads as follows :-
“6. Where any vacancy in the Lecturers Grade as determined as Regulation 5 is to be filled by promotion, all teachers working in L.T. Grade
having a minimum of five years of continuous substantive service to their credit on the dated of occurrence of vacancy shall be considered for
promotion by the Committee of Management without there having to apply for the same, provided that they possesss prescribed minimum qualification
for teaching the subject in which the teacher in the Lecturers Grade is required.
But for any reason on the date of occurrence of vacancy no candidate having the requisite qualification is available then the Committee of
Management may pass a resolution for the promotion of such teacher who possess requisite qualification on the first date of academic session for
such post.â€
It was pursuant to the amendment that the latter part, which is underlined, was inserted.
He would submit that the amendment, which was engrafted in Regulation 6 on 10.12.2015, is clearly prospective. He would further submit that even
on the terms of the proviso, which was added by the amendment, what it contemplates is that the person can be considered for promotion when he
becomes qualified as on the first day of the academic year. ‘Academic year’ is defined as beginning with 1st April and ending with 31st March
of the next succeeding year. In this case, he would point out that the writ petitioner does not fulfill the requirement of the amended part as he was not
qualified on 1st April, 2015. Therefore, the steps, which were taken by the Management, were strictly in accordance with law. He would further point
out what the Management has done in this case, is supported by the judgments of the Allahabad High Court. In this regard, he drew out attention to
two judgments of the Allahabad High Court. Firstly, he drew our attention to the judgment of the Allahabad High Court in the case of Mumtaz Ahmad
Vs. Deputy Director of Education, Allahabad Region, Allahabad reported in [(2000) 1 UPLBEC 735]. Secondly, he drew our attention to a Bench
decision of the Allahabad High Court in the case of Committee of Management of Captain Ummed Singh Uchchatar Madhyamik Vidyalaya Vs.
District Inspector of Schools reported in [1990] 1AWC 171. The substance of the argument in this regard is that if there is nobody available as on the
date when the vacancy occurs to be promoted, it will be open to the Management to resort to direct recruitment and in this case, since a person was
brought in by way of transfer on the satisfaction that the vacancy can be filled up by direct recruitment, there is nothing illegal done by the
Management. It is the further contention also of Mr. B.D. Upadhyaya, learned Senior Counsel for the appellant that under Regulation 5, while a quota
is prescribed, the quota is qua the sanctioned posts. The quota, in other words, need not be worked out with reference to subjects. Another argument,
which is raised by the learned counsel Senior Counsel for the transferee teacher is based on Regulation 20. Regulation 20 reads as follows:
“20. Where the Committee of Management has failed to advertise any sanctioned post which has fallen vacant in accordance with the regulations
contained in this Chapter within a period of three months from the date of occurrence of the vacancy, such post shall be deemed to have been
surrendered and shall not be filled up unless its creation is sanctioned afresh by the Director.â€
And he would, therefore, contend that there can be no case for the petitioner.
Mr. C.K. Sharma, learned counsel for the College Management would also harp upon Section 36 (2) of the Act as was done by Mr. B.D.
Upadhyaya, learned Senior Counsel for the transferee teacher. Equally, he would rely on Regulation 5 (2) and contend that the quota need not be
worked out qua the subjects. In fact, he would submit that along with the vacancy of Lecturer (Sociology), which arose on 01.04.2015, there were two
other vacancies and there is a ban on appointment. In short, his argument appears to be that filling up the vacancy of Lecturer (Sociology) by way of
direct recruitment will not militate against the Management filling up the said vacancy by way of promotion and, thereby, the equilibrium contemplated
between the promotee and the direct recruit is being maintained in terms of quota as provided under Regulation 5.
He would also reiterate that at the time, when the Management took steps under Regulation 49, they could not be clothed with prescience to
foresee that the amendment in Regulation 6 will come into being and the writ petitioner would become qualified in future. They took the matter as it
stood as on 01.04.2015 and they took steps, which they were authorized to take, and it is the case of the Management that if there is no one qualified
to be promoted at the time of occurrence of the vacancy, there is nothing illegal in the Management resorting to direct recruitment / transfer.
Per contra, Mr. Vikas Pandey, learned Standing Counsel would submit that Regulation 5 must be read with Regulation 6. So read, the law must be
that when a person becomes qualified to be promoted, he can be considered for promotion even if vacancy may have been prior to the date of the
amendment. He would also point out in fact Regulation 9. He would also submit that Regulations of 2009 have been made by the State of
Uttarakhand, which is similar to the regulations made in the erstwhile State of U.P.
Shri Alok Mahra, learned counsel for the writ petitioner would submit that under the Regulation 6 clearly the petitioner had a right to be considered
for promotion and he would submit that though word used is “may†in the proviso, namely, the proviso contemplates that the resolution may be
passed, reading Regulations 5 and 6 together, to fulfill the requirement of the quota, “may†must be read as “shallâ€. He would further submit
that as far as the petitioner not being qualified as on the first day of the academic year 2015-16 is concerned, since he acquired the qualification in
November, 2015 i.e. on 17.11.2015, he must be treated as having been qualified on 1st April, 2016, on which date, a new academic year begins, which
will end only on 31st March, 2017. Therefore, it is obligatory on the part of the Management to consider him for promotion to the post with effect from
the date when he became qualified.
Mr. C.K. Sharma, learned counsel for the Management, in reply, pointed out that he has come-by a letter, which is addressed by an Officer, in
which, he intends to indicate that in a situation, where there is no qualified hands to be promoted, direct recruitment can be resorted to. In fact, that is
not a part of record and it appears to be a letter.
We have already noticed the facts. In the earlier round, this Court had set aside the order and directed the matter to be considered by the
Authority in regard to whether the vacancy which was filled up by way of transfer under Regulation 49 was falling within the quota of direct
recruitment or promotion. In the order, there is no finding as such, but instead what has been stated by the Management has been recorded. What is
stated by the Management is that the vacancy, which arose on 01.04.2015, in the post of Lecturer (Sociology) is one, which falls in the promotion
quota. Therefore, we must proceed on the basis that the vacancy, which arose on 1.04.2015, indeed was to be filled up by promotion. We must further
proceed on the basis that the writ petitioner was not qualified to be promoted on the said date. Still further, we can safely proceed on the basis that
writ petitioner became qualified on 17.11.2015. Before the petitioner became qualified, the Management, undoubtedly, commenced proceedings to
transfer the transferee in this case, who was working in other school and the matter did not culminate in the actual transfer till December, 2016. It is
after the proceedings were so taken to transfer the transferee and after the writ petitioner became qualified that the supervening event took place in
the form of amendment in Regulation 6.
We would have to consider, whether the amendment is prospective or retrospective. If the amendment is retrospective, what is the impact of the
same as regards the legal right of the writ petitioner, or rather does it create a legal right; what is the effect of the steps taken by the Management to
invoke Regulation 49? Do the Regulations contemplate converting a vacancy, which is to be filled up by way of promotion, to one, which can be filled
up by direct recruitment?
We will first consider as to what is the effect of Section 36(2) of the Act, on which the appellants have laid stress. Section 36, undoubtedly,
declares that the vacancies are to be filled up by direct recruitment, unless it is otherwise provided to be filled up by promotion under the Regulations.
It is here that Regulation 5 (2) assumes significance. Regulation 5 (2), undoubtedly, provides that 50% of the total sanctioned posts are to be filled up
by way of promotion from trained graduate teachers in the Institution. It is further provided that promotion is, no doubt, subject to availability of vacant
posts and thirdly, it depends upon eligibility of the person working in the feeder category with specific reference to the date on which the vacancy
occurs. We are of the view that the stand of the respondents in the Appeals that the Regulation 5 cannot be read in isolation is correct. What
Regulation 5 (2), in our view, inter alia, provides is that in the vacancy, which is to be filled up out of 50% quota, it can be done only subject to posts
being vacant and furthermore that the person must be eligible as on the date of occurrence of the vacancy. Unless Regulation 5 (2) is read with
Regulation 6, we would think that the intention of the law giver cannot be gleaned. Regulation 6, which is the next Regulation after Regulation 5,
obviously operates the provision contained in Regulation 5, in that, it provides that when the vacancy arises, which is determined under Regulation 5,
which is to be filled up by way of promotion, all the teachers, working in L.T. grade, having a minimum five years’ continuous substantive service
to their credit as on the date of occurrence of the vacancies, are to be considered by the Committee. The candidates need not apply for the same. It
is, however, headed in with the limitation that the candidate must possess the minimum prescribed qualification for teaching in the subject in which
Teacher of Lecturer grade is required. It is, therefore, clear that Regulation is not a stand-alone provision, and it assumes meaning and purpose only
when it is read in conjunction with Regulation 6. Regulation 6, it may be noted, does not provide as such that the candidate must possess the
prescribed qualification on the date of occurrence of the vacancy. No doubt, there is no reference to minimum five years’ continuous service as
on the date of the occurrence of the vacancy but here, we must read Regulation 5 (2) with Regulation 6 and certainly what must be understood is that
the candidate must possess the qualification as on the date of occurrence of the vacancy. In fact, the law-giver also understood it to be so, as having
regard to what is added by the amendment on 10.11.2015, drawing sustenance from Regulation 5 (2) and the earlier part of Regulation 6, it is added
that if no candidate is available possessing minimum qualification as on the date of the vacancy on the posts being left vacant, in that case, the
Management can resolve to promote the teachers who obtained the necessary qualification as on the first day of the academic year, in which, the
resolution is passed.
We would have to consider, whether the amendment engrafted in Regulation 6 is prospective or whether it can be availed of by a candidate, who
though was not qualified as on the date of occurrence of the vacancy occurring prior to the amendment became qualified afterwards or is the
amendment intended to apply only to vacancy, which arises after the amendment. Since much of the controversy revolves around this, we would think
that we should deal with this aspect first.
Mr. B.D. Upadhyaya, learned Senior Counsel drew our attention to a judgment of the Hon’ble Apex Court in the case of Commissioner of
Income Tax (Central)-I, New Delhi Vs. Vatika Township Private Limited reported in (2015) 1 SCC 1. Therein, a Constitution Bench was considering
the question as to whether the proviso, which is added to Section 113 of the Income Tax Act w.e.f. 1.06.2002, was to be interpreted as prospective or
clarificatory or curative or retrospective. Section 113 of the Income Tax Act reads as follows :-
“113. Tax in the case of block assessment of search cases. - The total undisclosed income of the block period, determined under section 158BC,
shall be chargeable to tax at the rate of sixty per cent.â€
The proviso, which was added, reads as follows :-
“Provided that the tax chargeable under this Section shall be increased by a surcharge, if any, levied by any Central Act and applicable in the
assessment year relevant to the previous year in which the search is initiated under Section 132 or the requisition is made under Section 132-A.â€
The Hon’ble Apex Court in the case of CIT Vs. Suresh N. Gupta reported in (2008) 4 SCC 362, took the view that the proviso was
clarificatory in nature and, therefore, it operated retrospectively. It was in the context of the said judgment that apparently the Constitution Bench
came to be constituted to adjudge the correctness of the said view. The issue relating to retrospectivity was discussed, we notice, in paragraphs 28
and 29 of the said judgment to which our attention was drawn by the appellant, which reads as under:
“28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation
is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law
passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not
tomorrow’s backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange
his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex
prospicit non respicit : law looks forward not backward. As was observed in Phillips vs. Eyre[3], a retrospective legislation is contrary to the general
principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to
change the character of past transactions carried on upon the faith of the then existing law.
The obvious basis of the principle against retrospectivity is the principle of 'fairness’, which must be the basis of every legal rule as was
observed in the decision reported in L’Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd[4]. Thus, legislations which
modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the
legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a
former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal
position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to
few judgments containing this dicta, a little later.
But we would also think that it would be profitable if we refer to what is stated in paragraphs 30 and 31. The same reads as under :-
“30. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective
construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on
the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a
legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural
provisions as retrospective. In Government of India & Ors. v. Indian Tobacco Association, (2005) 7 SCC 396, the doctrine of fairness was held to be
relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to
hold that a statute was retrospective in nature, was applied in the case of Vijay v. State of Maharashtra &Â Â Â Â Â Â Â Â Â Â Â Ors. (2006) 6
SCC 289. It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held
to be retrospective in nature. However, we are (sic not) confronted with any such situation here.
In such cases, retrospectivity is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the
presumption attaches towards prospectivity. In the instant case, the proviso added to Section 113 of the Act is not beneficial to the assessee. On the
contrary, it is a provision which is onerous to the assessee. Therefore, in a case like this, we have to proceed with the normal rule of presumption
against retrospective operation. Thus, the rule against retrospective operation is a fundamental rule of law that no statute shall be construed to have a
retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.
Dogmatically framed, the rule is no more than a presumption, and thus could be displaced by outweighing factors.â€
The Court also proceeded to discuss declaratory statute as contained in the discussion in ‘Principle of Statutory Interpretation’ by Justice
G.P. Singh in Paragraph 32, which we need not refer to.
Mr. B.D. Upadhyaya, the learned Senior Counsel would contend that the amendment to Regulation 6 cannot apply to a vacancy, which arose prior
to the amendment. It is, undoubtedly, true that ordinarily a law is presumed to apply in the future. Law is prospective unless and until by express words
and necessary interpretation, it has retrospective operation. Laws are of various kinds. While the general proposition may hold good, where the law
may affect the existing accrued legal rights, question may arise as to whether the law is indeed meant to apply also in the past for the reason that the
amendment merely explains the law, which may have come under the shadow of ambiguity or doubt. In fact, law, which is explanatory in nature,
would also operate in the past. Law, which is merely clarificatory of what the law always was would also operate in the past. In the decision, which is
relied on by the learned Senior Counsel, the law operating in the past would impose, undoubtedly, a burden on the assessee, inasmuch as, the
surcharge, which would be imposed by the Finance Act for each years, would attach itself to the assessment made for the block years under the
provision contained in Section 113 of the Income Tax Act. The rate of tax applicable for the block year is fixed at 60% under Section 113 of the
Income Tax Act. If the proviso were to operate retrospectively, it would indeed affect the assessee and intrude into the vested right, which he had. It
is to be noted that it is not a case, where the assessee gets any benefit by the retrospective operation of the proviso. It was, in that sense, not a
beneficial statute. Furthermore, we notice, in fact, the Central Board for Direct Taxes issued a Circular making it very clear that the proviso to Section
113 of the Income Tax Act was to have only prospective operation. We have noted in Paragraph Nos. 30 and 31 that the Hon’ble Apex Court
has indeed kept in its mind situations, where retrospectivity could be attached when it benefits a person as contradistinguished from provision, which
imposed a burden or a liability.
Here, in the context of the provision by the amendment, we would have to examine, whether the amendment, which has been engrafted in
Regulation 6 does cast a burden on anyone. It does not adversely affect the right available to anyone. The teacher, who was not qualified, is enabled
to acquire the qualification and to aspire for promotion. From the point of view of the Management of the Institution and, therefore, from the point of
view of the student community also, the proviso would provide a remedy to remove the impasse, which exists in the Institution as a result of operation
of Regulation 5 read with Regulation 6, namely that though a vacancy may arise in the promotion quota, it can only be filled up by promoting the
person as on the date of occurrence of the vacancy. The situation, therefore, which prevailed prior to the date of the amendment, was that unless a
person existed, who was qualified to be promoted when the vacancy occurred, no promotion could take place. If the promotion could not take place,
the quota of 50%, which is provided in the Regulation, could also not be achieved. The academic interest of the student community would also be
affected. It is in the light of this realization, apparently, that Regulation 6 (2) came to be amended. If the amendment is made applicable to the
vacancy, which occurred prior to the amendment, on the one hand, it would provide for remedying a situation, which was in the mind of the law-giver,
and, at the same time, as we have noted, it would not adversely affect the right of any person.
We are not oblivious to the words “on the post being left vacant†in the amended provision (Regulation 6(2)). It could be argued that when
Regulation 5 (2) and also the main part of Regulation 6 (1) contemplates appointment by way of promotion of a person, who is qualified as on the date
of occurrence of the vacancy and the amendment is brought in to cater to the said contingency so that the interest of the students and also the interest
of justice be subserved and also to sub-serve the best interest of the employees waiting in the queue for being promoted, who were not promoted
being not qualified on the date when the vacancy occurred but become subsequently qualified, there may not have been any need to add the words
“on the post being left vacantâ€. Could it be said that the words “on the post being left vacant†gives an indication of the law-giver that the
vacancy, which remained unsupplied at the time when it occurred on account of there being none who was qualified, should remain vacant after the
acquisition of the qualification by the concerned employee and that the amended proviso will not apply if the vacancy is already filled up by other
modes? This brings us to the question, whether in a vacancy, which is left to be filled up by way of promotion under Regulations 5 and 6, any other
mode is contemplated in the Regulations. We are not shown any other mode, by which the vacancy arising under the promotion quota can be filled up
by way of direct recruitment or by any other mode.
We may usefully advert to the following discussions in the ‘Principles of Statutory Interpretation’ by G.P. Singh under the heading
“Statutes conferring prospective benefit on antecedent facts: Remedial statutesâ€. We may, interestingly, refer to the following discussion arising
out of the judgment, which, in fact, has been adverted to in many judgments of the Hon’ble Apex Court also, namely, R. Vs. Mary Whitechapel
(St.) (Inhabitants) (1848) 12 QB 120:
“In R. v. Mary Whitechapel (St.) (Inhabitants), the question related to the construction of section 2 of the poor Removal Act, 1846, which provided
that ‘no woman residing in any parish with her husband at the time of his death shall be removed from such parish, for twelve calendar months next
after his death, if she so long continuous a widow’. In that case it was sought to remove a widow within twelve months from the date of the death
of her husband who had died prior to the Act came into force; and it was argued that to apply the Act to such a case was to construe it
retrospectively. In rejecting the contention, LORD DENMAN, C.J. observed: “It was said that the operation of the statute was confined to
persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this
construction; but we have shown before that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not
properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passingâ€. In this case the
words ‘shall be removed’ were thus found appropriate to cover all cases of future removals irrespective of whether the husband had died prior
to the Act but they were not found wide enough to nullify completed removals prior to the Act, even if the widow was removed within twelve months
of her husband’s death.
In R.v. Birwistle, etc. Justices, which arose under the Married Woman (Maintenance in Case of Desertion) Act, 1886, the Act was held to apply,
without express words, to desertions which took place prior to the Act. It was said : “It was intended to cure an existing evil and to afford to
married woman a remedy for desertion, whether such desertion took place before the passing of the Act or not.â€
In R. v. Lane, section 4 of the Summary Jurisdiction (Married Women) Act, 1895, which entitled a woman ‘whose husband shall have been guilty
of persistent cruelty to her’ to apply for an order under the Act, was held to apply even to acts of cruelty committed before the passing of the Act.
In Weldon v. Winslow, construing a statutory provision to the effect â€" ‘a married woman shall be capable of suing and being sued either in
contract or in tort, or otherwise, in all respects as if she were a Femme sole and her husband need not be joined with her as plaintiff or defendant or
be made a party to any action or other legal proceeding brought by or taken against her and any damages or costs recovered by her in any such action
or proceeding shall be her separate property,’ it w as held that a married woman was competent to file in her own name an action for tort
although the cause of action arose before the statute came into operation. But, although opinion was not uniform, section 2 (4) of the Hindu
Women’s Right to Separate Residence and Maintenance Act, 1946, which entitled a Hindu married woman to claim separate residence and
maintenance from her husband ‘if he marries again’ was generally held to apply to cases where the husband married against after the date on
which the Act came in to force.
When rate of interest payable upon compensation for ‘land acquired’ by a municipal council was raised by an Act from four to six per cent, it
was held by the Privy Council that benefit of increase of interest from the date of operation of the Act was available also in respect of land acquired
before the act and that such a construction of the Act did not give rise to any question of retrospective operation of the Act. The decision may have
been different if in the place of the word ‘acquired’ some such words as ‘to be acquired’ or ‘hereafter acquired’ might have been
used in the Act.
Protection from eviction conferred by an Act upon a tenant who ‘has actually built’ a permanent structure on the land of the tenancy was held
to cover even such cases where the structure was built by the tenant before the coming into force of the Act.â€
We may, no doubt, refer to the judgment in the case of Mt. Sukhribai Vs. Pohkalsing reported in AIR (37) 1950 Nagpur 33, where the Bench of
the said Court speaking through Justice Hidayatullah, as His Lordship then was, was dealing with the question as to whether the Hindu Married
Women’s Right to Separate Residence and Maintenance Act (1946) is a declaratory statute and it is remedial and it is to be interpreted
prospectively or retrospectively. The Bench proceeded to hold inter alia as follows :
“(18) We are satisfied that the Act as a whole cannot be called a ‘Declaratory Act’ in the strict sense of the term. It is obvious that before
this Act was passed neithr Hindu custom (See Manu, chap. IXD, 81-83) nor statute law, nor dicta of Judges allowed a wife to live separate from hr
husband if he married a second time. The Act now virtually allows judicial eparation between husband and wife if the wife resents a second marriage.
Since this law never existed before, c. (4) of S. 2 of the Act cannot be called ‘declaratory’ whatever one may say of the other clauses. This
clause supplies a want and is therefore remedial.
(19) Even a Declaratory Act can be construed prospectively, provided the words bear a clear meaning giving it prospective operation.
(20) The cardinal principle of construction is that all statutes affecting rights must be construed prospectively and this Act does affect rights and not
procedure. As was observed by Lopes L.J. in Bourke v. Nutt, (1894) 1. Q.B. 725: (63 L.J. Q.B. 497):
“It is a well recognized principle in the construction of statutes that they operate only on cases and facts, which come into existence after the
statute was passed unless a retrospective effect is clearly intended and that this principle of construction is especially applicable when the enactment
to which a retrospective effect is sought to be given would prejudicially affected the vested right or the legal character of past transactions.â€
(21) In our opinion, it is not necessary to pronounce our opinion upon all the clauses in S. 2. Even if some clauses may be retrospective “a statute is
not to be construed to have a greater retrospective operation than its language renders necessary†(Maxwell, Edn. 9, p. 222).
The learned author summarizes the law when he states that
“Even in construing a section which is to a certain extent retrospective, the maxim ought to be borne in mind as applicable whenever the line is
reached at which the words of the section cease to be plainâ€. (ibid)
By ‘the maxim’ the learned author refers to “Nova constitutio futuris formam imponers debet, non pratertis.â€
Nor is a statute retrospective simply because a part of the requisites for its action is drawn from a moment of time prior to its passing. Thus, cls. (1) or
(2) and (4) of S. 2 of the Act must be considered on different footing.
(24) The present time is denoted either in the form: “if you wish, I will help you†or “If I were you, I’d go†or “If I knew what to do, I
should do it.†The past time is in this form: “If I had known, I might have gone.†The phrase ‘if he marries again’ would be expanded to
either ‘If he should marry again’ or ‘if he would marry again’, preferably the first. In our opinion, the clause as expanded by us cannot
but be interpreted prospectively. Though the opening words of S. 2 refer to a ‘a Hindu woman’ making it applicable to all cases, the effect of cl.
(4) is to cut down the application to those cases in which the husband marries again after the date on which the Act became law.
We would think that in the facts of this case, however, the case, which is more apposite to apply, would be the decision in R. v. Mary Whitechapel
(St.) (Inhabitants), which we have referred to. We may also notice, undoubtedly, the judgment of the Hon’ble Apex Court in the case of Boucher
Pierre Andre Vs. Superintendent, Central Jail, Tihar, New Delhi and another reported in (1975) 1 SCC 192. Therein, the appellant claimed the benefit
of Section 428 of the new Criminal Procedure Code, which came into force on 1st April, 1974. The question, which arose was, as to whether Section
428 is confined in its application only to cases where a person is convicted after coming into force of the new Code of Criminal Procedure or does it
also embrace cases where a person has been convicted before, but his sentence is still running on the date when the new Code of Criminal Procedure
came into force. The Court went on to hold that Section 428 is applicable also in a situation, where indeed the petitioner found himself in.
We may also advert to one more decision of the Hon’ble Apex Court in the case of K.S. Paripooran Vs. State of Kerala and others reported
in AIR 1995 SC 1012. There, a Constitution Bench was called upon to decide as to whether a person is entitled to the benefit of additional amount
under Sub-section (1-A) of Section 23 of the Land Acquisition Act, 1894 irrespective of when the award was passed. The majority decision, we
notice, has considered the decision of the English Court, which we have referred to, among other decisions and proceeded to draw support from the
provisions of Section 30 of the amending Act and took the view that the person would be governed in terms of the limitations flowing from Section 30.
We would think that the said decision may not persuade us to take a view contrary to what we have taken, namely, that having regard to the context
of the law, the amendment, which was brought in, would indeed apply, in our view, to a vacancy, which existed both prior to and which came into
being after the amendment. We have already given reasons in support of the said view.
Once we take the view that the amendment, which came into being on 10.12.2015, also applies to the vacancy which arises prior to the
amendment, we would have to deal with the other arguments, which has been addressed before us. First of all, we must refer to the judgment, which
has been relied on by the learned Senior Counsel for the transferee teacher. Taking the decision of the Division Bench of the Allahabad High Court in
the case of Committee of Management of Captain Ummed Singh Uchchatar Madhyamik Vidyalaya Vs. District Inspector of Schools reported in
[1990] 1 AWC 171, we would think that in the said case, the facts were different and the Court certainly was not dealing with the amendment of the
kind we are confronted with. There, in the said case, the writ petition was filed against the order dated 12.06.1986 for appointment of respondent No.
2 in the substantive vacancy of L.T. grade. The 2nd petitioner and the 3rd respondent were promoted on ad-hoc basis as L.T. grade teachers. The
impugned order in the said case has been passed under Section 21-B of the Act in question. It provides for absorption of teacher against substantive
vacancy. The 2nd respondent was indeed a reserved pool teacher, who could be absorbed against a vacancy to be filled up by way of direct
recruitment. No doubt, the Division Bench, after referring to Regulations 6, held as follows: “Five years continuous service in C.T. Grade as such is
a condition of eligibility of promotion to the post of L.T. Grade from C.T. Grade. Petitioner no. 2 and respondent no. 3 were appointed in C.T. Grade
in the school in 1979 and were promoted in the post of L.T. Grade in 1981. At the time of promotion they did not have five years continuous
substantive service in the C.T. Grade and as such were not eligible for being promoted to L.T. Grade. No other teacher in the school of C.T. Grade
was eligible for being promoted to L.T. Grade. When eligible candidates for promotion are not available, the post cannot remain vacant and
appointment had to be made by direct recruitment. Filling in 40 per cent post of promotion by clause (2) of Regulation 5 has been made subject to the
availability and eligibility of the teachers for promotion. As in the school there is no eligible teacher for being promoted to L.T. Grade, the post has to
be fi9lled in by direct recruitment and in view of this position reserved pool teacher can be absorbed / appointed on the post of L.T. Grade against
which the petitioner no. 2 and the respondent no. 3 were earlier appointed on ad hoc basis.â€
We would think that the attempt of the learned Senior Counsel to draw support from this judgment may not be well founded. We do not understand, on
a perusal of the judgment, as to what was the statutory basis for the Court to hold that the vacancy to be filled up by way of promotion can be
converted into the vacancy to be filled up by way of direct recruitment. In fact, none of the learned counsel appearing before us could point out any
provision, which provided for conversion of a vacancy to be filled up by way of promotion to one, which can be filled up by way of direct recruitment.
In such circumstances, we may not be in a position to lay store by the aforesaid judgment. We must refer to Paragraphs 1 & 2 of the judgment, in
which the facts have been set out:
“1. Ram Lakhan, petitioner no.2 and respondent no. 3 were appointed as C.T. Grade Teacher in a High School known as Captain Ummed Singh
Uchchattar Madhyamik Vidhyalaya, Kalhore, District Mainpuri (hereinafter referred to as the school). In order to establish a Secondary Education
Commission and Secondary Education selection Board for selection of Teachers in the institution recognized under Intermediate Education Act, 1921,
the Government of Uttar Pradesh had promulgated an ordinance as U.P. Secondary Education Services Commission and Selection Board Ordinance
of 1981. As the establishment of Commission and Selection Board was likely to take some time and there were number of vacancies in the posts of
teachers in various institutions, Government of U.P. issued U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981
(hereinfter referred to as Removal of Difficulties Order).
The school was a recognized institution under Intermediate Education Act. There were vacancies in the L.T. grade in the school and as such the
Management under paragraph 4 of the Removal of Difficulties Order promoted the petitioner no. 2 and the respondent no. 3 to L.T. grade purely on
adhoc basis. Adhoc appointment of the petitioner no. 2 and respondent no. 3 were approved by the District Inspector of Schools, Mainpuri vide order
dated 26-3-X6.â€
The other judgment, i.e. Mumtaz Ahmad Vs. Deputy Director of Education, Allahabad Region, Allahabad reported in [(2000) 1 UPLBEC 735], is
relied on by the learned Senior Counsel, is in the context of Regulation 20, which we have already set out. The argument of the learned Senior
Counsel for the Transferee teacher cannot be accepted for what has been clearly laid down in paragraph 5, which reads as follows :
“5. The consequences stipulated in Regulation 20 are to ensure on the failure of the Committee of Management to advertise the post in accordance
with the regulations within a period of three months from the date of occurrence of the vacancy. The question of advertisement of a vacancy reserved
to be filled in by promotion under Regulation 5 of Chapter II of the Regulations does not arise inasmuch as advertisement is necessary only where the
vacancy is to be filled in by direct recruitment. In other words, Regulation 20 will have no application where the post falls within 50% quota reserved
for appointment by promotion under Regulation 5 of Chapter II of the Regulations. The learned Single Judge in our opinion, fell into error in holding
that Regulation 20 of Chapter II would be attracted since the post could not be filled up by promotion as there was no qualified candidate available and
it ""became a post required to be filled up by direct recruitment"". The reasoning is in fact fallacious. We have no manner of doubt that Regulation 20 in
terms will not apply to a post which is required to be filled in by promotion under Regulation 5 of Chapter IIÂ Â Â Â Â Â Â of the Regulations.
Assuming that Regulation 20 will be attracted even in relation to a post falling within the promotion quota which cannot be filled in by promotion due to
non availability of a qualified and eligible teacher, we are of the view the post would not be deemed to have been surrendered until expiration of period
of 90 days from the date the Committee of Management decides to fill in the vacancy by direct recruitment. There is no finding that the advertisement
was made beyond the period of three months from the date the Committee of Management decided to fill in the vacancy by direct recruitment. In
such view of the matter the view taken by the learned single Judge cannot be sustained and we are of the considered view that the orders impugned in
the writ petition are liable to be quashed.â€
In view of the same, it is clear that Regulation 20 has no application for the vacancy to be filled up by promotion quota. In fact, if the argument is
carried to its logical end, then there would be no vacancy, wherein transferee teacher could possibly be appointed. The position, therefore, is that
under the Regulation, with reference to Regulation 5 (2) and Regulation 6, when a vacancy arises within the promotion quota and there is nobody
qualified to be promoted, there is no provision, which contemplates conversion of the vacancy to one, which is to be filled by direct recruitment quota.
The only exception, which is contemplated, is Regulation 9, which reads as follows :
“9. (1) Where a vacancy in the post of teacher is caused by grant of leave to him for a period exceeding six months or where a teacher is placed
under suspension which has been approved in writing by the Inspector under sub-section (7) of Section 16 -G and the period of such suspension is
likely to exceed six months from the date of such approval [the vacancy may, subject to the provisions of these Regulations be filled temporarily by
direct recruitment or promotion, as the case may be.]
(2) Where any vacancy is of the nature referred to in Clause (1) or is caused as a result of promotion under Regulation 2 and the period of such
vacancy exceeds thirty days but does not exceed six months, it may be filled by the Committee of Management by promotion of a duly qualified
permanent teacher of the institution in the next lower grade on the basis of seniority.
(3) If any vacancy under Clause (20 cannot be filled due to the non-availability of any teacher of the institution in the next lower grade, possessing the
prescribed minimum qualifications for the post, it may be filled on ad hoc basis by the Committee of Management by the direct appointment for a
period not exceeding six months in aggregate.
(4) All vacancies filled under Clause (2) or Clause(3) shall be reported to the Inspector in the proforma prescribed in Appendix ‘B’ within a
week of being filled up.â€
Regulation 9 obviously cannot apply as the present case is neither a case of a teacher going on leave, nor is it a case of a teacher being
suspended. Secondly, Regulation 9 is itself significant as it will show that the law-giver was conscious that when the vacancies do arise on account of
contingencies of suspension or teacher going on leave, and it has to be filled up by way of promotion, then it made a provision for converting it into
direct recruitment, where there is no teacher available for being promoted. The Regulations, however, do not provide for a situation, where without
there being resignation or suspension or teacher going on leave, and the vacancy is to be filled up by way of promotion under Regulations 5(2) and 6
and qualified teacher is not available and conversion to direct recruitment of the vacancy can be done.
Coming to the argument of learned Senior Counsel for the transferee teacher that even if it is held that the amended provision will apply to the
vacancy, which arose prior to the date of the amendment, still the petitioner cannot avail the benefit of the same for the reason that he was not
qualified as on 1st April, 2015, we are of the view that this argument does not merit acceptance. What the amended Regulation provides for is that be
it vacancy, which arose prior to or after the amendment and if an employee in the feeder category acquires qualification on the first day of the
academic year, which he/she did not have earlier, then a resolution can be passed thereafter by the Management to promote him / her.
The writ petitioner in this case acquired qualification on 17.11.2015. The next academic year commences from 1st April, 2016 and ends on 31st
March, 2017. Therefore, in terms of the amendment, we must hold that it only means that the petitioner would be treated as having obtained the
necessary qualification on 1st April, 2016. This clearly, at any rate, enabled the Management to pass an order to resolve to promote him.
In conjunction with this aspect, we must consider what right, if any, has been acquired by the transferee teacher on the basis of the steps being
merely taken on 04.04.2015. We are of the view that it cannot be said that the transferred employee acquired any right as such on the basis of the
steps, which were taken on 04.04.2015. The transfer stood materialized only on 07.12.2016. This means that much prior to the said date, the writ
petitioner, having acquired the qualification on 17.11.2015 and in terms of the amendment, he must be treated to have acquired the qualification as on
the first day of the academic year, namely, 2016-2017 and a good eight months went by before the order of transfer was passed. Before the order of
transfer, we do not find it possible to accept that the transferee can clothe himself with any right.
We have already noticed that there is no provision for converting the vacancy arising in the promotion quota to direct recruitment quota. It is
incontrovertible then that without the vacancy falling in direct recruitment, a transfer under Regulation 49 cannot be done and yet this has been done.
We are told by the learned counsel for the appellants in both the Appeals about the difficulty, which this interpretation will create in the efficient
running of the educational institution. The vacancy reserved for promotion will remain unfilled on account of absence of qualified hands. A situation is
created by this interpretation, which will result in the supreme interest, which would govern us also, namely, the interest of the student community
being in jeopardy. On the other hand, there is an aspect relating to the right available to the persons in the feeder category to be promoted under 50%
of the vacancies. In this regard, we must notice that the post in question has been clearly identified as the post falling in the promotion quota. This is
clear from the tabulation made by the Management itself. Furthermore, we have noticed that the person, who was formerly holding the post of
Lecturer (Sociology), was also a promotee, and on his retirement, a vacancy has arisen. We also notice Regulation 6 (5) at this juncture, which reads
as follows:
“6(5) In respect of any teacher selected for appointment by promotion in accordance with these regulations, the Manager of the Institution shall
within a week from the date of resolution passed by the Committee of Management in regard to such appointment forward [the proposal for the
concurrence of the Inspector together with] a copy of such resolution and a statement showing the following particularsâ€
(i) the total number of sanctioned posts in the grade in which promotion is to be made;
(ii) the number of posts to be reserved for promotion;
(iii) the number of posts already filled by promotion giving names of the incumbents;
(iv) the total number of vacancies which have occurred;
(v) the number of vacancies determined by the Committee of Management to be filled by--
(a) promotion;
(b) direct recruitment;
(vi) the names of all eligible candidates for promotion, their qualifications and the length of their service from the date of their substantive appointment
in the grade from which they are to be promoted; and
(vii) names of persons selected for promotion.â€
In terms of the same, apparently the vacancy has to be treated as one falling in promotion quota.
We have already noted the stand of the appellant College that the post, in question, is one, which has to be filled up by way of promotion. It is true
that there may be lacunae in the Regulations, but, at any rate, in the facts of this case, there was a person from the feeder category, namely, the writ
petitioner, who became subsequently qualified to be considered in terms of the amended provision in Regulation 6, at least after 01.04.2015 in terms of
the determination made by us.
We would think that in the absence of any provision, it may not be possible for this Court to infer and hold that whenever a vacancy arises under
Regulations 5 and 6 falling within the promotion quota, and there is no qualified person for being promoted, it will be open to the Management
Committee, without anything more, to treat this vacancy as a direct recruitment vacancy to be filled up either by way of direct recruitment or by way
of transfer under Regulation 49. Yet this is what has been done in this case.
In the light of the above discussion, we are not persuaded to hold that the learned Single Judge has committed any error. We see no reason to
interfere with the judgment of the learned Single Judge. We may consider that if the Management, instead of going in for transfer under Regulation 49,
had understood the amendment in the manner, we have understood it and, promoted the petitioner invoking the amendment, could it have been
characterized as legally flawed? We would certainly think that it would not have come under the shadow of any kind of illegality, having regard to the
discussion we have made in this regard. The Management proceeded to persevere to invoke Regulation 49 culminating in the order of transfer being
passed, which is, we think, without legal basis.
Having regard to the aforesaid discussions, the Appeals fail and they are dismissed. There will be no order as to costs.
We have noticed the complaint raised by the appellants relating to absence of any provision to deal with a situation where under Regulations 5 and
6, if none is qualified and even in terms of the amendment to Regulation 6, within a reasonable period of time, there is none, who becomes qualified,
that this may affect the academic interest of the students. We make it clear that it will certainly be open to the Government to bestow its attention on
this aspect and to consider bringing any change if it is found advisable.