PRABODH VERMA AND OTHERS, ETC. v. STATE OF UTTAR PRADESH AND OTHERS, ETC.

The second question is "Whether this dilferentia which distinguishes reserve pool teachers from other applicants for the posts of teachers in recognised institutions has a rational relation to the object sought to be achieved by U.P. Ordinances Nos. IO 11rn;l 22 of 1978?" T!tese Qrdinances can11ot be read in isolation. H

256 SUPREME COURT REPORTS (1985] l S.C.R.

A They must be read in the context of the Intermediate Education Act. As the Preamble to that Act shows, it was enacted because it was felt expedient to establish a Board to take the place of the Allahabad University inter alia in regulating and supervising the system of High School and Intermediate Education in the United Provinces, as the State of Uttar Pradesh was called at the B time of passing the of that Act. The object of that Act as shown by its Preamble and different provisions is to ensure that educational institutions managed and conducted by private management are staffed and run properly. To provide therefor that those who had already s]iown their concern for the maintenance and continuity of the educational system in the State should receive a preferential treatment in req"irement over those who had not 'shown such con- cern cannot be said to be foreign to the object of the legislation. If the State were not to appreciate in a concrets from the services of those who came to its aid in an emergency, the result would be that in a future crises nobody would be willing to come forward to • D' render similar assistance to the State. If, when faced with difficul- ties in maintaining a service, and particularly an essential service, the State wants to overcome those difficulties and to ensure that a similar situation does not arise in the future, it is open to the State to do so by motivating people to come forward and render aid to the State by making them feel that if they do so, they would E receive a reward. Such motivation would be brought about by rewarding those who have rendered such services in the past. Giving a preferential right in recruitment would be both a reward _, for past services of this kind and an incentive to others to come forward and render similar assistance to the State in the future. F It cannot, therefore, be said that the action of the State in giving a reward which would at the same time be an incentive to others has no rational basis with the objective sought to be achieved by the concerned legislation. Jn fact the employment of such persons by giving them preference in recruitment would be conducive to the maintenance and smooth functioning of an essential service in the future. As the long title and heading of section 4 of U.P. Ordi- G nance No.10 of 1978 as also of U.P. Ordinance No.22of1978 show. Its object was to absorb in recognized institutions those teachers who had come to the assistance of the State during the period of the indefinite strike called by the Sangh. It was thus a reward to those teachers for the services rendered by them and an incentive to others to render similar service in the future. The board ··~ objective of the Intermediate Education Act is to have a proper

PRABODH VERMA v. U.P. STATE (Madon, J.) 257 system of High School and Intermediate Education in the State of A Uttar Pradesh and any action taken by the State to keep this system functioning would be in furtherance of this objective and would have a rational nexus with the objective of ·the Intermediate Education Act. Ordinances Nos.JO and 22 of 1978 would thus fall in the category ofsuch action taken by the State and wouid:' therefore, be in furtherance of the objective sought to be ac_hieved B by tlie Intermediate Education Act.

J The reserve pool teachers thus formed a separate and distinct ' class from others applicants for the posts of teachers in recognized institutions. The differentia which distinguished the class of c reserve pool teachers from the class of other applicants for the posts of teachers in recognized institutions is the service rendered by the reserve pool teachers to the State and its educational system in a time of crises and this differentia bears a reasonable and rational nexus or relation to the object sought to be achieved by Ordinance Nos. IO and 22 of 1978 read with the Intermediate D Education Act, namely, to keep the system of High School and Intermediate Education in the State functioning smoothly without interruption so that the students may not suffer a detriment. Those two classes of persons, namely, the class of reserve pool teachers and the class of other applicants for the posts of teachers in the E recognized institutions, are not similarly circumstanced and, therefore._ there cannot be .any question of giving these iwo classes of persons equality of opportunity in matters relating to employ- ment guaranteed by Article 16(1) of the Constitution. Thus, neither Article 14 nor Article 16(1) of the Constitution was viola- ted by the provisions of either U.P. Ordinance No.IO of 1978. or F U.P. Ordinance No.22 of 1978

In our opinion, the High Court was in error in holding that U.P. Ordinance No.22 of 1978 was void on the ground that its provisions infringed Articles 14 and 16(1) of the Constitution. If U.P. Ordinance No.22 of 1978 was not void, equally U.P. Ordi- G nance No 10 of 1978 was not void on this ground. Those teachers from the reserve pool who had beed appointed in pursuance of either of these two Ordinances were thus validly appointed and their services could not have been terminated on the ground,that their appointments were contrary to law. The afore said order dated May 21, 1979, of the Government of Uttar Pradesh and the aforesaid order of the Adclitional Director of Education, Uttar H

258 SUPREME COURT REPORTS [1985] l S.C.R. A Pradesh, dated May 29, 1979, addressed to all the District Inspe- ctors of Schools in Uttar Pradesh, directing that th~ services of those reserve pool teachers who had been appointed could not be continued and that no . weightage should be given to the reserve pool teachers in making future appointments were, therefore, bad in law. Consequently, the termination of the servic'es of those reserve pool teachers who had already been appointed was also bad in law. The Sangh's case was wrongly decided by the High Court and requrires to be overruled. The judgments under appeal must, therefore, be reversed and the Appeals and Writ Petitions before us allowed. ( c The question which remains to be considered is the relief to which the reserve pool teachers are entitled. No difficulty arises in the case of those reserve pool teachers who were already appo- inted prior to the judgment of the High Court in the Sangh's case and whose services were thereafter terminated and who have D• continued to be in service by reason of the stay orders passed by • the High Court or this Court. They are entitled to continue in service. They were, however, appointed on probation for a period of one year and in the ordinary course they would have been confirmed long back. No such confirmation has, however, taken, place by reason of the judgment of the High Court in the E Sangh's case. We have held that the Sangh's case was wrongly decided. These reserve pool teachers have, therefore, suffered by reason of a wrong judgment given by the High Court and'they are entitled to have the wrong done to them rectified. It has not been alleged that any of them was or is unfit to be confirmed. In our opinion, each of them should, therefore, be deemed to be confir- F med in the post to which he or she was appointed from the date on which he or she would have completed his or her period of probation in the normal and usual course.

Different considerations, however, arise with respect to G those reserve pool teachers who were not appointed to the post which had fallen vacant. By the interim order made in the writ petitions filed to challenge the vires of U.P. Ordinance No.IO of 1978, the operation of that Ordinance was stayed but it was. directed that such stay would not affect appointments already made. A similar interim order was passed in the Sangh's petition. No appointment of any reserve pool teacher was, therefore, made ff durin~ the pendency of the sajd int~rim orders or after the decisiQI!

PRABODH VERMA v. U.P. STATE (Madon, J.) 259

of the High Court in the Sangh's case. On behalf of these reserve pool teachers it was submitted that U.P. Ordinance No.IO of 1978 was replaced by U.P. Oadinance No.22 of 1978 and that such repeal did not affect rights which had already accrued to them and had become vested in them under U.P. Ordinance No.JO of 1978. It was further submitted that in any event if this Court holds U.P. Ordinance No. 22 of 1978 to be valid those reserve pool teachers who had not been appointed had also acquired a vested right to be so appointed under that Ordinance. It was stated that after the decision in the Sangh's case the Governor of Uttar Pradesh had withdrawn U.P. Ordinance No.22 of 1978 under sub- clause (b) of clause (2) of Article 213 of the Constitution and that assuming that this Ordinance was not so withdrawn, it had ceased to operate at the expiration of the period specified in sub-clause (a) of clause (2) of Article 213 and that in either events the effect was the same as if that.Ordinance had been repealed, In this connec- tion relience was placed upon sections 6 and 30 of the U.P. General Clauses Act, 1904. We have already seen that under section 30 c the provisions of U.P. General Clauses Act apply to Ordinances promulgated by the Governor of Uttar Pradesh under Article 213 of the Constitution. Section 6 deals with the effect of repeal of an enactment and it provides that wh~re any Act repeals any enact- ment, then, unless a different intention appears, the repeal shall not inter a/ia affect any right acquired under the enactment so repealed. On the basis of these sections it was submitted that the effect of the Governor withdrawing an Ordinance under Article 213(2)(b) of the Constitution and the effect of an Ordinance ceasing to operate under Article 213(21(a) of the Constitution are the same as the effect of the repeal of an Act and section 6 of the F U.P. General Clauses Act, therefore, applies in both these cases.

The record is not clear whether U.P. Ordinance No. 22 of 1978 was in fact withdrawn by the Governor under Article 213 (2) (bl of the Constitution nor has any notification to that effect been broughi to our notice. · It is, however, unnecessary to consider the G above submissions as. in our opinion, it is immaterial whether U.P. Ordinance No. 22 of 1978 was withdrawn by the Governor or had ceased to operate because, according to us, what is involved here is a far more vital and important principle. Undoubtedly, a teacher in the reserve pool had a right under U.P. Ordinance No. 10 of 1978 as also under U.P. Ordinance No. 22 of 1978 to be appointed to a substantive vacancy occurring in the post of a teacher i~ a H

260 SUPREME COURT REPORTS [1985) l S.C.R.

recognized institution which was to be filled by direct recruitment. The Explanation to section 4 of both the Ordinances is not relevant for this purpose for all that was provided by it was that no teacher in the reserve pool was entitled to claim an appointment to a post . which he had joined during the period of the strike or to any post carrying the same or a higher grade. What this Explanation meant .B was that no reserve pool teacher could claim that he should be appointed to the identical post which he had held during the period of the strike or to such post either in the same recognized institu- tion or in any other recognized institution whether it carried the same grade or a higher grade. What is required to be noted is that the right which these teachers had under Ordinance No. IO of 1978 continued under U.P. Ordinance No. 22 of 1978 because that Ordinance came into force with retrospective effect from June 24, 1978, that is, the date on which U.P. Ordinance No. JO of 1978 was promulgated and by section 8 of U.P. Ordinance No. 22 of 1978 which repcale~d U.P. Ordinance No. 10 of 1978 it was expressly D provided that anything done or any action taken under U.P. Ordi· nance No. 10 of 1978 should be deemed to have been done or taken under U.P. Ordinance No. 22 ofl978 as if U.P. Ordinance No. 22 of 1978 were in force at all material times. The register of resene pool teachers maintained under U.P. Ordinance No. 10 of 1978 must, therefore. be deemed to be a register of reserve pool E teac11ers to be maintained under U.P. Ordinance No. 22 of 1978. As appears from the judgment of the High Court in the Sangh's case. as against 2.257 reserve pool teachers there were at that time 2, 740 substantive vacancies in recognized institutions. These vacancies were required to be filled by direct recruitment. This fact is not disputed before us. But for the orders of the High F Court, all reserve pool teachers would therefore, have been appoin- ted in accordance with the provisions of either U.P. Ordinance. No. 10 of 1978 or U.P. Ordinance No. 22 of 1978. They could not be so appointed by reason of the interim orders passed by the Allahabad High Court and the judgment of that High Court in the Sangh's case. Where a court has passed an interini order which has resulted in an injustice, it is bound at the time of the passing of the final order, if it takes a different view at that time, to undo that injustice as far as it lies within its power. Similarly, where an injustice has been done by the final order of a court, the/ superior conrt, if it takes a different view, must, as far as lies within its power, seek to undo that injustice. Great prejudice has been suffered and injustice done to those reserve pool teachers who had not been appointed to substantive v~cancies whicjl bad O\:Curred ill

PRABObH VERMA 1'. b.P. STATE (Madon, i.) 261

the posts requiring to be filled by direct recruitment. Since we have held that the Sangh's case was wrongly decided, it is our duty to undo this injustice. There are, however, certain difficulties in directing these teachers to be appointed from the dates on which they would have been respectively appoioted but for the orders of the High Court because those vacancies have already been filled and in all likelihood those so appointed have been confirmed in B their posts and ought not to b.~ now thrown out therefrom for no fault of theirs. In view of this fact we feel that it would be in con- sonance with justice and equity and fair to all parties concerned if the remaining teachers in the reserve pool are appointed in accor- dance with the provisions of U.P. Ordinance No. 22 of 1978 to substantive vacancies in the posts of teachers in recognized institu- c tions which are required to be filled by direct recruitment as and when each such vacancy occurs.

What we have said above will apply equally to those reserve pool teachers whose services were terminated and who had not filed 0 • any writ petition or who had filed a writ petition but had not suc- ceeded in obtaining a stay order as also to those reserve pool teachers who had hot been appointed in view of the interim ·orders passed by the High Court and thereafter by reason of the judgment of the High Court in the Sangh's case and who have not filed any writ petition. E

To summarize our conclusions :

(I) A High Court ought not to hear and dispose of a writ petition under Adele 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as F respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties. G (2) The Allahabad High Co:\ft ought not to have proceeded to hear and dispose of Civil Miscellaneous Writ No. 9174 of 1978- Uttar Pradesh Madhyamik Shikshak Sangh and Others v. State of Uttar Pradesh and Others-without insisting upon the reserve pool teachers being made respondents to that writ petition or at least some of them being made respondents thereto in a representative capacity as the number of the reserve pool teachers was too large H

262 SUPREME COURT REPORTS [1985) J S.C.R.

A and, had the petitioners refused to do so, to dismiss that writ petition for nonjoinder of necessary parties.

(3) A writ of certiorari or a writ in the nature of certiorari cannot be issued for declaring an Act or an Ordinance as unconsti- tutional or void. A writ of certiorari or a writ in the nature of B certiorari can only be issued by the Supreme Court under Article 32 of the Constitution and a High Court under Article 226 of the Constitution to direct inferior courts, tribunals or authorities to transmit to the court the record of proceedings pending therein for scrutiny and, if necesrnry, for quashing the same. c (4) Where it is a petitioner's contention that an Act or Ordi- nance is unconstitutional or void, the proper relief for the petitioner to ask is a declaration to that effect and if it is necessary, or thought necessary to ask for a consequential relief, to ask for a writ of mandamus or a writ in the nature of mandamus or a direction, order or injunction restraining the concerned State and its officers from enforcing or giving effect to the provisions of that Act or Ordi- • nance.

(5) Though a High Court ought not to dismiss a writ petition on a mere technicality or because a proper relief has not been asked for, it should not, therefore, condone every kind of laxity, parti- cularly where the petitioner is represented by an advocate.

(6) The Allahabad High Court, therefore, ought not to have proceeded to hear and dispose of the said Civil Miscellaneous Writ No. 9174 of 1978 without insisting upon the petitioners amending the said writ petition and praying for proper reliefs.

(7) By reason of the provisions of section 30 of the General Clauses Act, 1897, read with clauses (54) and (61} of section 3 thereof, it would not be wrong phraseology, though it may sound inelegant, to refer to a provision of an Ordinance promulgated by the President under Article 123 of the Constitution or prior to the coming into force of the constitution of India, by the Governor-General under the Indian Councils Act, 1861, or the Government of India Act, 1915, or the Government of India Act, 1935, as "section" and to a sub-division of a section, numbered in round brackets, as sub-section".

PRABOD!i VERMA v. u·p, STATE (Madoll, J.) 263 (8) Similarly, by reason of the provisions of section 30 of the A ' Uttar Pradesh General Clauses Act, 1904, read with clauses (40) and (43) of section 4 thereof, it would not be wrong phraseology, though it may sound inelegant, to refer to a provision of an Ordi· nance promulgated by the Governor of Uttar Pradesh undr Article 213 of the Constitution or prior to the coming into force of the B Constitution of India, by the Governor of the United Provinces under the Government of India Act, 1935, as "section" and to a / sub-division of a section, numbered in round brackets, as "sub·sec- ~ tion''.

(9) Neither the Uttar Pradesh High Schools and Intermediate c Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance ' No. JO of 1978), nor the Uttar Pradesh High Schools and Jntermidi· ate Colleges (Reserve Pool Teachers) Second) Ordinance, 1978 (U.P. Ordinance No. 22 of 1978), infringed Article 14 or Article 16(1) of the Constitution or was unconstitutional or void' . . D • (IO) The reserve pool teachers formed a separate and distinct class from other applicants for the posts of teachers in recognized institutions.

(I I) The differentia which distinguished the class of reserve pool teachers from the class of other applicants ·for the posts of E teachers in recognized institutions was the service rendered by the reserve pool teachers to the State and its educational system in a time of crisis.

(12) The above differentia bore a reasonable and rational nexus or relation to the object sought to be achieved by U ,P. Ordina· F nces Nos. 10 and 22, of 1978 read with the Intermediate Education Act, 1921, namely, to keep the system of High School and Interme- diate Education in the State of Uttar Pradesh functioning smoothly without interruption so that the students may not suffer a deteri· ment. G (13) The preferenti~l treatment in the matter' of recruitment to the posts of teachers in the recognized institutions was, therefore not discriminatory and did not dffend Article 14 of the Constitu- tion.

(14) As the above two classes were not similarly circumstan· ced, there could be noquestion of these classes of persons being H

264 SUPREME COURT REPORTS [1985] I S.C.R.

A entitled to equality of opportunity in matters relating to employ- ment guaranteed by Article 16(1) of the Constitution and the prefe- rential treatment given to the reserve r0ol teachers was, therefore not.violative of Article 16(1) of the Constitution. • B (15) The case of Uttar Pradesh Madhymik Shikshak Sangh and Others v. State of Uttar Pradesh and Others was wrongly deci- ded by.the Allahabad High Court and requires to be overruled,

· (16) The termination of !hr. services of. the reserve pooi tea- [ chers following upon the judgment of the Allahabad High Court c . was contrary to law and the order dated May 21, 1979 of the Gove~ renment of Uttar Pradesh and the order dated May 29, 1979,. of the Additional Director. of· Education, Uttar Pradesh, were also bad in law.

(17) Each of the reserve pool teachers had a righi under U.P. D Ordinance No. IO of 1978 as also under U.P Ordinance No. 22 of 1978 to be appointed to a substantive vacan~y occuring in the post of a teacher in a recognized institution which was to be filled by direct recruitment. ·

E . . (18) Each of the reserve pool teachers who had already been ·~ppointed and was. continuing in service by_rea~on ·of the stay or· · ders passed either by the Allahabad High Court or by this Court is entitled to continue in service and to be confirmed in the post to which he or she wa3 appointed with effect from the date on which 'he or she would have been confirmed in the normal and usual course.

'·. · (19) Those reserve pool teachers who ·were not appointed as provided by U.P. Ordinance No. IO of 1978 or U.P. ·Ordinance ·No. 22 of 1978 were not so appointed because of the interim orders passed by the Allahabad High Court and the judgment of the High Court in the Sangh's case. In view of the fact that this Court has held that the Sangh's case was wrongly decided by the . High Court, the injustice done to these reserve pool teachers requires to be ·-.......undone.

(W) In view of the fact that the vacancies to which these rese~ '· rve pool teachers would have been appointed have already been ;, H filled and in all likelihood those so appointed have been confirmed

PRABODH VERMA v. !J.P. STATE (Madon, j_) 265 in their posts, to appointed these reserve pool . teachers with effect from any restrospective date would be to throw out the present incumbents from theic jobs for no fault of theirs. It will, therefore, be in consonance with justice and. equity and fair to all parties con- cerned if the _remaining reserve pool teachers are appointed in accordance with the provisions of U.P. Ordinance No. 22of1978 to substantive vacancies occuring in the posts of teachers in r_ecogni- ed institutions which are to be filled by direct recruitment as and when each such vacancy occurs.

(21) This will equally apply to those reserve pool teachers whose services were terminated and who had not filed any writ peti- c tion' or who had filed a writ petition but had not succeeded in obt- taining a stay order, as also to those reserve pool teachers who had not been appointed in view of the interim orders passed by the High Court and thereafter by reason of the judgment of the High Court in the Sangh's case and who have not filed any writ petition. D

For the reasons mentioned above, we allow these appeals, reverse the judgments apealed against and set aside the orders, under appeal, and allow these Writ petitions and make the rule issued in each of the absolute. We overrule the .judgment of the Allahabad High CJurt in the case of Uttar Pradesh Madhyamik E Shikshak Sallgh and Others_ v, State of Uttar Pradesh and Others, and in these appeals and Writ Petitions we pass further orders as follows

I. We declare the orders of termination qf the services of F reserve pool teachers to be contrary to law and we qaash and set aside the said orders as also the order da- ted May 21. 1979, of the Government of Uttar Pradesh and the order dated may 29, 1979, of the Additional Direc- tor of Education, Uttar Pradesh , and all other orders, if any, to the same effect. G

2Copy pinpoint2. We direct that each of the reserve pool teachers who had already been appointed and was continuing in service by reason of the stay orders given either by the Allahabad High Court or by this Court is entitled to continue in service and is entitled to be confirmed in the post to which he or she was appointed with effect from the date H

.266 SU!'Rl!ME COURT kEPokt [i985J 1 S.C.k• A on which he or she would have been confirmed in the normal and usual course. ··'

3Copy pinpoint3. We further direct that the remaining teachers in the re- serve pool be appointed in accordance with the provi- B sions of the Uttar Pradesh High Schools and Intermediate Colleges (Reserve pool Teachers). (Second) Ordinance 1978 (U.P. Ordinance No. 22 of 1978), to substentive vacancies in the posts of teachers in recognized institu- tions which are required to be filled by direct recuitment . as and when each such vacancy occurs. c

4Copy pinpoint4. This direction will apply to those reserve pool teachers whose services were terminated and who had not filed any writ petition or who had filed a writ petiton but had not sncceeded in obtaining a stay order, and to ·those reserve pool teachers who had not been appointed in D view of the interim orders passed by the High Court and thereafter by reason of the judgment of the High Court in the Sangh's case and who have not filed any writ petition.

E Before we part with these Appeals and writ Petitions we would like to mention that in some of these writ petitions the only relief claimed is in general and vague terms. We reproduce that prayer, retaining its errors of grammar and syntax. That prayer is as follows :

F It is, therefore, prayed that this Hon'ble Court be pleased to issue such writ, order or directions for the en- forcement of the fundamental rights of the petitioner as are deemd fit and reasonable by this Hon'ble Court and to grant such other relief to the petitioner as is deemed fit and reasonable for the redress of their grievance." G ln the light of what we have said above about the defective prayer in the writ petition filed by the Sangh in the Allahabad High Court, we ought to insist upon these petitioners setting their house in order by amending the prayer clause and asking for proper re- liefs. These Petitions are drafted by Advocates. It is true that these petitioners are poor and it must not have been possible for them H

PJ\ABODH VERMA v. U.P. STATE (Madon, J.) 267 to pay substantial fees to their advocates but that cannot be a rea- A son for an ad,vocate who undertakes a client's case not to give of his best to his client. An adocate should not measure the quality of work he will put into a case by the quantum of fees he receives. Our insisting upon these petitions being so amended would, how- ever, involve delay and as some of these petitioners are reserve B pool teachers who were not appointed by reason of the interim orders passed by the Allahabad High Court and the judgment of that High Court in the Sangh's case, it would result in further hardship ,j to them by delaying their employment. We have, therefore, not insisted upon these writ petitions being so amended but passed in • these writ petitions also the order set out above. a So far as the costs of these Appeals and writ petitions are concerned, it would not be fair to make the State pay such costs because that would be to penalize the State for respecting the judg- ment of the High Court by not filling an appeal against it. • It would equally be not fair to penalize the committee of Manag- D ment of recognized institutions because they only acted under the directions of the State Governm~nt to terminate the servicies of reserve pool teachers. The party which ought properly to pay the costs of these Appeals and writ petitions is the Uttar Pradesh Madhyamik Shikshak Sangh. In view, however, of the fact that during the course of h'earing of these Appeals and writ petitions, B the reserve pool teachers or a large majority of them including the Appellants and petitioners have become members o~ this Sangh to direct the Sangh to pay the costs would be to create bad blood bet- ween the Sangh and some of its members. A fair order of costs would, therefore, be that so far as the Appeals are concerned the F parties should bear and pay their own costs throughout and that so far as the writ petitions are concerned the parties should bear and pay their own costs thereof; and we order. accordingly.

H.S.K. Petitions and Appeals allowed.