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2008 DIGILAW 2375 (ALL)

DAYA SHANKER PANDEY v. STATE OF U. P.

2008-12-01

S.RAFAT ALAM, SUDHIR AGARWAL

body2008
JUDGMENT By the Court.—The special appeal has been restored to its original number vide order of date passed on restoration application. As requested by learned counsel for the parties, the special appeal is taken up for hearing and is being disposed of finally at this stage. 2. Sri A.N. Tripathi, learned counsel for the appellant contended that the vacancy in question was for short term and, therefore, it was not required to be advertised in two daily newspapers. Placing reliance on Section 16-E(11) of U.P. Intermediate Education Act, 1921 (hereinafter referred to as the “1921 Act’) and Regulation 9(1) Chapter II of the Regulations framed thereunder he contended that the aforesaid provision commences with non-obstante clause and, therefore, have overriding effect. They do not require that a short term vacancy i.e. leave vacancy shall be referred to selection committee. Meaning thereby that there is no selection, hence no advertisement. He submitted that when the requirement of reference to selection committee has been dispensed with, it automatically results in the inference that the vacancy need not be advertised in the newspapers and submitted that the Hon’ble Single Judge has erred in law in holding otherwise relying on the Full Bench decision in Radha Raizada v. Committee of Management, 1994 (2) ESC 345. He also contended that the aforesaid two provisions namely Section 16-E(11) of the Act and Regulation 9(1) Chapter II have not been considered in Radha Raizada (supra), therefore, the said judgment needs to be reconsidered by a Larger Bench. He lastly contended that in fact a short term vacancy is not a vacancy at all inasmuch as holder thereof continue to maintain lien on the post and, therefore, the procedure prescribed for appointment on regular basis would have no application to a short term vacancy. 3. Learned counsel for the appellant placing reliance on a Division Bench decision of this Court in State of U.P. and another v. Sudha Chaturvedi (Smt.) and another, 2004(3) UPLBEC 2965, contended that the Division Bench has already held the judgment of Hon’ble Single Judge in appeal before this Court erroneous and, therefore, the appeal is liable to be allowed in any case. 4. Having given our anxious thoughts to the aforesaid submissions we however, do not find substance in any of the aforesaid submissions. 5. 4. Having given our anxious thoughts to the aforesaid submissions we however, do not find substance in any of the aforesaid submissions. 5. Section 16-E(11) of 1921 Act reads as under : “16-E(11) Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, termination or otherwise of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to the such conditions as may be prescribed: Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made.” 6. A perusal of Section 16-E(11) of the Act shows that though it has a non-obstante clause but that would prevail over the various sub-sections of Section 16-E of 1921 Act and not to the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the “1982 Act”). On the contrary, 1982 Act has overriding effect over any provision of 1921 Act and regulations framed thereunder to the extent they are contrary to 1982 Act. Section 16 of 1982 Act reads as under : “16. On the contrary, 1982 Act has overriding effect over any provision of 1921 Act and regulations framed thereunder to the extent they are contrary to 1982 Act. Section 16 of 1982 Act reads as under : “16. Appointment to be made only on the recommendation of the Board.—(1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C, 33-D and 33-F, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the Management only on the recommendation of the Board : Provided that in respect of retrenched employees the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply : Provided further that the appointment of a teacher by transfer from one Institution to another may be made in accordance with the regulations made under clause (c) of sub-section (2) of Section 16-G of the Intermediate Education Act, 1921 : Provided also that the dependent of a teacher or other employee of an Institution dying in harness who possesses the qualifications prescribed under the Intermediate Education Act, 1921, may be appointed as teacher in Trained Graduate’s Grade in accordance with the regulations made under sub-section (4) of Section 9 of the said Act. (2) Any appointment made in contravention of the provisions of sub-section (1) shall be void.” 7. A perusal of Section 16 clearly shows that it further provides that any appointment made in contravention of sub-section (1) of Section 16 shall be void. Further Section 32 of 1982 Act also provides that provisions of 1921 Act and the regulations in so far as they are not inconsistent with the provisions of 1982 Act or the Rules or Regulations made thereunder shall be continued to be enforced, meaning thereby that by no stretch of imagination the provisions of 1982 Act can be said to be subservient to 1921 Act or the regulations framed thereunder. The 1982 Act has been given overriding effect over any of the provisions inconsistent thereto of 1921 Act. That being so, for the purpose of procedure of recruitment we have to consider 1982 Act and not 1921 Act. The 1982 Act has been given overriding effect over any of the provisions inconsistent thereto of 1921 Act. That being so, for the purpose of procedure of recruitment we have to consider 1982 Act and not 1921 Act. The Full Bench of this Court in Radha Raizada (supra) has also found that 1982 Act has overriding effect over 1921 Act to the extent it contains inconsistent provisions. The Full Bench in Radha Raizada (supra) after going through the provisions of 1982 Act and the Removal of Difficulties Orders issued thereunder came to the conclusion that a vacancy whether short term or regular has to be advertised in two daily newspapers and, therefore, the aforesaid view would not stand otherwise affected in any manner by Section 16-E(11) of 1921 Act since the later Act would override the earlier one. Even otherwise, 1982 Act is a special Act. The Apex Court in the case of Tata Motors Ltd. v. Pharmaceutical Products of India Ltd. and another, JT 2008(9) SC 227, held that the provisions of a special Act will override the provisions of a general Act. A later of it will override an earlier Act. 8. Further when a vacancy is to be filled in by direct recruitment and salary has to be paid by the State Exchequer the compliance of Article 16 of the Constitution of India has to be observed otherwise direct recruitment by private arrangement or without making vacancy available to public at large would be violative of Article 16 of the Constitution. In the circumstances it cannot be said that the view taken by Hon’ble Full Bench needs reconsideration and it is binding on this Court. 9. However, after going through para 12 of the judgment of Division Bench we find that Division Bench has endorsed its disagreement with the finding that the appointment of petitioner could not be continued beyond 25.1.1999 since on that date the Removal of Difficulties Orders were rescinded by Section 33-E of 1982 Act and to that extent the finding has been disagreed by the Division Bench. 10. The Division Bench in Sudha Chaturvedi (supra), however, has not gone through the other aspect of the matter which has been considered by the Hon’ble Single Judge in the judgment under appeal and, therefore, it cannot be said that the entire judgment stands superseded by the Division Bench decision in Sudha Chaturvedi (supra). 10. The Division Bench in Sudha Chaturvedi (supra), however, has not gone through the other aspect of the matter which has been considered by the Hon’ble Single Judge in the judgment under appeal and, therefore, it cannot be said that the entire judgment stands superseded by the Division Bench decision in Sudha Chaturvedi (supra). Here while considering the appeal against the judgment of Hon’ble Single Judge we are also bound to consider as to whether the view taken by the Hon’ble Single Judge that the petitioner-appellant is not entitled for any relief, is correct or not and whether the writ petition has rightly been dismissed. It is well settled that if the appellate Court finds the ultimate decision and conclusion drawn by the Hon’ble Single Judge to be correct though may be for different reasons, it can pass the order accordingly and need not to set aside the judgment of Hon’ble Single Judge merely because some of the reasons given by the Hon’ble Single Judge do not find favour in appeal or in some other judgment of Larger Bench. 11. The further submission that short term vacancy is not a vacancy at all as the incumbent holds lien is mentioned to be rejected, being thoroughly misconceived. The short term vacancy and a regular vacancy is different in the matter of tenure but otherwise it is a vacancy. If a vacancy has occurred for a short tenure, it cannot be said that there is no vacancy at all. Further, if this contention is accepted, then appellant himself could not have been appointed at all even for short term since in his own words there was no vacancy. The submission, therefore, is thoroughly fallacious and is rejected. 12. In the case in hand we find that the very appointment of appellant was illegal having not been made following the procedure prescribed in the Second Removal of Difficulties Order, therefore, the relief sought by him could not have been granted and, therefore, we do not find any error in the judgment of Hon’ble Single Judge. The special appeal lacks merit and is accordingly dismissed. 13. It is however, made clear that this judgment will not deprive the appellant from taking steps as permissible in law for claiming salary from the management. ————