Karuna Malviya v. Regional Inspectors Of Girls Schools, Varanasi Region, Varanasi
1988-11-02
R.K.GULATI, S.K.DHAON
body1988
DigiLaw.ai
JUDGMENT : S. K. Dhaon, J. 1. The petitioner is an ad hoc teacher in the Harish Chandra Balika Vidyalay, Maidagin, Varanasi (here-in-after referred to as the Vidyalaya. On 23rd July 1986, the Regional Inspectress of Girls Schools, Varanasi region, Varanasi (hereinafter referred to as the Regional Inspectress) passed an order purporting to be under sub-section (4) of Section 21-B of the U. P. Secondary Education Services Commission and Selection Boards Act, 1972 (hereinafter referred to as the Act) directing that Smt. Madhubala Singh, the respondent no. 2. a "reserve pool teacher" should be appointed as a teacher in the C. T. Grade in the Vidyalaya. The natural consequence of the implementation of this order would be that the appointment of the petitioner as an ad hoc teacher would come to an end. Hence this petition. 2. Affidavit have been exchanged between the parties. The petition is ripe for hearing. It has not been admitted as yet. However, with the consent of the learned counsel for the parties we are proceeding to dispose of the same finally. The material facts which have emerged after the exchange of affidavits are these. Smt. Madhubala Singh was at the relevant time and is even today registered as a "reserve pool teacher" in the district of Varanasi. On 28th June, 1986, the Regional Inspectress passed an order directing Smt. Singh to join as a teacher in a certain institution at Mirzapur. It was made clear that if she did not carry out the order within a period of one week she will forego her right to be appointed as a teacher. On 23rd July 1986, the Regional Inspectress cancelled her earlier order dated 28th June, 1986 and it appears that on the same day she passed the impugned order. 3. The question is, did the Regional Inspectress have any jurisdiction to pass the impugned order when Smt. Madhubala Singh failed to join the institution at Mirzapur within a week from 28th June, 1986 ? For answering this question the relevant provisions of Chapter IV-A of the Act, which had been inserted by an Act of the Uttar Pradesh Legislature in the year 1985, may be read. 4. In section 21-A (a) the "Director" is defined to mean the Director of Education, Uttar Pradesh and includes any other officer authorised by him in that behalf.
For answering this question the relevant provisions of Chapter IV-A of the Act, which had been inserted by an Act of the Uttar Pradesh Legislature in the year 1985, may be read. 4. In section 21-A (a) the "Director" is defined to mean the Director of Education, Uttar Pradesh and includes any other officer authorised by him in that behalf. In section 21-A (b) it is provided that the expressions "inspector", "Institution", "Management" and 'teacher" shall have the meanings respectively assigned to them under the U. P. High School and intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as the U. P. Act of 1971). Section 21-B of the Act provides, inter alia, that the inspector shall maintain in the prescribed manner a register of "reserve pool teacher" consisting of subjectwise lists of persons who were appointed as teachers in any institution situated in the district, either by the management or by the Inspector. Sub-section (2) of Section 21-B has no relevance to the present controversy. Sub-section (3) provides that where any substantive vacancy in the post of a teacher in an institution is to be filled by direct recruitment, such post at the instance of the inspector be offered by the management to a teacher other than a teacher referred to in sub-section (2), whose name is entered in the register referred to in sub-section (1). Sub-section (4) says that if any teacher is offered appointment in accordance with the provisions of sub-section (3) and he fails to join the post within the time allowed therefor, which shall not be less than seven days, his name shall be removed from the register referred to in sub-section (1), and the appointment shall be offered to the next "reserved pool teacher" of the same district in the subject. Sub-section (5) provides that if such other teacher to whom offer of appointment is made also fails to join, then the same process shall be repeated until the list of "reserve pool teachers" of that district in the subject is exhausted. Sub-section (6) lays down that no appointment of any teacher to an institution shall be made under section 16 until the list of "reserve pool teachers" of that district in the subject concerned is exhausted in accordance with sub-section (5). The Explanation of section 21-B is also relevant.
Sub-section (6) lays down that no appointment of any teacher to an institution shall be made under section 16 until the list of "reserve pool teachers" of that district in the subject concerned is exhausted in accordance with sub-section (5). The Explanation of section 21-B is also relevant. Sub-section (1) of section 21-C provides that where the vacancies available for teaching in any subject are less than the number of "reserve pool teachers" available for appointment in any district, or where it is otherwise necessary or expedient so to do, the Director may, notwithstanding anything contained in section 21-B direct that the name of any such teacher be excluded from the register maintained in one district and be included in the register maintained in another district. Sub-section (2) of section 21-C provides that where the name of a "reserve pool teacher" is included in the register of another district in accordance with the provisions of sub-section (1), the provisions of section 21 B shall mutatis mutandis apply to such a teacher, except that the requirement of service as a teacher in such district shall not be necessary. It is not in dispute that the name of Smt. Madhubala Singh was entered in the register referred to in sub-section (1) of section 21-B. It is also not in dispute that her name was entered in the register maintained for the district of Varanasi. It is nobody's case that the districts of Varanasi and Mirzapur are not separate and distinct from each other. It is also admitted that under the jurisdiction of the Regional Inspectress there were, on the relevant date, a number of districts including the districts of Varanasi and Mirzapur. In the U. P. Act of 1971 the expression "Inspector" is defined to mean, inter alia District Inspectress of Girls Schools or the Regional Inspectress of Girls Schools, as the case may be. It is thus apparent that on 28th June, 1986, the Regional Inspectress exercised the power of the "Inspector" within the meaning of sub-section (3) of section 21-B when she directed Smt. Madhubala Singh to join as a teacher in an institution at Mirzapur.
It is thus apparent that on 28th June, 1986, the Regional Inspectress exercised the power of the "Inspector" within the meaning of sub-section (3) of section 21-B when she directed Smt. Madhubala Singh to join as a teacher in an institution at Mirzapur. It is nobody's case that the Director of Education passed any order of transfer referred to in Section 21-C. On the first impression, it is apparent that the Regional Inspectress could not pass the order appointing Smt. Madhubala Singh as a teacher in an institution at Mirzapur in the absence of an order of transfer passed by the Director of Education in the purported exercise of power under section 21-C. 5. Sri G. C. Dwivedi, the learned Senior Advocate appearing for the petitioner, contended that, keeping in view the fact the Regional Inspectress exercised jurisdiction over the districts of Varanasi and Mirzapur, she could, even in the absence of any direction of the Director, while exercising power under sub-section (3) of section 21-B direct the appointment of Smt. Madhubala Singh as a "reserve pool teacher" in the district of Mirzapur. To buttress this submission learned counsel contended that whenever the Regional Inspectress purported to exercise powers under sub-section (3) of section 21-B the identity of the various districts under her jurisdiction or control as separate and distinct for the limited purpose of exercising power under the said sub-section stood obliterated and notionally and in the eye of law the entire area under her jurisdiction comprised one district so as to enable her to exercise jurisdiction. This submission cannot be accepted. We have already indicated that in sub-section (1) of section 21-B the emphasis is on "an institution situated in the district". The definite article "the" preceding the expression "district" signifies that the Legislature clearly intended to particularize that expression. To put it differently, the Legislature referred to one particular district. Sub-section (3) of section 21-B lays emphasis upon the name entered in the register referred to in sub-section (1) namely, the register maintained for one particular district. In sub-section (4) the intention is further clarified by the use of the words "of the same district". In sub-section (5) the words used are "that district".
Sub-section (3) of section 21-B lays emphasis upon the name entered in the register referred to in sub-section (1) namely, the register maintained for one particular district. In sub-section (4) the intention is further clarified by the use of the words "of the same district". In sub-section (5) the words used are "that district". Thus, there can be no escape from the conclusion that under sub-section (3) of section 21-B power can be exercised either by the Inspector or by the Regional Inspectress with respect to a "reserve pool teacher" whose name is entered in the register of a particular district. 6. In section 21-C power has been conferred upon the Director of Education to direct the name of any "reserve pool teacher" to be excluded from the register maintained in one district and to include the same in the register maintained in the other district. The legislature designedly used the language "notwithstanding anything contained in section 21-B". In section 21-B we have already seen that the name of a teacher can be included in the register maintained for one particular district alone. However, this can be given a go bye by the Director on the fulfilment of the condition enumerated in Sec. 21-C and the name of a particular teacher can be included in the register of the "reserve pool teacher" maintained in the other district. It is trite that a non obstante clause in an enactment gives an overriding effect to the provision contained therein over the other provisions of laws. Inspite of the provisions contained in section 21-B, the Director is empowered to exclude the name of a ''reserve pool teacher" from the register of one particular district and to include his name in the register of another district. IN other words, the action of the Director under section 21-G is immune from the attack on the ground that the same is contrary to the provisions of section 21-B. A person, whose name has been included in the register of another district under the direction of the Director, is not ipso facto appointed as a "reserve pool teacher" in that district. The Legislature has not clothed the Director with the power of appointment.
The Legislature has not clothed the Director with the power of appointment. Inspector's power in this behalf is kept intact and that is why under sub-section (2) of section 21-C it is provided that whenever the Director takes an action under sub-section (1) of section 21-C the provisions of section 21-B shall mutatis mutandis apply to such a person. For the appointment of such a person in the other district as "reserve pool teacher" it will be presumed that the name of such a person finds place in the register maintained by the Inspector for the other district. And the Inspector or the Regional Inspectress, as the case may be, shall have to exercise the power under sub-section (3) of section 21-B whenever any substantive vacancy in the post of a teacher in an institution is to be filled in by direct recruitment. Such is the effect of the expression mutatis mutandis as used in sub-section (2) of section 21-C as it is well settled that where a law directs that provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change be necessary, some change shall nevertheless be made. 7. IT is clear that in the absence of an order of the Director of Education under sub-section (1) of Section 21-C the Regional Inspectress could not have directed the posting of Smt. Madhubala Singh in the district of Mirzapur by her order dated 28th June, 1986. She acted without jurisdiction in doing so. Her order was non-est. Therefore, the question of Smt. Madhubala Singh joining at Mirzapur within one week from 28th June, 1988 did not arise. It follows that there is no infirmity in the order dated 23rd July, 1986, which being impugned in the present petition. It further follows that Smt. Madhubala Singh cannot be prevented from performing her duties as a teacher in the Vidyalaya concerned at Varanasi. 8. This petition fails. It is dismissed. The interim order dated 29th July, 1986, is vacated. There shall be no order as to costs. An oral prayer has been made for the grant of a certificate to prefer an appeal before the Supreme Court.
8. This petition fails. It is dismissed. The interim order dated 29th July, 1986, is vacated. There shall be no order as to costs. An oral prayer has been made for the grant of a certificate to prefer an appeal before the Supreme Court. The controversy raised in the petition neither involved the adjudication of a substantial question of law of general importance nor in our opinion the said question needs to be decided by the Supreme Court. The prayer is, therefore, rejected. Petition dismissed.