M.P. Mehrotra, J.@mdashThis petition under Article 226 of the Constitution of India seeks to question an advertisement which has been made by the U.P. Secondary Education Service Commission and Selection Board, Allahabad, whereby the Commission has invited applications for the post of a Principal in a Higher Secondary Institution. A true copy of the relevant advertisement is annexure 7 to the petition. The facts, in brief are these.
2. The Petitioner was appointed as the Principal of the Institution in question on adhoc basis. The Annexure 1 is a copy of the relevant resolution passed by the management committee of the institution in its meeting held on 15th September, 1976. He was the senior most teacher and, accordingly, he was selected for the post in question. The DIOS granted his approval by Annexure 3 to the petition. It seems that some dispute arose between the Petitioner and the Committee of Management some times in 1978 and he was paid his salary till June, 1978. Thereafter, the Committee of Management began to treat one Sobran Lal Yadav as the acting Principal of the institution. It seems that the Petitioner approached the Deputy Director of Education Region No. VI and the latter by his order dated December 5, 1981 directed the DIOS to see that the charge of the acting Principal was given to the Petitioner, and further that the Petitioner should be given the salary due to him. A true copy of the said order is annexure 5 to the petition. It has not been mentioned in the petition but the learned Counsel for the Petitioner informed us that in compliance with the aforesaid order dated 5th December, 1981, the DIOS passed an order dated 8th December, 1981 whereby the Manager of the Institution in question was directed to see that the charge of the Acting Principal was handed over to the Petitioner and that he was paid the arrears of his salary. Against the aforesaid order the Committee of Management filed a writ petition No. 5978 of 1981 in the Lucknow Bench of this Court and in para 7 of the petition it is stated that the same is still pending. We have been informed by the learned Counsel for the Petitioner that the operation of the aforesaid order of the DIOS dated 8th December, 1981 has been stayed by the said writ Petitioner. Therefore, it seems that the present position is that the Petitioner is not acting as the ad-hoc Principal of the institution and Sri. Sobran Lal Yadav is presently acting as the ad-hoc principal.
3. After the appointment of the U.P. Secondary Education Service Commission and Selection Board, the said body has begun to function in accordance with the provisions, inter alia, contained in Sections 9,10 and 11 of U.P. Act No. 5 of 1977. The Management notified the vacancy of the post of Principal in the Institution to the said Commission and the latter accordingly issued the advertisement in question (Annexure 7 to the petition) inviting applications for the said post of Principal of the said College.
4. The Petitioner''s contention is that there is no vacancy for the post in question as he is the lawfully appointed permanent incumbent of the said post and, therefore, the impugned advertisement was uncalled for and is bad in law. For this contention, the learned Counsel for the Petitioner placed reliance on Section 16-GG of the U.P. Intermediate Education Act, 1921 as amended by various subsequent amending Acts. The said section is reproduced below:
16-GG Regulation of appointment of adhoc teachers-(1) Notwithstanding anything contained in Sections 16E, 16Fand 16FF, every teacher of an institution appointed between August 18, 1975 and September 30, 1976 (both dates inclusive) on adhoc basis against a clear vacancy and possessing prescribed qualifications or having been exempted from such qualifications in accordance with the provisions of this Act, shall, with effect from the date of commencement of this section, be deemed to have been appointed in a substantive capacity, provided such teacher has been continuously serving the institution from the date Of his appointment up to commencement of this section.
5. Counsel''s submission is that the expression "teacher" as used in the said provision includes the principal of the institution also. This controversy is covered by a decided case of this Court reported in Pyare Lal Chaudhari v. State of U.P. 1978 AWC 480, where the Division Bench has clearly laid down that the said provision is not applicable to the heads of the institution such as the Principal. The learned Counsel contended that the Division Bench has wrongly laid down the law and the controversy is fit to be referred to a larger bench. In our view, nothing has been shown to us to warrant a reference to a larger bench. It should be seen that Section 16-GG is in the nature of a saving Clause or an exception to the provisions of the preceding Sections 16-E, I6-F and 16-FF. Section 16-E lays down the procedure for selection of teachers and heads of the institution. It is, therefore, clear that the heads of institutions have been treated as separate from the teachers. Different selection committees are appointed for the selection of teachers and for the selection of heads of the institutions. Sub-section (8) of Section 16-E lays down that the Committee of Management shall where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagreement to the Regional Deputy Director of Education in the case of appointment to the post of Head of Institution and to the Inspector in the case of appointment to the post of teacher of an institution. It will be seen that the reference is to be made to separate authorities where the head of the institution is involved and where the selection of teacher is in dispute. Sub-section (10) of Section 16-E lays down where the State Government, in case of the appointment of head of Institution, and the Director in the case of the appointment of teacher of an institution, is satisfied that any person has been appointed as head of Institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be, the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary. It is again clear that different authorities come into picture when the head of the institution and a teacher are involved. It is the State Government which has the power to interfere in the case of the appointment of heads of Institution whereas it is the Director of Education who comes into picture when the appointment of teacher is involved. In Section 16-F it is clearly prescribed that the Selection Committee for the appointment of the head of the institution has a different constitution from the constitution of the Selection Committee for the appointment of teachers. In Section 16-FF, which provides for the savings as to minority institution, again the distinction between the head of the Institution and the teacher of an institution is maintainable.
6. Now when Section 16-GG starts by laying down that notwithstanding anythying contained in Section 16-E, 16-F and 16-FF, appointment of every teacher of an Institution appointed during a certain period shall stand regularised, it is not possible to contend that the expression " teacher " should include the head of the Institution. In the context, in which this section namely Section 16-GG has been placed, in the sequence in which this section has been enacted, namely, with the preceding Sections 16-E, 16-F and 16FF and further, when an explicit reference has been made to the said three sections and it has been laid down that notwithstanding any thing contained in the said three sections, the appointment of a teacher made between a certain specified period shall stand regularised, then according to the well known rules of interpretation, the expression, teacher must be given the same interpretation as is to be given in the preceding three sections. It is not possible to argue that while in Sections 16-E, 16-F and 16-FF the expression teacher will not Include the head of the institution in Section 16-GG the expression ''teacher'' should include the head of the institution. We have already pointed out that the said Act in its aforesaid section has maintained a classification so far as the teachers are concerned as distinguished from the heads of the institution. It is permissible to conclude that the said classification is still continuing in the ''instant section also namely Section 16-GG. Its operation is confined only to teachers and not to the heads of the institution. We do not find anything illegal or irrational in having such a distinction between the teacher and the principals. The Division Bench referred to above has referred to certain aspects of the matter and we express our agreement with the approach of the said Division Bench on this point.
7. Some support may also be found for the aforesaid view from the provisions contained in Clause (b) of Sub-section (3) of Section 16-GG. It is laid down in the said provision that nothing in this section shall be construed to entitle any teacher to substantive appointment if such teacher was related to any member of the Committee of Management or the Principal or Head Master of the institution concerned. It is obvious that the expression ''teacher'' cannot be held to include the Principal or head master of the Institution in view of the said disqualification laid down in Clause (b) of Sub-section (3) of Section 16-GG. The learned Counsel contended that the said Clause should be interpreted in the manner that if the Principal is related to the member of the Committee of Management then this disqualification should be attached to him. In our view, if that were the intention then a different phraseology would have been employed by the legislature and there was nothing to prevent the Legislature from specifically including the heads of the Institution also along with teachers with a different construction of the provision in question.
8. The learned Counsel placed reliance on the pronouncement of this Court reported in
9. The learned Counsel drew our attention to the fact that in the new Act namely U.P. Act No. 5 of 1982, the expression ''teacher'' has been defined in Section 2(k) as including a principal or a head-master. The learned Counsel contended that a retrospective operation should be given to the said provision or, in the alternative, that the expression ''teacher'' as used in Section 16-GG should be interpreted in the same manner in which the said expression has been defined in the aforesaid new Act. Again, we do not find merits in this contention. It should be seen that the Legislature has not at all intended that any retrospectivity should be given to the aforesaid definition of ''teacher'' in Section 2(k) of the said Act. The very fact that the legislature thought it necessary to add specifically that the expression ''teacher'' will include a principal or a head-master, goes to establish that but for the said explicit inclusion, it would not have been possible to include within the ambit of the expression ''teacher'' the heads of the institution under the U.P. Act of 1982. The said definition of ''teacher'' in the new Act (U.P. Act No. 5 of 1982) in fact, goes against the contention of the learned Counsel.
10. This petition is accordingly dismissed in limine.
11. The learned Counsel for the Petitioner prayed that a certificate of fitness may be issued to the Petitioner under Article 133 of the Constitution of India. We do not think that there is any such substantial questions of law of general importance in this case which needs to be decided by the Supreme Court. We accordingly reject the prayer for the certificate.
