Hari Shankar Sharma vs Director of Education and Others

D.K. Seth, J.—The order dated 21st February, 1992 being Annexure 1 to the writ petition is under challenge. By the said order the dispute with regard to the seniority between the Petitioner and the Respondent No. 1 was determined holding the Respondent No. 5 senior to the Petitioner. While deciding the same the promotion of the Petitioner to the C.T. grade teacher by order dated 15th September, 1980 was held to be effective from 1st November, 1973 instead of 8th July, 1968 the date mentioned in the said order of promotion dated 15th September, 1980 (Annexure 3 to the writ petition).

Learned counsel for the Petitioner Mr. Mahesh Gautam in support of his contention contended that the Petitioner was appointed in J.T.C. grade on 8th July, 1962. He was confirmed as Assistant teacher on 8th July, 1968. Whereas the Respondent No. 5 was appointed first on 7th September, 1970 in C.T. grade as an Assistant teacher temporarily and thereafter he was appointed as teacher in Sanskrit on 12th July, 1971. By order dated 15th September, 1980 (Annexure 3) the Petitioner was promoted to C.T. grade w.e.f. 8th July, 1968. Against the said order the Respondent No. 5 preferred an appeal. By order dated 2nd June, 1986 the appeal was allowed. On 6th June, 1986 the Petitioner moved an application for setting aside the said order. By an order dated 15th September, 1988 the order dated 2nd August, 1986 was cancelled (Annexure 3A) and the Petitioner was declared senior to Respondent No. 5. By an order dated 21st February, 1992 a three member Committee had set aside the order dated 15th September. 1986 declaring the Respondent No. 5 senior to the Petitioner. On these facts he assailed the order dated 21st February, 1992 on four fold grounds:

(a) It is the Director who can decide the issue. The three member Committee is incompetent and has no jurisdiction to decide the issue.

(b) The decision of the said three member Committee to the effect that by reason of the Government Order dated 25th January, 1974 the Petitioners'' promotion in C.T. grade would not be effective prior to 1st November, 1973 cannot be sustained in view of the provision incorporated by way of amendment in the U.P. Intermediate Education Act, 1921 brought into being by means of U.P. Act 26 of 1975 and consequent amendment brought about on 9th December, 1976 in Regulation 7, Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921 as well as the clarification issued by the Director of Education (Intermediate) in its Circular dated 24th November, 1976 that the Government Order dated 25th January, 1974 was no more effective after 1975 amendment.

(c) A situation which became final by reason of order dated 15th September, 1986 (Annexure 3A) cancelling the order dated 2nd August, 1976 could not be altered by the Committee on account of lapse of time particularly when the Petitioner was granted selection grade scales of pay w.e.f. Ist July, 1979 on the basis of his appointment given on 8th July, 1962.

(d) That the order was passed without giving the Petitioner an opportunity of hearing, therefore, the same is bad.

Mr. H. N. Tripathi, learned counsel for the Respondents on the other hand opposed the contention of Mr. Gautam, learned counsel for the Petitioner on the ground that the question of competence and jurisdiction of the three member Committee, a technical objection, cannot stand in the way because of the simple reason that the retrospective fixation of promotion in C.T. grade w.e.f. 8th July, 1968 is per se a nullity and void ab initio. Therefore, it does not require any declaration as such. According to him the Respondent No. 5 having been appointed in the C.T. grade on 12th July. 1971 remained senior to the Petitioner until 15th September, 1980. The Petitioner was promoted to C.T. grade by order dated 15th September. 1980 with retrospective effect w.e.f. 8th July, 1968. The order of promotion was issued by reason of the Government Order for automatic promotion. Such order of automatic promotion could be granted to the Petitioner either by virtue of Government Order dated 25th January, 1974 or by reason of the amendment brought about by Act 26 of 1975 in the U.P. Intermediate Education Act and the consequent amendment brought about on 9th of December, 1976 in Regulation 7, Chapter II of the Regulations framed under the said Act. The 25th January, 1974 Government Order specifically prescribed that such automatic promotion could be given to teachers working in J.T.C. grade continuously for a period of five years but in no case such promotion could be effected prior to 1st November, 1973. By reason of such clear specification, by no stretch of imagination the Petitioner could be granted promotion effective before 1st November, 1973 if such promotion is granted by virtue of the said 1974 order. According to him, if the contention of Mr. Gautam is accepted by reason of the clarification issued by the Circular dated 24th November. 1976 that the said 1974 order became inoperative after the 1975 amendment Act. In that event the promotion could be given only by virtue of the amendment referred to above. There being no indication that those amendment would have retrospective effect, there was no scope for giving retrospective effect to such promotion from a date prior to the date of amendment brought about. He had confined his argument only on those aspect.

After having heard learned counsel for the parties it appears that the facts are some what admitted as indicated above. Admittedly, the Petitioner was appointed in J.T.C. grade on 1st of July, 1962 and was confirmed on 8th July, 1968 and remained in the said grade until the order of promotion dated 15th September, 1980 was issued. The said order was issued admittedly persuant to 1975 amendment in the Act and the 1976 amendment in the Regulation.

Mr. Gautam had never seriously contended that the said amendment was intended to be effective retrospectively. Be that as it may the 1975 Act does not appear to be retrospective in operation. It is an established principles of law that unless the intention is expressed or implied in the legislation the same cannot be of retrospective operation. It is an established principles of law that unless the intention is expressed or Implied in the legislation the same cannot have retrospective operation. The intention is to be gathered either from the provision expressed or implied. Mr. Gautam has not been able to point out anything so as to enable this Court to hold the same retrospective in operation. I have also not been able to persuade myself to find out anything which expressly provide that the said amendment was retrospective in operation. I have also not been able to trace out any implication by which it can be said that the legislation had intended its retrospective operation.

The relevant amendment brought about by U.P. Act 26 of 1975 for present purpose is that relating to Section 16G by which it was provided that the conditions of service of the persons employed in a recognised institution shall be governed by the Regulation prescribed and the agreement between the management and such employee. But any agreement contrary to the provisions of the Act or the Regulation shall be void. The expression used in the said amended section is to the extent "shall be governed by such conditions...prescribed by Regulations...as it is inconsistent...shall be void." In no uncertain term the Legislature has used the word "shall". The use of the expression "shall" clearly indicates the operation as perspective and not retrospective.

Regulation 7. Chapter II provided that vacancy of C.T. grade teachers are to be filled up by direct recruitment Clause (2) of the Regulation provides that a teacher completing five years service in J.T.C. or B.T.C. grade shall be promoted to C.T. grade if he has passed Intermediate or equivalent examination or is a trained graduate. Despite existence of Clause (2) of Regulation 7 the Committee of Management did not promote the Petitioner until 1980. In the meantime the 1974 Government Order was issued by which it was directed that all such eligible teachers would be promoted suo motu. But a rider was incorporated in the said order to the extent that in no case such promotions should be effective prior to November, 1973. By reason of the clear specification in the said order the promotion given after the said 1974 Circular cannot be effective prior to Ist November, 1973. The question would have been otherwise if the Committee of Management had itself granted promotion before the said 1974 Circular was issued In terms of Clause (2) of Regulation 7. Prior to the amendment of Section 16G it was not mandatory that the conditions of service of a teacher in a recognised school would be governed by the regulation. Such condition was governed by the agreement between the Committee of Management and the employee concerned. The teachers of the recognised schools working in J.T.C. grade became eligible for promotion on fulfilling the conditions as contained in Clause (2) of Regulation 7 specifically laid down in the 1974 order only on the issue of the Government Order. Prior to the issue of the Government Order no such right could be claimed by an employee unless there was such an agreement or unless he was given promotion as such.

Section 16G provides that condition of service of a person employed in a recognised institution shall be governed by Regulation and any agreement between the management and such employee only to the extent such agreement are not inconsistent either with the provisions of this Act or with regulation and such part as are inconsistent would be void. In course of argument court''s attention was not drawn to any such agreement by virtue whereof promotion could be claimed to the C.T. grade by the Petitioner with effect from 8.7.1968. It is also not the case of the Petitioner that the date of his promotion to C.T. grade was so fixed in terms of any agreement. Until the regulations were framed and until the conditions were so governed by such regulations, as the case may be. the agreement relating to condition of service was to be in the form as provided in the Schedule 1, Appendix V, VI or VII provided in the Education Code. By reason of Para 143 (f) of the Education Code all the agreements were to be one or the other of these forms. Such form do not prescribe any such promotion by which promotion to C.T. grade could be claimed by a teacher on a particular date. There being nothing either in the Act or in the Regulation until 1976, the right to get promotion having not been available even from the agreement, there is nothing to show that any such right was available to the Petitioner.

Thus, the right to get such promotion flows from such Government Order. A right created by reason of the said Government Order has to confine its extent within the terms prescribed therein. The said Government Order having restricted the promotion given persuant to the said Government Order to the extent that in no case such promotion should be effective prior to 1st November, 1973, there is no scope for the management to give promotion after the 1974 order prior to 1st November, 1973 if such order of promotion is issued after the issue of the said Government Order. Until Section 16G was incorporated by reason of 1975 amendment such promotion could be given only by reason of the 1974 G.O. But as soon as the amendment was brought about in Section 16G the said 1974 Government Order becomes inoperative on the consequent amendment made in the Regulation. The right flows from the said requirement itself. Therefore, the right could be claimed at best from the date when the said amendment was brought about. In view of the 1974 G.O. the equal opportunity was available for the period during the said 1974 G.O. remained operative and until the amendment was brought about. The 1974 G.O. having stipulated the cut off date as on 1st November, 1973 there is no scope of giving promotion prior to such date. In the absence of the said G.O. the promotion could be claimed only by reason of the 1975 amendment which makes Clause (2) of Regulation 7 applicable in the case of the Petitioner with prospective effect from the date of such amendment as observed earlier.

Thus, it appears that the promotion given in 1980 by no stretch of imagination could be effective from a date prior to 1st November, 1973 therefore, the order dated 15th September, 1980 is to be read as effective from Ist November, 1973 and not before.

Be that as it may, it appears that the contention raised by Mr. Gautam with regard to the competence and jurisdiction of the three members Committee has some substance. Inasmuch as, by reason of notification dated 9th December, 1976 Clause (2) of Regulation 7 was amended to the extent that the information of such promotion is to be conveyed to the District Inspector of Schools immediately when such promotion is granted. The said 1976 notification had also inserted Clause (3) in Regulation 7 empowering the District Inspector of Schools (hereinafter referred to as the D.I.O.S.) to refer a case to the Director when he had reason to believe that the promotion was given in contravention of the Act or the Regulation. He was also empowered to take any other action in that behalf. In the present case by an order dated 2nd June, 1976 the D.I.O.S. had himself decided the appeal of the Petitioner and held that the Petitioner was junior to the Respondent No. 5 and that the fixation of the date of promotion to be effective from 8th July, 1968 in C.T. grade given to the Petitioner was illegal. Whereas by an order dated 15th September, 1988 he had cancelled his earlier order. The reasoning given in the said order does not appear to be sound since the same was sought to be cancelled on the ground that going on leave in the year 1973-74 and 1974-75 would not effect the merit of the case which is in no way concerned with the determination of the question. The order dated 15th September, 1968 contained in Annexure 3A does not appear to be sound and reasonable and that too has been passed in reviewing his earlier order after having decided the same in one way or the other once earlier. Therefore, a doubt may be casted on the legality and validity of the order passed by the District Inspector of School being dated 15th September, 1968 contained In Annexure 3A.

The Respondent No. 5 was shown in the seniority list prepared in 1975-76 (Annexure CA.2) as senior to the Petitioner. Even in the seniority list 1979-80 (CA-3) the Respondent No. 5 was shown senior to the Petitioner inasmuch as while the Respondent No. 5 was at serial No. 35 the Petitioner was shown at serial No. 42 in CA-2 and at serial No. 43 in Annexure CA-3. The position was sought to be altered by the Committee of Management by reason of the order dated 15th September. 1980 by effecting the promotion w.e.f. 8th July, 1968.

On the other hand nothing has been shown to this court as to how the said three members Committee was competent to decide the issue while Clause (3) of Regulation 7 specifically prescribed that the matter is to be referred to by the District Inspector of Schools to the Director. The decision, therefore, by the said three members committee does not appear to be competent and within their jurisdiction. In the facts and circumstances of the present case it was incumbent on the D.I.O.S. to refer the same to the Director in view of the specific provision contained in Clause (3) of Regulation 7. The Director is the competent authority to decide the question unless there is any provision either in the Regulation or anywhere else to delegate such powers or there has been such delegation. In the absence of any sufficient material it Is not possible to hold as to whether there was any delegation or not as to whether the three members Committee was competent or not. Referring to an order dated 15th February, 1989 contained in Annexure 4 Mr. Gautam sought to submit that the decision dated 21st February, 1992 was cancelled by the Director. But the said submission is wholly devoid of merit. Since an order dated 21st February, 1992 cannot be set aside by an order dated 15th February, 1989. Mr. Gautam sought to highlight from the order dated 21st February, 1992 that the meeting was held on 24th January, 1989. He further contended that the said order specifically pointed out that such steps could be taken only after giving hearing to the person concerned by the competent authority. By reason of such declaration the said three members Committee was not competent to pass the order on 21st February, 1992. This contention seems to be of some substance. But in the absence of sufficient material it Is not possible to come to a clear finding.

The point raised by Mr. Gautam that the Petitioner was not given any opportunity of hearing was not contested by Mr. Tripathi. Nothing appears from the order itself that any opportunity was accorded to the Petitioner.

Thus, it appears that the competence and jurisdiction of the three members Committee is doubtful. In that view of the matter, the matter may be referred to the Director or to such other competent authority empowered under the law to decide the dispute as contemplated in Regulation 7 within a period of six weeks from the date a certified copy of this order is produced before the concerned District Inspector of Schools. If and when such reference is made to the Director, the Director shall decide the question as to whether the said three members Committee had competence and Jurisdiction under the law to decide the question in case he finds that the said three members Committee was competent, in that event the order dated 21st February, 1992 shall stand affirmed in view of the observation made above. In case he finds the said three members Committee as incompetent, in that event he will consider the question himself or may refer to the appropriate authority for decision afresh in the light of the observations made in the judgment. Such decision shall be concluded and given within a period of eight weeks from the date of receipt of such reference.

The writ petition is thus disposed of. There will be no order as to costs.

Let a certified copy of this order may be given to the learned counsel for the Petitioner on payment of usual charges within seven days.