No Acts & Articles mentioned in this case
A 216
B
c
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PRABODH VERMA AND OTHERS, ETC.
v.
STATE OF UTTAR PRADESH AND OTHERS, ETC.
July 27, 1984
[V.D, TULZAPURKAR, V. BALAKRISHNA BRAD! AND
D.P. MADON, JJ.]
Constitution of India-Arts. 32 and 226-Writ of certiorari-Nature of
-Writ of certiorari cannot he issued for declaring an Act or Ordinance as
unconstitutional and void-Can only be issued to direct iliferior courts, tribu-"
na/.ii· or authorities to transmit to court the record of proceedings pending therein
for scrutiny
and, if
necessary, for quashing the same.
E Advocates Act, 1961-Professional conduct-Duty of an advocate 10
'·
client and, to court-What it.
Uttar Pradesh Hi'gh Schools and Intermediate Colleges (Reserve Pool
Teachers) Ordinance, 1978 (U.P. Ordinance No. 10of1978) and Uttar Pradesh
High Schools and Intermediate Colleges (Reserve Pool Teachers) (Serond)
Ordinance, 1978 (U.P. Ordinance No. 22 of 1978)-Validity of-Whether
violative of Arts. 14 and 16(1) of the Constitution-Held valid.
Interpretation-Provisions
of an Ordinance-Whether can be referred as
"section" end "sub-s~ction".
Procedure-.Write Petition under Art. 226 of the Constitution-Persons
likely to
be affected by the judgment-Necessary parties-Whether High Court G should dismiss writ petition for non·joinder of necessary parties.
H
Practice-Court not to dismiss writ petition on a mere technicality-But
inust not condone every kind of laxity-Court n1ust insist on proper relief being
asked/or. ·
Words and phrases-•Act' and 'Enactnient'-Meaning of.
•
PRABODH VERM~ V. U.P. SfATE 217
The educational institutions in the State of Uttar Pradesh are governed
by the Intermediate Education Act, 1912 (U.P. Act No. Il of 1921). Section
16-E of the Intermediate Education Act prescribed the procedure for selection
of teachers and heads of institutions. Under sub-s. (1) of section 16-E, the
teachers of an institution
are to be appointed by the Con1mittee of Manage·
rnent in the manner provided in the said
Section. Jn 1977 there were about
80,000 secondary teachers of recognised institutions and institutions managed
by local bodies. Out ·or them about 60,000 teachers were members of a regis
tered society na1nely, the Uttar Pradesh MadhYamik Shikshak Sangh (here
inaft~r referred to as "the Sangh"). On August 9, 1977 the Sangh submitted
a charter of demands to the State Government. As the Government did not
accept the demands, in response to a call given
by the
Sangh for an indefinite
strike about 90 per cent of the teachers in recognised ihstitutions went on an
indefinite strike fron1 December 2,
1977. As the service under
a recognised educational institution
was an essential service under
the
Uttar Pradesh Essential Services Maintenance Act, 1966 (U.P. Act
No. XXX
of 1966) the
State Governmint on December 2~, 1977 made and
published an order under
s. 3 (1) of that Act
pro~ibiting strikes in service
under educational instituticns. Further, on December
31, 1977, the Governor
of'Uttar Pradesh promulgated the
Uttar Pradesh High Schools and Interme
diate Colleges (Payment of Salaries of Teachers and Other Employees}
(Amendment) Ordinance, 1977 · (U.P. Ordinance No. 25 of 1977. The said
Ordinance amended s." 4 of the Uttar Pradesh High Schools and lntermediate
Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971
(U.P. Act No. 24 of 1971). The effect of the amendment was that the
Director
of Education, Uttar Pradesh, could, by general or special order,
direct any teacher who went or remained on or otherwise took part in any
strike which had been prohibited by an order under
s. 3 of the
U.P. Essential
Services Maintenance Act to resume duty by the day
or hour
Specified in the
order
and
upon the failure of the teacher to resume duty in response thereto
his contract of employment with the n1anagement became void with effect
from the day or hour specified in the direction contained in such order.
It was
also provided that the management or failing it the Inspector may
notwith
standing anything to the contrary contained in the Intermediate Education Act,
1921 .• or the Regulations for the the time being in force with respect to the mode
of selection, appointment' or approval of appointment, be competent to appoint
on temporary bas:s any person possessing the requiste qualifications for
dis
charging;:the duties of the post of any such teacher. By a notifica tior: issued on
the
sa1ne date the Director of Education in pursuance of s. 4 of the
U.P. Act
No. 24 of 1971 as amended by the said Ordinance No. 25 of 1917 directed the
teachers on strike or otherwise taking part in the strike prohibited under s.3
of the U.P. Essential Services Maintenance Act to resume duty by 11 A.M.
on January 5, 1978. A lagre number of teachers (2257) \'ho had gone on
strike did not resume duty. Accordingly their contacts of employment
became void
and in order to fill the posts, 2257 persons, including the
appel
lants and petitioners before this Court, possessing the requisile qualifications
for discharging the duties of the post of such teachers were appointed on
temporary basis between January 9, 1978 and January 19, 1978. Thereafter a
settlement took place between the striking teachers and the the Government
/j
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218 SUPREME COURT REPORTS [1985) 1 s.c.R.
and the services of the said 27.57 newly appointed teachers were terminated
and the U.P. Ordinance No. 2S of 1917 wiS withdraWn by l~c-Gov~fnor.
On June 24, 1978 the Governor of UUar Pradesh promulgated the Uttar
Pradesh High Schools and Intermediate Colleges (Reserve· Pool Teachers
Ordinance, 1978) (U.P. Ordinance No. JO of 1978). . The Ordinance provided
for the absorption of certain teachers in the institutions recognised : under the
Jutermediate Education Act. 192i •. \Vhenever one of the provisions of U.P.
Ordinance No. 10 of 1978 referred to another provision thereof, it used the
word "section'' or "sub·section" and not .. clause" or "sub-clause". -Section
2
of
U.P. Ordinance No. 10 of 1978 gave an overriding effect to the provisions
of that Ordinance notwithstanding anything. contained in thC Intermediate
. Edu.::ation Act or any other law for the time being in force. Section 4 of U .P.
Ordinance No. 10 of ·1978 was headed .. Absorption· of Reserve Pool
. Teachers·~. Sub·s. (1) of section 4 provided that the Inspector including any
other officer authorised by the Government to perform, all .or any of the run~
ctions of the Inspector should maintain in· the prescribed manner a register of
--"Res::rve Pool Teachers
0
consisting of persons who: were appointed .'as
· teachers in any recognised institution situated In· tne district: eithf:r. by the
management
or by the
Inspector· under sub·s. (4) Or section 4 of the U.P.
High ~chools and Intermediate ColJeges (Payment of Salaries of Teachers and
Other Employees) Act, 1971 while the said U.P. Ordinance No. 2S of 1977
was in force and who had actually joined their duties in pursuance of the said
-Provision between January 9, 1978 and January 19, 1978. Su!rs. (2) ofs~tion
4 of U.P. Ordinance No~ 10 of 1978 provided that where any substantive
vacancy
in the post of a teacher in an institution recognized by the Board-was
to
b.3 filled by dire::t recruitment, such post should at the instance of the
Inspector b~ offered by the management' to a teacher whose name was entered
in th: register referred to in sub·s. (1). Both before as_ well as aft.er the pro.
mulgation of U.P. OrdinanJe No. 10 of 1978 several vacancies occurred in
the post of teachers in recognized institutions which were to be filled by dir~ct
recruitment and for this purpose advertisements were given, application were
. received and applicants were called for interview. MeanwhiJ.!, the Insp.!C·
tors of schools were given instructions to make, appointments in pursuance of
: Ordinance No. 10 of 1~78. Pursuant to these directions, . the
. selections of the applicants were postponed .and some of the vacancies
'· were filled by appointing teachers from the reserve po?l as provided
by Ordinance . No •. JO of 1978. The U.P •. Ordinance No. 10
of 1978 could not be made into an Act. Under Article 213 (2) (a) of the
--c~nstitution-. U.P. Ordinance No. 10 of 1978 would have therefore ceased
-to operalo'on or about October 17, 1978. Meanwhile,· on 'October 7,
1978 the Governor of Uttar Pradesh promulgated the .iUttar Pradesh
High Schools and 'Intermediate Colleges (Reserve Pool Teachers) -(Second)
Ordinance, 1978 (U.P. Ordinance No. 22 of 1978). U.P. Ordinance No.
22 of· 1978 repealed U.P. -ordinance No. 10 of 1978 and was given
·retrospective ;effect on and from
June
24, 1978 (the date ofU.P. Ordi·
nance No. 10 of 1978), and it was also provided that notwithstanding
the repeal of U.P. Ordinance No. 10 of 1918, anything done or any action
taken under that Ordinance should be deemed to hav~ been done or taken
under U.P. Ordinance No. 22 _or 1978 as ir that Ordinance was in fore
•
,
at all meterial times.
which like the U .P.
PRABODH v. U. P. STATE 219
The provisions of U.P. Ordinance No. 22 of 1978,
Ordinance No. 10 of 1978 while referring to the
Provisions also used the word "section,, or· "sub~section", were in pari
materia with those of U.P. O:dinance No. ·10 of 1978. In pursuance of
U.P. Ordinance No. 22 of 1·978, directions were issued by the Secretary,
Education Department, Government of U.P. by a telex message dated
October 18, 1978, and in pursut!nce thereof by the Additional Dirccler of
Education, U.P. by a telex message dated October 19, 1978, to fill the
vacancies by making appointments from the reserve pool in·accordance
with the provisions of U.P. Ordinance No. 22 cf 1978. Thereafter some
more teachers from the reserve pool were appointed to the posts which had
fallen vacant and which were to be fi11ed by direct recruitment. Thereupon
the Sangh along with some of the applicants for the vacant posts filed
writ petition in th.e High Court (Civil Miscellaneous Writ No. 9174 of
1918-Uttar p, ade· h Madhya1nik Shikshak Sangh and Ors. v. Stat.: of Ultar
Prade.•h and Ors.) praying for a writ, order or direction in the nature of
Certiorari to call for record of the case and to quash U.P. Ordinance No.
22 of 1978 and the said telex n1cssages. In the said writ petition the
reserve pool teachers who had been appointed and were likely to be affected
if the judgment of the·High Court was in favour of the petitioners, were
not joined as parties
to the writ petition. The High Court held that
U.P.
Ordinance No. 22 c' '918 violated the provisions of Articles 14 and 16(1)
of the Constitution <JDd accordingly declared the Ordinance to be void and
A
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qua5bed the said telex messages. ·The State Government did not appeal E
against the judgment of the High Court but issued instructions to the effect
that the services of the teachers appointed from the res~rve pool could
not
be continued further and that the
posts should be filled a fresh by the
process of direct recruitment and
that no fresh appointment should be made
from
the reserve pool and no special weightage shouid be given to teachers
in the reserve pool in the matter of future appoinments.
Several teachers P
from the reserve pool whose services were so terminated filed writ petitions
in the High Court contending that tbe termination of their services was
illegal inasmuch as in respect of those who were appointr.d under U .P.
. '
Ordinaqce No. 22 of 1978, they were not parties to the Saagb's petitions
and, therefore, the judgment in that case was not binding upon them and
that in the case of those who were appointed under U.P. Ordinance No.-10
of 1978, that this Ordinance had not been declared ¥oid by the High Court.
They also contended
that the termination of their services was illegal
iriasmuch as the procedure prescribed
by s.
16~0 (3) of the Intermediate
Education Act had not been followed. Dismissing the writ
petition, the
High Court
Peld that those petitioners who were appointed under U.P.
Ordinance No. IO of 1978 must be deemed to have been appointed under
G
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220 ~UPREME COURT REPORTS (1985] J S.C.R.
U.P. Ordinance No. 22 of 1978 and as l,J.P. Ordinance No. 22 or 1978
had been declared by the High Court to be unconstitutio.1al, the appoint·
meats of the petitioners were bad ab btitio, ands. 16-G (3) of the Intcr
medi::ite Education Act was not attracted. 1-Iencc these appeals by special
leave and writ petitions by the reserve pool teachers whose services were
tenninated as a result of the judgment of the High Court in the Saogh's
case.
Allowing
the appeals and the writ petitions,
HELD :
(I) A High Court ough: not to hear and dispose of a writ
petition under Articte 226 of the Constitution without the persons who
would 1:-e vitally affected by its judgment being before it as 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 indi
vidual!y, and, if the petitioners refuse to so join the1n, the High Court
ought to dismiss the> petition for non-joinder of necessary parties. [261F-G]
(2) In tb~ instant case the High Court ought not to_ have proceeded
to hear and dispose of Civil Miscellaneous Writ No. 9 !74 of 1918-Uttar
Pradesh Madhyamik Shikshak Sangh and Others v. State of Uttar Pradesh
arid Others-without insisting upon the reserve pool teachers being made
respondents to that writ petition or atleast some of them being made
respondents there to in a representative capacity as the number of the reserve
E pool teachers was too large ar.d, had the petitioners refused to do so, to
dismiss that writ petition for non-joinder of necessary parties. [261 ll; 262A]
(3) A writ of certiorari or a.writ in the nature of c.-;rtiorari cannot
be issued for declaring
an Act or an Ordinance as unconstitutional or void.
A
writ of certiorari or a writ in lhe nature of certiorari can only be issued
F by the Supreme Court under Article l Z of the Constitution and a High
Court under Article 2Z6 of the Constitution to direct inferior courts,
•
•
tribunals or authorities to transmit to the court the record of Proceedings pen· ..
G
H
ding therein for scrutiny and, if necessary, for quashing the &ame. [262B·C]
"A New Abridgement of the Law" by Mattew Bacon. Seventh Edition,
Volume JI at pages 9 and 1 O. 'Hahbury's Laws of England, Foruth Edition.
Volume I, para 80, R. v. Glamorganshire Inhabitants, [1700] 1 Ld. Raym.
580, Groenvelt v. Burtt ell, [1700] I Ld. Raym. 454, Dwarkanath, Hindu
Undivided Family v. Income Tax Officer, Special Circle, Kapur andanothet,
[1965] 3 SCR 536, 540-41 and Udit Narain Singh Malpaharia v. Additional
Member, Board
of Revenue, Bihar, [196l]
Suppl. I S.C.R. 676, 286,
referred to.
•
,.
PRABODH l'· U. P. STATE 221
(4) Where it is a petitioner's contention that ao Act or Ordinnnce A
is unconstitutional or void, the proper relief for the petitioners to ask
is a
declaration
to that effect and if it is necessary, or thought necessary to
ask for a consequential relief, to a~k for a writ of n1andan1us or a writ
in the
nature of mandamus or a direction, order or injuction restraining the
concerned
State and its officers from enforcing or giving effect to the
provisions of that Act or Ordinance. [262D] B
Dwarkanath, Hindu Undivided FamiJ:· v. Income Tax Officer, Special
Circle, Kanpur and another. [1965] 3 S.C.R. 536, 540.41, referred to.
(5) Though neither this Court
nor
any High Courts shou!d dismiss
a writ petition on a n1ere technicality or because a proper relief has not
been asked for,
it should not,
therefore_, condone every kind of laxity,
particularly where the petitioner is represented by an advocate. {262E]
(6) An advocate owes a duty to his client as well as to the court-a
duty to his client to give of his best to the case which he has undertaken
to conduct for his client <ind a duty to assist the court to the utmost of his
skill and ability
in the proper and satisfactory administration of Justice.
An advocate should
not measure the quality of work he will put into a
case by
the quantum of fees he.receives. In our system of administration of
the courts have a right to receive
assist<ince the Bar and it is the duty of
c
D
the advocate who drafts a writ petition or any other pleading to ask for E
appropriate relief.. [2SOA·C]
(7) Laxity in drafting all types of pleading's, is becoming the rule
and a well-drafted pleading, an exception. An ill-drafted pleading is an
offspring
of the union of carelessness
wllh imprecise thinking and its
brothers are slipshod preparation of the case aPd rambling and irrelevant
arguments leading to waste of time which the courts can ill afford by rea~on
of their overcrowded dockets. [2SIE]
( 8) In the instant case, the High Court 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. [262F]
(9) The word £enactmen't' does not mean the same thing as •Act.'
Act means the whole Act, whereas a section or part of a section may be
an enactment. [2350)
F
G
.The Wakefield and Dis~rr'ct Light Railways Company v. The Wake-ff
222 SUPREME COURT REPORTS [1985) ! S.C.R
A field Corporation, [1906] 2 K.B. 140, 145-6. affirmed in [1907) 2 K.B. 256,
referred to.
B
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(I 0) 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 souJd inele2ent, to refer
to a provision of an Ordinaa~J promu!g.lted by the presiJent under Article
123 of the Constitution or prior to the coming into force of the Consti
tutio:a of India, by the Governer·General under the Indian Council Act,
1961, or the Government of India Act, 1915, or the Government of India
Act, 1835,
as
''section" and to a sub-division of a section, numbered in
round brackets, as "sub-s~ction". [262G-H]
Craies on Statute Luw, 7th ed., p. 217. Coke in "The lnstit1Ues of 1he
Laws of England". Part IV at page 24, and State of Maharashtra v. Kusum
Charudutt Bharma Upadhye, [1981] 83 Bomb1y Law Reporler 75, 95 S B.
referred to.
(11) Simil<irly, by reason of the prov1s1ons of section 30 of the
Uttar Pradesh General Chus;s. Act, L904, reud 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 Ordinance promulgated by
the Governor of Uttar Pradesh under Article 213 of the Constitution or
E prior to the coming into force of the Ccnstitution 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 usub-section". [263A-B]
F
G
( 12) Article 14 of the Constitution guarantees to all persons equality
befOre law. Clause (I) of Art. 16 guarantees equality of opportunity for
all citizens in matters relating to employment or appointment to any office
under the State. Thus Article 16 is ao instance of the application of
the general rule of equality laid down io Article {4. Article 14, however,
does
not
for-bid classification. The classification to be valid must be rounded
on an intelligible differentia which distinguishes those that are grouped to
gethc~ from others and the differentia must have a rational nexus or relationM
ship to the object sought to be achieved by the legislation. [25JB; D; P]
Banarsl Dass and others v. The State of Uttar Pradesh and olhers,
[1956] S.C.R. 357, 36i and In re. The Special Courts Bill, 1978, [1979] 2
S.C.R. 4745, 535, referred to.
(13) I~ the instaqt case, neither the Uttar fra4esQ Hi~h Schools aoct
'
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PRABODH \', U. P. STATE 223
Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. No. A
Ordinance 10 of 1978), nor the Uttar Pradesh High Schools anJ Intermediate
Col1eges (Reserve Pool Teachers) (Second) Ordinance, 1978 (U.P. Ordinance
No. 22 of 1978), infringed Article 14 or Article 16(1) of, the ConstHution
or wa~ unconstitutional or void. [~63C-D]
( 14) The reserve pool teachers formed a separate and distinct class B
from
other applicants
for the posts of teachers in recognized institutions •
[263D]
•
(15) The differe11tia which distinguished ·the class of reserve pool
teachers from ihe class of other 'applicants for the posts of teachers in
recognized institutions was the service rendered by the reserve pool teachers C
to the State <ind its educational system in a time of crisis. [263E]
( l 6) The above differentia bore a reasonable and rational nexus
or relation to fbe object sought to be achieved
by
U.P. Ordinances Nos.
10 and 22 of 1978 read with the Intermediate Education Act, 1921,
namely, to keep the system of High School and Intermediate Education in
the State of Uttar Pradesh functioning smoothly without interruption so
that the stuclents may not suffer a detriment. [263F·G]
( 17) The preferential treatment in the matter of recruitment to
posts
of teachers in the recognised institutions was, theirfore, not
discrimi~
natory and did 03t offend Article 14 of the Constitution. [263H]
(18) As the above two classes were not similarly circumstanced,
there could be no question
of these classes of persons being entitled to
equality
Of opportunity in matters relating to employment guaranteed by •
Article 16(1)
of the Constitution and the preferential treatment
,given to
the reserve pool teachers was therefore, not violative
of
Articl~ 16(1) of
D
E
the Constitution [263H; 264A] F
(19) The case of Uttar Pradesh Madhyamik Shikshak Sangh and others,
v. State
of
Uttar Pradesh and 01hers was wrongly decided by the Allahabad
High Court and requires to be overruled-
[2648]
l.lttar
Pradesh Madhyamic Shikshak Sangh and Others v. Slate of Uttar G
Pradesh and Others, [1979] Allahabad Law Jour.1al 178, overruled.
· (20) The termination of the services of the reserve pool teachers
/ . .
,. ... following upon the judgment of the High Court was contrary to law and
the
order
datl'd May 21, 1979, of the Government of Uttar Pradesh and
the order dated May 29, 1979. of the Additional Director of Education,
Uttar Pradesh, were a !so bad in law. r264C] J~
I
SUPREME COURT REPORTS [[935) 1 S.C.R,
A (21) Each of the reserve pool teachers bad a right under Up,
B
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E
F
j ,
i
I
'1
I
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Ordinance No. 10 of 197? as also under U·P. Ordinance No. 22 of 1978 to
be appointed lo a ~ubstantive vncancy occurring in the post of a teacher in a
recognized institution which was to be filled by direct recruitment. [264D]
(22) Each of the reserve pool teachers who had already been
appointed and was contiii,uing in service b:y reason of the stay orders passed
either by the High Court or by this Court is entitled to continue in service
and to be cOnfirmed in the post to which he or she was appointed with
effect from lhe date on which he or she WC'Uld have been confirmed in the
normal and usual course. [264E-F}
' .
(23) Where a court has passed an interim order which has resulted
in an injustice,
it is bound
at the time of the passi11g of the final order,
if it takes a different view at tho.t 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
supei:ior court, if it takes a different view, must,
as far as lies within its power, seek to undo that injustice.
(24) Those reserve pool teachers
who were not appointed as provided
by
U.P. Ordinance No. 10 of 1978 or U.P. Ordinance No. 22 of 1978
were not so appointed because
of the intcri1n orders passed by the High
Court and the judgment of the High Court in the
Sangh's case. In view
of the fact that this Court has held thai the Sangh's case was wrongly
decided by the High Court, the injustice done to t, ese reserve pool teachers
requires to be undone. [264G)
(25)
Jn view of the fact that the vacancies to which these reserve
pool
teacflcrs would have been appointed have already been filled and in
all likelihood those so appointed have been confirmed in their posts, to
appoint these reserve pool teachers with effect from any retrospective date
"v.,ould be to thrO\V out the present incombents from their jobs for no fault
of theirs. It will, therefore, be in consonance with justice and equity and
fair to all parties concerned i.f the remaining reserve pool teachers are
appointed in accordance with' the provisions of U.P. Ordinance No. 22 of
1978 to substantive vacancies occurring in the posts of teachers in recog.
nized institu!ions which are to be 6.1 lcd by direct recruitment as and when
each such vacancy occurs.
[264H; 265A-B]
(26)
This' will equally apply to tb()se reserve pool teachers whose
services were tei minated anrl who had not filed any writ petition or who
bad filed a writ petition but had not succeeded in obtaining a stay order •. ~
as also to those reserve pool teachers who had not been appointed in vie~
of the interim orders passed by the High Court and thereafter by reason
of the judgment of the High Court i~ the San~h's c;:as~ aqd whQ h ~vc qot
jiled any writ petition.:[26SC·D)
•
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PRABODH VERMA v. U.P. STATE 225
CIVJL APPELLATE JURISDICTION : Civil Appeals Nos. 694, 909,
911, 912, 2307 of 1980, 2931-32 of 1979 and 4 of 1981.
Appeals by Special leave from the Judgments and Orders dated
tQ.e !Ith September, 1979 and !st August, 1979 of the Allahabad
High
Court in Civil Misc.
P. Nos. Nil, 7045, 7043, 7039, Nil, 7042,
7046 and 4047 of 1979.
With
Writ Petitions Nos. 1221-29, 1235, 1340-41, 1498, 1572,
1681-82 of 1979, 22, 203, 363 of 1980, 1687, 434 of 1981. 9065,
9863, 10773·76 of 1983.
(Under Article 32 ofthe Constitution.of India)
T.U. Mehta, S.K. Sabharwal and D.R. Gupta for the Appel-
!ants in CA. No. 694 of 1980.
Shanti Bhushan and S.S. Jauhar for the Appellants in CA.
Nos. 2931-32
of 1979.
'/
D,R. Gupta and P.K. Chakravarty for the Appellants in CA.
Nos. 909, 91 I. 912 of 1980 and 2307 of 1980.
A.
B.
C,
D
D.R. Gupta, P.K. Chakravarty and S.S. Jauhar for the Peti
tioners in W.P. Nos. 1221-1229, 1340-41, 1681-82, 2931-32 of E
1979.
Anit Dev Singh and S.K. Sabharwa/ for
· the Petitioners in
WP. No. 1235 of 1979.
Gopal Subrarnaniurn and Mrs. Shobha Dikshit for •the Respon- F
dent (State of U.P.)
R K. Garg, R.K. Jain and P.K. Jain for Respondent.
E.C. Aggarwa/a and M.M. Srivastava for Respondent No. 12.
Meera Agarwal and R.C. Misra for Respondent Nos. 8 and 4
(In CA. No. 912 of'l980 and W.P. No. 4334 of 1980.
Shivpujan Singh for the Appellant in CA. 4 of 81.
S.
Markandeya for Respondents
I to 7 in CA. 4/81.
R.K. Jain, Ravi Prakash Gupta and R.P. Singh for Respondent
No. 12 in CA. 4 of 1981.
The Judgment of the Court was de]ivered by
G
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MADON J. The principal question which arises for deter
mination in this group of Appeals by Special Leave ·and Writ
Petitions is the constitutional validity of two· Uttar Pradesh
Ordinances, namely; (I} the Uttar Pradesh High Schools and
Intermediate Colleges (Reserve Pool Teachers) Ordinance, 197.8
(U.P. Ordinance No. 10 of 1978), and (2) its successor Ordinance
The Uttar Pradesh High Schools and Intermediate Colleges
(Reserve Pool Teachers) (Second) Ordinance, 1978 (UP, Ordinance
No.
22 of 1978), which had been struck down by a Division Bench
of the Allahabad High Court by its judgment delivered on
December 22, 1978, in Civil
Miscellaneoas Writ No 9174 of 1978-
Uttar Pradesh Madhyamik Shikshak Sangh and Others v. ,State of
Uttar Pradesh and Others
11
l on the ground that its provisions were
violative
of Articles 14 and 16(1) of the Constitution, of India; the
subsidiary questions being whether the termination
of the services
of the Appellants and
Petitioners as secondary school teachers and
intermediate college lecturers following upon the said Allahabad
High Court judgment is valid and
if not, the reliefs to which they
are entitled.
'
We will first set out the circumstances which led to the pro
mulgation of the above two Ordinances and then narrate the events
subsequent thereto.
The educational institutions in the State
of
Uttar Pradesh
teaching upto the high school and intermediate classes fall into
three categories, namely,
(I) institutions managed and conducted by the Centrai'
Government ;
(2) institutions managed and conducted by the State Govern
ment and local bodies ; and
.
(3) institutions managed and conducted by private
manage
ment.
The service conditions
of the teachers in these three
catego
ries of institutions are governed by different statutes. We are
concerned in these Appeals and Petitions with only the teachers
falling in the third category mentioned above. These institutions
are governed
by the Intermediate
E<)ucation Act, 1921 (U.P. Ac
ff (I) [1979) A.L.J. !78
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PRABODH VERMA v. U.P. STATE (Madon, J.) 227
No. II of 1921). Clause (b) of section 2 of the Intermediate
Education Act defines an 'institution' as meaning "a recognised
Intermediate College, Higher Secondary School or High School,
and includes, where the context so.requires, a part of an institu
tion". Section 3 provides for the constitution of a Board, called
th.e Board of High School and Intermediate Education. Section 7
prescribes the powers
of the Board which inter alia include the
power to prescribe the courses of instruction and text-books, to
conduct examinations
at the end of High
School and Intermediate
courses and to recognize institutions for the purposes of such
examinations. Under section 7-A, an order of the Board giving
recognition to an institution for the first time
or in any
new subject or Board group
or
for• a higher class is not to
have effect until it
is approved by the
State Government. Section
15 confers upon the Board the power to make Regulations inter
alia providing for the c0nditions of recognitions of institutions.
Regulations made
by the Board under section 15 are required to
be made with the previous sanction
of the
State Government and
to be published in the Uttar Pradesh Official Gazette.
All the institutions falling in the third category mentioned
above and with which
we
are concerned in these Appeals and
Petitions are recognized under the Intermediate Education Act.
Section 16-A of the Intermediate ·Education Act requires a Scheme
of Administration to be framed for every recognized institution.
The Scheme of Administration of every institution is to be subject
to the approval
of the Director of Education,
Uttar Pradesh. A
Scheme of Administration is amongsCother matters to provide for
the constitution
of a Committee of Management vested with
authority to manage and conduct the affairs
of the institution.
·Under sub-section (6) of section 16-A, every recognized institution
is to be managed in accordance with its Scheme of Administration.
Section 16-E
of the Intermediate Education
Act prescribes
the procedure for selection
of teachers and heads of institutions.
Under sub-section{!)
of
16-E, the head of institution and teachers
of an institution are to be_ appointed by the Committee of Manage
ment in the manner provided in the said section. Under sub-section
(2), every post
of head of institution or teacher of an institution is
except to the extent prescribed by the Regulations for being filled
by promotion, to be filled by direct recruitment after intimation
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of the vacancy to the Inspector which term is defined by clause (bb)
of section 2 as meaning "the District Inspector of Schools, and in
relation to an institution for girls, the Regional lnspectress of
Girls' Schools, as the case !Ilay be, and in each case includes an
officer authorised
by the State Government to perform all or any
of the functions of the
Inspector" under the Intermediate Education
Act.After intimation
of the vacancy to the Inspector, advertisement
of the vacancy, containing such particulars, as may be prescribed
by the Regulations,
is to be published in at least two newspapers
having adequate circulation in the State.
Sub-section (3) prohi·
bits any person from being appointed as head of institution or
teacher in an institution unless he possesses the minimum quaJifi.
cations prescribed by the Regulations. Under the proviso to that
sub·section, a person who does not possess such qualifications
may be appointed if he has been granted exemption by the Board
having regard to his education, experience and other attainments.
Under sub-section 14), applications in pursuance of the advertise·
ments published as aforesaid are to be made to the Inspector,
Sub·sections !5) io (10) of the said section 16-E provide as follows:
"(5) (i) After the receipt of applications under sub·
section (4), the Inspector shall cause to be awarded, in
respect of each such applications, quali ty·point marks in
accordance with the procedure and principles prescribed
and shall thereafter, forward the applications to the
Committee
of management.
(ii) The applications shall be dealt with the
candida
tes shall be called for interview, and the meeting of the
Selection Committee shall be held, in accordance with the
Regulations.
(6) The Selection
.'.ommittee shall prepare a list con·
taining in order of preference the names, as far as pre·
practicable, of three candidates for each post found by
it. to be suitable for appointment and shall communicate
its recommendations together with such list to the Co·
mmittee of Management. -
(7) Subject to the provisions of sub-section (8), the
Committee
of Management shall, on receipt of . the
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PkABODH VERMA v. V.P. STATE (Madon, J.)
recommendations of the Selection Committee under sub
section (6), first offer appointment to the candidate given
the first preference
by the Selection Committee, and on
his failure to join the post, to the candidate next to him
in the'list prepared
by the Selection Committee under
this section, and on the failure
of such candidate also, to
the last candidate specified in such list.
(8) 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, and
his decision shall be final.
(9) Where no candidate approved by the Selection
Committee for appointment is available, a fresh selection
shall be held in the manner laid down in this section.
(10) Where t.he State Government, in case of the
appointment
of Head of Institution, and the Director in
the case
of the appointment of teacher of an
insti·
tution, 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 on apportunity
of being heard to such
person cancel such appointment and pass such
consequen·
tial order as may be necessary."
229
Section 16-F provides for the constitution and composition of
two'Selection Committees, one for the appointment of the head of
an institntion and the other for the appointment of a teacher in an
institution.
The only other section which needs be referred to is section
16-G. Section 16-G provides for the conditions of service of heads
of institutions, teachers and other employees. Under sub-section
(I), every person employed in a recognized institution is to be gover0
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230 SuPREME COURT REPORTS [1985] l S.C.R.
ned Regulations. Any by such conditions of service as may be pres·
cribed by the regulations. Any agreement between the management
and such employee in
so far as it is inconsistent with the provisions
of the
Intermediate Education Act or the Regulations is to be void.
Under sub-section (2), • without prejudice to the generality of the
powers conferred
by sub-section (l), the Regulations may, inter
alia,
provide for the p~riod of probation, the conditions of confirmation,
the scales
of pay and payment of salary.
Under sub-section (3), no
principal, headmaster or teacher can be discharged or removed or
dismissed from service or reduced in rank
or subjected to
dimi·
nution in emoluments or served with a notice of termination of ser
vice except with the prior approval in writing of the Inspector. The
Inspector has the power either to approve or disapprove
or
reduce
.or enhance the punishment or approve or disapprove of
the notice of termination of service proposed by the management.
A right
of appeal to the Regional Deputy Director, Education,
is provided to any party aggrieved
by an order of the Inspector.
l__~ In 1977 there were about 8'J,OOO secondary teachers of
recognized institutions and institutions nunaged by local bodies'.
Out of tilem about 6~,0JJ teachers were members of a registered
society, namely, the Uttar Pradesh Madhyamik Shikshak Sangh
(hereinafter reforred to as "the Sangh"1, the First Petitioner in
the said Civil Miscellaneous Writ No.
9174 of 1978 in the : Allahabad High Court and one of the Respondents in the Appeals
and Petitions before us. On August 9, 1977, the Sangh submitted
a charter
of
twenty-seven demands to the State Government.
The Government refused to accept any
of
the-said demands. We
are not concerned in these Appeals and Petitions with the question
whether these demands or any
of them were reasonable or not,
nor with the question whether the refusal
of the Government
to
accept the said demands or any of them was justified or not. As
the Government did not accept the said dem~nds, the Sangh gave
and a call for an indefinite strike commencing from December 2,
1977, in response to the said cail about
90 per cent of the teachers
in recognized institutions went on an definite strike from December
2, 1977.
Under the Uttar Pradesh Essential Services Maintenance Act,
1966 (U.P. Act No. XXX-of 1966), service in certain educational
H institutions
is an essential service.
Sub-clause (ii) of caluse (a) of
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PRAeooii VERMA v. u.P. STATE (Madon, J.)
'.'
231
section 2 of that Act, as it stood· at the relevant time, defined A
"essential service" as meaning inter a/ia-
"any service under an educational institution recognised.
by the Director of Educition, Uttar Pradesh, or by the
Board
of High
School and Intermediate Education, B
Uttar Pradesh, or service under a Universitity incor-
porated
by or
under an Uttar Pradesh Act.
Sub-section
(l) of section 3 of that Act confers upon the
State
Government the power, by general or special order, to prohibit
strikes in any essential service specified in the order
if the
State
Government is satisfied that in the public interest it is necessary
or expendient to do so. Under sub-section (2) of section 3, such
order
is to be published in such manner as the State-Government
considers best calculated to bring the
order to
th(> notice of the
persons affected
by it.
Under sub-section (4) of section 3, during
the period
of the operation of such
an· order any strike by persons
employed in
anf
eisential service to which the order relates is •
illegal, whether such strike is declared or commenced before or
after the commencement of the order. Under section 4 of that
Act, any person who commences a strike which is illegal under
that Act or goes or remains on or otherwise takes
part in any
such strike becomes liable to impri,onment for a term which may
extend to six months or with fine which may extend to
five
~undred rupees or with both and, under section 7, any police
officer may arrest without warrant any person who
is reasonably
suspected
of having committed any offence punishable under that
Act. By a notification dated December 24, 1977, the State Govern
ment made and published an order under section 3(1) of that Act
prohibiting 3trikes in service under educational institution. Further,
on December 31, 1977, the Governor
of
Uttar Pradesh promulgated
the Uttar Pradesh High Schools and Intermediate Colleges
(Payment
of
Salaries of Teachers and Other Employees \Amend
ment) Ordinance, 1977 (U.P. Ordinance No. 25 of 1977). The
said Ordinance amended section 4
of the Uttar Pradesh High
Schools and Intermediate Colleges
(Payment of Salaries of
Teachers and Other Employees) Act, 1971 (U.P. Act No. 24 ofl971).
The effect
of the said amendment was that the Director of
Education, Uttar Pradesh, could, by general or special order,
direct any teacher who went or re1nained on or otherwise took
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SUPREME COURT REPORTS [1985] 1 s.c.R.
part in any strike which had been prohibited by an order under
section 3
of the
U.P. Essential Services Maintenance Act to
resume duty by the day or hour specified in the order and upon
the failure
of the teacher to resume duty in response thereto his
contract
of employment with the managemen·t became void with
effect from the day or hour specified in the direction contained in
such order and the concerned teacher
was not to be entitled to
any notice before such termination
of his services, nor was any
disciplinary inquiry required before taking such action,
notwithstanding anything to the contrary contained in the
Inter
mediate Education Act or the Regulations made thereunder
or the conditions of service of such teacher. Further, the
State Government was not to be liable for payment of
salary to any such teacher beyond the day or hour specified
in such direction.
It was also provided that
''The management
or failing it the In>pector may notwithstanding anything to the
contrary contained in the Intermediate Eduction Act,
1921,
or the Regulations for the time being in force with respect to the
mode
of selection. appointment or approval of appointment, be
competent to appoint on temporary basis any
person possessing the
equisile qualifications for discharging the duties of the post of any
such teacher". By a notification issued on the same day the
Director
of Education in pursuance of section 4 of the
U.P. Act
No.
24 of 1971 as amended by the said Ordinance directed the
teachers on strike
or otherwise. taking part in the strike prohibed
under section 3
of
U.P. Essential Services Maintenance Act to
resume duty
by JI a.m. on January 5. 1978.
One of the striking teachers threupon filed a writ petition
in the Allahabad High Court challenging the validity of the said
U.P. Ordiance No. 25 of 1977 and said notification issued under
the amended section
4 of the
U.P. Act No. 24 of 1971. The
High Court extended the joining time for the striking teachers
uptil January
9, 1978. ln spite of the _order of the High Court,
the teachers who had gone on strike or at least a large number
of
them, namely, 2257 teachers, did not resume duty. Accordingly
their contracts
of employment became void and in order to fill the
posts,
2257 persons, including the Appellants and Petiton_ers
before
us, possessing the requisite
qualificat10ns for d1schargmg .
t
1
e duties of the posts of such that teachers were appointed on
temporary basis between January
9, 1978.
and January 19, 1978.
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PRABObll VERMA v. tr.P. STATE (Madon, J.) 233
~ /'
Thereafter a settlement took place between the striking teachers and'
the Government and iliese'tYi~ of the said 2257 teachers · ;,,;.e
terminated .on or -.hout; :r ... ~ 20, 1978, after giving them one
month's salary in lieu of notice. On February 25, 1978, in exercise
of the power conferred by sub-clause (b) of clause' (2) of Article 213
of the Constitution of India, the Governor of U ttar Pradesh with·
drew the said U.P. Ordinance No. 25 of 1977.
/
On June 24, 1978, the Governor of Uttar Pradesh promulgated
the Uttar Pradesh High Schools and Intermediate Colleges
(Reserve Pool Teachers) Ordinance, ·1978 (U.P. Ordinance No. 10
·of 1978) (hereinafter for the. sake of brevity referred to as "U.P.
Ordinance No. 10 of 1978"). The long title of U.P. Ordinance
No. 10 of 1978 stated that it was "An Ordinance to provide for
the absorption
of certain teachers in the institutions recognised
under the Intermediate Education Act,
1921
". Whenever one of
the provisions of U.P. Ordinance No. 10 of 1978 refers to another
provision thereof, it uses the word "sectio.n'' or ''sub-section" alld
not "clause" or "sub·clause" as one \'OU!d norma1Jy expect to
find, and the same is the case with its successor Ordinance, U.P.
Ordinance No. 22 of 1978. Whether this phraseology is correct •
or not is a matter which we will consider later after we have seen
what the provisions
of
U.P. Ordinance No. Ji) of 1978 were,
adopting for this purpose the same phraseology. as used In that
Ordinance. Section 2 of U.P. Ordinance No. 10 of 1978 gave an
overriding effect to the provisions of that Ordinance notwithstand·
ing anything contained in the Intermediate Education Act or any
other law for the time being in force. Section ~of U.P. Ordi·
nance No. 10 of 1978 was headed "Absorption of Reserve Pool
Teachers". Sub-section (l) of section 4 provided that the lnspe·
ctor (that is, the District Inspector of Schools, and in relation to a
girls' institution, the District Inspectress
of Girls'
Schools or the
Regional Inspectress
of Girls' Schools, as the case may be, incl
ud·
ing any other officer authorized by the Government to perform
all
or any of the functions of the Inspector) should maintain in the
prescribed manner a register
of
"reserve pool teachers" consisting
of persons who were appointed as teachers in any recognized
institution situated in the district either
by the management or by
the Inspector under sub-section(4) of section 4of the
U.P. High
Schools and Intermediate Colleges (Payment of ·salaries of
Teachers and Ot)ler Employees) Act, 1971, while the said U.P.
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234 SiJPRHiE COURT REPORTS [1985] j S.C.R.
Ordinance No.25 of 1977 was in for~e and who had actually joined
their duties in pursuance
of the said provision between January 9,
1978, and January 19, 1978. Sub-section
(2) of section 4 of
UP. Ordinance No. JO of 1978 provided as follows:.
"(2) Where any substantive vacancy in the post of
a teacher in an institution recognised by the Board is
to be filled
by direct recruitment, such post shall at the
instance
of the Inspector be offered by the Management
to a teacher whose name
is entered in the register refer
red to in sub-section
(!)."
Other sub-sections of section 4 provided that if any teacher
who
was offered appointment failed to join the post within the
time allowed therefore, his name should be removed from the
register
of reserve pool teachers and the appointment should be
offered to another reserve pool teacher of the same district and
that
if such other teacher also failed to join the same process
should be repeated until the list
of reserve pool teachers of that
district
was exhausted and thereupon the appointment in the
institution
was to be made in accordance with the relevant
pro
visions of the Intermediate Education Act. The Explanation to
section 4 provided as follows:
"Explanation:-For the removal of doubts, it is
hereby declared that no teacher shall, by virtue of the
provisions
of this section be er.titled to claim appoint
ment to any post which he had joined in accordance
with sub-section
(I) or to any post carrying the same or a
higher grade."
Section 5 provided that where the vacancies available for teacher
in any subject
of study
>Vere less than the number of reserve pool
teachers available for appointment in any district or where it was
otherwise necessary
or expendient so to do, the Director (that is,
the Director
of Education,
Uttar Pradesh, including any other
officer authorized by him in this behalf) could 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 and in such a case ihe provisions of section 4 were
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PRABODH VERMA v. U.P. STATE (Madon, J.) 2.3.5
mustatis mutandis to apply to such a teacher except that the require-A
ment
of service as teacher in such district was
not to be
necessary.
We will now
coniider whether the use of the word "sub-section"
in the extract from U.P. Ordinance No. 10 of 1978 reproduced
above and our referring to the different provisions
of that Ordinance
as sections and to the numbered sub-divisions
of a provision of
that Ordinance as sub-sections can be said to be correct. At the
first blush it would appear
that such phraseology is not correct
because the usual legislative drafting practice
is that the words
"section" and "sub-section" should be used while referring to a
provision and the numbered sub-divisions
of a provision of an
Act and the words
"clause" and "sub-clause" be used while
referring to
a provision and the numbered sub-divisions of a
pro
vision of an Ordinance. A closer examination, however, reveals
that this does
not necessarily hold good so far as Ordinances
promulgated by the
President and the Governor of Uttar Pradesh
are concerned ; and the same would be the case with Ordinances
promulgated
by the Governor of any other State where the relevant
provisions
of the State General Clauses Act are similar to those of
General the Clauses Act, 1897 (Act X of 1897) or of
t:10 Uttar
Pradesh General Clauses Act, 1904 (U.P. Act l of 1904), referred
to hereinafter.
In legislative drafting parlance the distinct and numbered
divisions
of an Act are referred to as sections and the sub-divisions
of a section which are numbered in round brackets are referred
to
as sub-sections. Each section as also a part of a section of
an Act is considered as a separate enactment. Ridley, J. observed
in
The Wakefield and District Light Railway Company v. The
Wakefield
Co1poration
11
\, "the word 'enactment' does not mean the
same thing as 'Act'. Act means the whole Act, whereas a section
or part of a section may be an
enactment". In Englond, prior to
1850 it was the usual practice to preface each portion of an Act
what we would now call a section-with the words "And be it
enacted" or "And be it further enacted". By section 2 of Lord
Brougham's Act
of
1850, namely, Interpretation of.Acts, 1850
(13 anc' 14 Viet. c.2), this requirement was done away with and it
was provided that "all Acts shall be divided into sections if there
(!) [1906) 2 K.B. 140, 145-6, affinned in [1907] 2 K.B. 256,
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be more enactments than one, which sections shall be deemed to
be substantive enactments without any introductory words". The
Act of 1850 was repealed by the interpretation Act, 1889 (52 and 53
Viet. c.63), and the requirement of section 2 of the 1850 Act as to
division
of an Act into sections was done away with but the rest
of that section was re-enacted in section 8 of the 1889 Act by
pro
viding that "Every section of an Act shall have effect as a subs
tantive enactment without introductory wo
0
rds". This particular
repeal
was not of any significance because the portion repealed
constituted a mere direction to draftsmen
and parliamentary
officials to divide an Act into sections (see Craies on
Statute Law,
7th ed.,p. 217). Though
the
Act of 1889 has now been repealed
by the Interpretation Act, 1978 (1978 Eliz. 2 c30), section l of
that Act re-enacts section 8 of the 1889 Act.
The Interpretation Act in force in India, so far as all Central
Acts and Regulations
are
conce~ned, is the General Clauses Act,
!~97 (At X of 1897). Clause (7) of section 3 of the General
Clauses Act defines the term "Central Act" and clause (50) of that
section defines the term "Regulation".
Section 3 of the General Clauses Act is the definition clause.
The definitions
of various terms given therein apply to those terms
not only when
usod in the General Claurns Act but also when used
in all Central Acts and Regula:ions made after the commence
ment of the General Clauses Act, unless there is anything repugn
ant in the subject or context. The relevant clauses of section 3
with which we are c0ncerned are clauses (54) and (61) which
provide as follows:
"(54) "s,ction" shall mean a sectivn of the Act or
Regulation in which the word occurs. )
"(61) "sub-section" shall mean a sub·section of the
G section
in which the word
occurs".
The object of these clause is to shorten the language of Acts and
Regulations otherwise whenever a section of an Act or Regulation
refers to another section
of that Act or Regulation, the title of that
Act or Regulation would have to be stated after such reference in
order to make it clear that it
was another section on the same Act
H
or Regulation which was being referred to.
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PRABODH VERMA v. U.P. STATE (Madon, J.) 237
There is a difference between an Act and an Ordinance. An
Act is a legislation which after having been passed by Parliament
or other competent legislative body has receivod the assent of the
consitutional had while an Ordinance is a legislation made by the
constitutional head himself, generally without the consent of Parlia
ment or other concerned legislative body. In England, there is no
question of such an Ordinance being promulgated because the Mo
narch has now no legislative power. Coke in "The Institutes of the
Laws of England ",Part IV at page 24, however, made ~ distinc
tion between an Act of Parliament and an Ordinance in Parliament.
He said:
"There is no ac:t of parliament but must have consent
of the lords, the commons, and the royal assent of the
king, and as it appeareth by records and our books what
soever passeth in parliament by this three-fold consent,
hath
the force of an act of parliament.
The difference between an, act of parliament, and an
ordinance in parliament, is, for that the ordinance wanteth
the three-fold consent, and is ordained by one or two of
them."
(Orthography modernized)
Thti°s, the enctments which were passed during the period bet
ween the outbreak of the Civil War in .England in !642 and the
Restoration
(of King Charles JI) in 1660 were all passed without
the consent of the Crown and are known as Ordinances.
In India, all laws made prior to the enctment of statute 3 and'
4 Wm
IV c. 85 of 1833 were called Regulations. The Statute of
1833 superseded the existing power> of the Councils of Madras and
Bombay to make laws and merely authorized them to submit to the
Governer-General-ip-Council drafts or projects of any law which
they might
think
expedient and the Governor-General-in-Council
was, after C)'1idr.ition, t.) communicate his decision thereon to the
local Government which had proposed them. All laws made in
pursuance of the Statute of 1833 were known· as "Acts". (see
State of Maharashtra v. Kusum Charudutt Sharma Upadhye
1
n. The
term "Regulation" has now a different meaning under clause (50)
of the General Clauses Act.
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(I) [1981] 83 Bombay Law Reporter 75, 95 S.B,
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Under the Constitution of India, Ordinances are promulgated
by the President in exercise of his legislative power under Article
123 when both Houses of Parliament are not in session or by
the Governor
of a State in exercise of his legislative power under
Article
21.3 when the Legislative Assembly of the State is not in
session or where there
is a Legislative Council in a state, when both
Houses
of the
Legislature are not in .session. Prior to the Couns·
titution the Governor-General had under the Indian Councils Act,
1861 (14 & 15 Viet. c. 67), the Government of India Act, 1915 \5
& 6 Geo. V c. 61) and the Government of India Act, 1935 (26 Geo.
V&I Edw VIII c. 2), the power to promulgate Ordinances. The •
Governor of a Province also possessed similar power under sec-
tion
88 of the Government of!ndia Act, 193 5. Section
30 of the
General Clauses Act provides that the expression "Central Act"
wherever it occurs in that Act, except in section 5 (which deals
with com ming into operation
of enactments), and the word 'Act'
in certain clauses of secion 3, including clause(54), and in section
•
25 shall be deemed to include an Ordinance made and promulga-
ted by the Governor-General under section 23 of the Indian Coun-
cils Act, 1861, or under section
72 of the Government of India Act,
1915, or under section
42 of the Government of India Act, 1935
and an
Ordinance promulgated by the President under Article I J 3
of the Constitution.
There would have beeh no purpose in section 30 of the Gene
ral Clauses Act providing that the word "Act" in clause (54) of sec
tion 3 of the General Clauses Act shall be deemed to include an
Ordinance unless one of the provisions of an Ordinance can refer to
another provision
of the same
Ordinance as a "section", and if
one of the provisions of an Ordinance can refer to another provision
of it as a "section", it would naturally follow that a part of such
provision can be referred to as "sub-section". Thus, section 30 of
the General Clauses Act read with clause (54) of section 3 therof
would show that it. would not be wrong phraseology, though it ma)
sound inelegant, to refer to a provision of an Ordinance as "sec
tion" and to a sub-division of such provision, numbured in round
brackets, as "sub-section''.
Almost all States, including Uttar Pradesh, have their own
General Clauses Acts which apply for the purposes
of interpretation ~ of their own Acts. Tl1e Act in force in the State of Uttar Prades}l
;-
•
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PRABODH VERMA v. U.P. STATE (Madon, J.) 239
is the Uttar Pradesh General Clauses Act 1904 (U.P. Act I of 1904)
Section 4 of that Act is the definition in clause and applies to all
Uttar Pradesh Act unless there is anything repugnant in the subject
or context. The expression "Uttar Pradesh Act" is defined in clause.
(46) of section 4. Clauses (40) and (43) of section 4 define the ter-
ms "section" and "sub·section" in language identical with that
used in clauses (54) and (61)
of the General Clauses Act, 1897. Section 30 of the U.P. General Clauses Act, inter a/ia, provides
that the provisions
of that Act shall apply in relation to an
Ordi-
nance promulgated by the Governor under se~tion 88 of the Gove-
rnment of India Act, 1935, as they apply in relation to Uttar
A
B
Pradesh Acts made by th'e Proviuicial Legislature and in relation c
to an Ordinance promulgated by the Governor under Article 2 l3
of tbe Constitution as they apply in relation to Uttar Pradesh Acts
made by the State Legislature .
What has been said above with respect to section 30 of the
General Clauses Act,
1897, reed with clause (54) of seetion 3
there·
of would apply with equal force to section 30 of the U.P, General
Clauses Act 1904, read with clauses {40)and(43) of section 4 there
of. The use of the word "sub-section" in the extract from U.P.
Ordinance No. 10 of 1978 cannot, therefore, be said to be incor·
rect.
To proceed with the narraton of facts, both before as well as
after the promulgation of U.P. Ordinance No. JO of I 978 several
vacancies occurred in the post
of teachers in recognized institutions
which were to be filled by direct recruitment and accordingly
adve·
rtisements were given advertising these posts. Consequent upon
these advertisements several applications were received. The app
licants were called for interview by the seletion Committee. Mean·
while, the Deputy Secratary, Education, Government of U.P., issued
a
D. 0. letter dated July
I, 1978, to the Director of Education,
and in his turn the Additional Director
of Education issued a letter
dated July 4, 1978, to all the District Inspectors of schools and the
Regional Inspectresses
of Girls 'Schools, to make appointments
in pursuance
of
OrdiMnce No. IO of 1978. Pursuant to these di·
rections, the selections of the applicants were postponed and some
of the vacancies were filled hy appointing, on probation for one
year, teachers from the reserve pool as provided by Ordinance No.
!0 of 1978. Thereupon some of the applicants who were not in the
0
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240 SUPREME COURT REPORTS [ 1985] I s.c.R.
reserve pool filed writ petitions in the Allahabad High Court chal·
lenging the validity of Ordinance No. IO of 1978 and the said two
letters dated July I, 1978, and July 4, 1978. By interim orders
passed in the said writ petitions the High Court stayed the further
opration
of
U.P. Ordinance No, 10 of 1978.
The Bill to repeal and re·cen.act U.P. Ordinance No. \0
of 1978 was passed by the U.P. Legislative Assembly but though the
Bill
was passed before the
U.P. Legislative Council it could° not
be put up for discussion and thus could not be made into an Act.
Under Article 213 (2)(a) of the Constitution, U.P. Ordinance No.
JO of 197 8 would have, therefore, ce~sed to operate on or about
October 17, 1978. When the said writ petitions reached hearing
they were dismissed on the gronnd that they had become infruc·
tuous as U.P. Ordinance No. 10 of 1978 had lapsed.
Meanwhile, on October
7, 1978, the Governor of
Uttar
Pradesh promulgated the Uttar Pradesh High Schools and Inter·
mediate Colleges (Reserve Pool Teachers) (Second) Ordinance,
"U.P. 1978 (U.P. Ordinance No. 22 of 1978) (hereinafter referred
to as Ordinance No.
22 of
1978"). U.P. Ordinance No. 22 ol 1978
repealed U.P. Ordinance No. 10 of 1978 and was given retrospective
effect on and from June
24, 1978 (the date of
U.P. Ordinance No.
JO of 1978), and it was also provided that notwithstanding the repeal
of U.P. Ordinance No. 10.of 1978, anything done or any action
taken under
that Ordinance should be deemed to have been done
or taken under
U.P. Ordinance No. 22 of 1978 as i( that
Ordinance were in force
at all material times. The provisions
of
U.P. Ordinance No.22 of 1978 were in Pari materia with those
of U.P. Ordinance No. 10 cf 1978. The only additional provision
in U.P. Ordinance No. 22 of 1978 were that this Ordinance made
it lawful for the State Government to prohibit by notification pub·
Jished in the Officicl. Gazette the selection or appointment of any
teacher in a recognized· institution until the list of reserve pool tea·
chers of that district was exhausted and. it further provided that
where the management failed to offer any post to a teacher in the
reserve pool in accordance with the provisions
of the
Ordina
nce within the time specified by the Inspector, the Inspector could
himself issue the letter of appointment to such teacher and the
teacher concerned
was entitled to get his salary from the data he
joined the post in pursuance
of such letter of appointment and
•
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PRABODH VERMA v. U.P. STATE (Madon, J.) 241
if he could not join the post due to any act or omission on the
part
of the management,
such teacher could submit his joining
report to tbe Inspector and
he would thereupon be entitled to
get his salary from the date he submitted the said report.
In pursuanace ofU.P. Ordinance No. 22 of 1978, directions
were issued
by the Secretary, Education Department, Government
of
U.P., by a telex message dated October 18, 1978, and in
pursuance thereof by the Additional Director of Education, U.P .
by a telex message dated October
19, 1978, to fill the vacancies
by making appointments from the reserve pool in accordance with
the provisions of
U.P. Ordinance No 22 of 1978. Thereafter
some more teachers from the reserve pool were appointed to the
posts which had fallen vacant and
which were to be filled by direct
.recruitment. Thereupon The
Sangh along with some of the applic
. ants for the vacant posts who had filed writ petitions in the High
Court challenging the validity of U.P.Ordinance No.JO of 1978 filed
.in the Allahabad High Court the said Civil Miscellaneous Writ No .
9174 of 1978 challenging the validity
ofU.P. Ordinance No. 22 of
,1978 and the said telex. messages. By an interim order made in the
said writ petition furiher operation
of
U.P. Ordinance No.22 of
1978 was stayed by the High Court. The Allahabad High Court by
.its judgment dated December 22, 1978, referred to above, held
·that U.P. Ordinance No. 21 of 1978 violated the provisions of
Articles 14 and 16(1) of the Constitution and accordingly
declared the Ordinance to
be void and quashed the said telex
messages. Normally, one would have expected the
State to
·apply to the High Court for a certificate to enable it to file an
appeal in this Court or to apply to this Court for special leave
to appeal, particularly
in view of the fact that a
State Ordinance
·had been struck down by the High Court as being nnconstitutional
and
as a result of that judgment 1, 157 teachers who had been
put
in the reserve pool had been deprived,
S•>me of their liveli
hood and others of their chance of livelihood. Instead, the State
Govern:nent accepted the High Court Judgment and by an order
dated May
11, 1979, directed that the services of the reserve pool
teachers could not be continued as the High Court had declared ·u. P. Ordinance No. 11 of 1978 to be unconstitutional and further
ordered that no fresh appointment should be made from the
'reserve pool and no special weightage should be given to teachers
in the reserve pool in the matter of future appointments. The
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242 SUPREME COURT REPORTS [1985] I s.c. R.
Additional Director of Education acting in pursuance of the said
order of the State Government issued letters dated May 29,
1979,
to all Tnspectors directing them that the services of the
teachers appointed from the reserve pool could not be continued
the further in view of the said decision of the High Court and that
posts should be filled afresh by the process of direct recruitment.
The Inspectors in their turn communicated to the Committees
of Management of all recognized institutions the above orders and
directed the Committee
of Management of each recognized
insti·
tution to terminate the services of reserve pool teachers employed
in its institution. Thereupon letters were issued
by the Committees
of management to the teachers appointed from the reserve pool
referring
to the said orders and intimating to them that their services
would continue only upto the end
of the academic session, that
is,
upto May 30, 1979, and thereafter would stand terminated. Several
teachers from the reserve pool whose services were so terminated
filed writ petitions in the Allahabad High Court contending
that the
termination of their services was illegal inasmuch as in respect of
those who were appointed under
U.P. Orinance No.22 of J978,
they were
not parties to the Sangh's petition and, therefore, the
judgment in that case was not binding upon them and that in the
case of those who were appointed under
U.P. Ordinance No.10 of
1978, that Ordinance had not been declared void by the High Court .
They also contended
that the termination of their services was illegal
in asmuch as the procedure prescribed by section
16·G(3) of
the Intermediate Education Act had not been followed. In most
of these writ petitions interim orders were passed by the High
Court staying the operation of the orders of termination of the
petitioners' services. In one of these writ petitions, the High
Court held that as U. P. Oridinance No. 22 uf 1978 provided that
anything done or any action taken under U.P. Ordinance No. 10
of 1978 was to be deemed to have been done or taken under U.P.
Ordinance No. 22 of 1978 as if that Ordinance were in force at
all material times, those petitioners who were . appoined under
G U.P. Ordinance No. 10 of 1978 must be deemed to have been
appointed
under
U.P. Ordinance No. 22 of 1978 and as U.P.
Ordinance No. 22 of 1978 had been declared by the High Court
to be unconstitutional, the appointments of the petitioners were
bad
ab initio. The High Court further held that as the
appoint
ments of the petitioners were bad ab initio, section 16-G(3) of the
· Intermediate Education Act was not attracted. The High Court
H accordingly dismissed that writ petition, Tlie other writ petition'
'
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PRABODH VERMA v. U.P. STATE (Madon, J.) 243
filed by teachers whose serfices had been terminated were
dismissed following this judgment.
The Appeals by Special Leave before us have been filed by
the reserve pool teachers who were petitioners before the Allaha
bad High Court in those writ petitions. The Petitioners in the
·writ Petitions before us are some of the reserve pool teachers
whose services were terminated as a result
of the judgment
of the High Court in the
Sangh's case and who have directly
approached this Court as also some
of the reserve pool teachers
who could not be appointed in
the vacancies which had occurred
. because of the interim orders passed by the High Court in writ
· petitions challenging the validity of either U.P. Ordinance No. 10
of 1978 or U.P. Ordinance No.22of1978. In these Appeals and
. Writ Petitions interim orders staying the operation of termination
orders have been passed by this Court.
The judgments under appeal merely followed
the decision
·of the High Court in the Sangh's case. If U.P. Ordinance No.22
·1. of 1978 were void, it must necessarily follow that U.P. Ordinance
1.No.10 of 1978 Wa5 also void as the provisions of both these
i Ordinances were in pari mate ria and in such event all appoint
'. men ts m1de under either of these two Ordinances were ab initio
bad in law. Sub-section (3) of section 16-G of the Intermediate
Education Act would have no application to such a case. That
• sub-section would apply where a principal, headmaster or teacher
who has been validly appointed has been discharged, removed or
dismissed from service
or reduced in rank or whose emoluments
have been diminished
or who has been served with a notice of tre-
·• mination of service. The provision which would 'really apply would
be sub-section (101 of section 16-E of the Intermediate Education
Act under which where the Director
of Education is satisfied that
any
person has been appointed as teacher in contravention of the
provisions
of that Act, he may after affording
qn opportunity of
being heard to such person, cancel such appointment and pass
such co:isequential order as may be necessary. Undoubtedly, if
.the judgment of the High Court in the Sangh's case were correct,
the appointments
of the
A.ppellants and Petitioners were in contra
vention of the provisions of the Intermediate Education Act and
their appointments were, therefore, liable to be cancelled.
No
opportunity of being heard had admittedly
been afforded to any
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of them but in view of the High Court's judgment in the Sangh's
case affording such opportunity would have been a mere~ formality
and
of no use.
The real question before
us, therefore, is the correctness of
the decision of the High Court in the Sangh's case. Before we
address ourselves to this question, we would like to point out that
the writ petition filed by the Sangh suffered from two serious,
though not incurable, defects. The first defect was that
of
non
joinder of necessary parties. The only respondents to the Sangh's
petition were the State of Uttar Pradesh and its concerned officers.
Those
who were vitally concerned, namely, the reserve pool
teachers, were not made
parties-not even by joining some of
them in a representative capacity, considering that their number
was too large for all of them to be joined individually as
respon
dents. The matter, therefore, came to be decided in their absence.
A High Court ought not to decide a writ petition under Article
226
of the Constitution without the persons who would be vitally affected
by its judgment being before it
as respondents or at least by some of
them being before it as respondents in a representative capacity if
their number is too large, and, therefore, the Allahabad High Court
ought not to have proceeded to hear and dispose
of the
Sangh' s writ
·petition without insisting upon the reserve pool teachers being made
respondents to that writ petition, or at least some of them being
made respondents in a representative capacity, and had the peti
tioners refused to do so, ought to have dismissed that petition for
non-joinder
of necessary parties.
The second defect
was in one of the main reliefs asked for.
The
first. two prayers in the said petition were the substantive
prayers and were as follows :
"(i) To issue writ, order or direction in the nature of
certiorari calling for the records of the case and
quashing the U.P. Ordinance No. 11of1978 and the
telex dated 18th October
1978 of Education Secretary,
U.P., Lucknow and telex dated 19th October 1978 of
the Additional Director of Education, Uttar Pradesh,
Allahabad.
(ii To issue a writ of mandamus, order
or direction in
the nature of
ma11dam11s \iirecting the Respondent~
•
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PRABODH VERMA v. U.P. STATE (Madon, J.)
not to implement the Ordinance No.22 of 1978 or to
make any appointment on the basis
of Ordinance
No.22
of
1978."
245
While there can be no fault found with the second prayer, it
is somewhat astonishing to find a prayer asking for "a writ in the
nature
of certiorari calling for the records of the case and quashing
the
UP. Ordinance No.22 of 1978". The claiming of such a
relief shows a lack
of understanding of the true nature of the writ
of certiorari.
This is not the
first occassion on which we have found a
similar prayer when 'the relief claimed was on the basis
that
a
particular legislative measure was unconstitutional and void. It
will not, therefore, be out of pl.ace if for the sake of future drafts
men of writ petitions, we were to draw attention to the true
nature
of the writ of certiorari.
A writ of certiorari can never be issued to call for the record
or
p.tpcrs and proceedings of an Act or Ordinance and for quash
ing such Act or Ordinance. The writ of certiorari and the writs
of h2beas corpus, mandamus, prohibition and quo warranto were
known in English common law as "prerogative writs". "Prerogative
writs,' are to be distinguished from "writs of right" also known as
"writs of course". Writs issued as part of the public administratio-n
of justice are called "writs of right" or "writs of course" because
the Crown
is bound by Magna Carta of 1215 to issue
thew, as for
instance, a writ to commence an action
at common law.
Preroga
tive writs are (or rather, were) so called because they are issued by
virtue of the Crown's prerogative, not as a matter of right but
only oo some probable cause being shown to the satisfaction of
the court why the extraordinary power of the Crown should be
invoked to render assistance to the party. The common laW
,regards the Sovereign as the source or fountain of justice, and
certain ancient remedial processes
of an extraordinary nature,
known as prerogative writs, have from the earliest
timos issued
from the Court
of King's Bench in which the Sovereign was always
present in contemplation
of law. (See Jowitt's
"Dictionary of Law"
vol.2, p. 1885, and Halsbnry's "Laws of England", 4th ed., vol. 11,
para. l451, f.n.3).
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246 SUPREME COIJRT REPORTS [1985] 1 s.c.I\.
We are concerned here with the writ of certiorari "Certio
rari' is a Late Latin word being the passive form of the word
''certiorari" meaning 'inform' and occurred in the original l .. atin
words of the writ which translated read "we. being desirous for
certain reasons, that the said record should
by you be certified to
us,'.
Certiorari was essentially a royal demand for information;
tlie king, wishing to be certified of some matter, orders tilat
the necessary information be provided for him. We find in De
Smith's "Judicial Review of Administrative Action", 4th edition,
page
587, some interesting instances where writs of certiorari were
so issued. Thus, these writs were addrassed to the escheator or
the sheriff to make inquisitions: the earliest being for the year
1260.
Similarly, when Parliament granted Edward Il one foot-soldier for
every township, the writ addressed to the sheriffs to send
in
returns of their townships to the Exchequer was a writ of
certio
rari. Very soon after its first appearance this writ was used to
remove to the King's Court at Westminister the proceedings of
inferior courts of record: for instance, in 1271 the proceedings in
an assize
of darrein presentment were transferred to
Westminister
because of their dilatoriness. This power was also assumed by
the Court
of Chancery and in the Tudor and early
Stuart periods
a writ of certiorari was frequently issued to bring the proceedings
of inferior courts
of common law _before the Chancellor. Later,
however, the Chancery confied its superv;sory functions to inferior
courts
of equity. In
"A New Abridgement of the Law'', Seventh
Edition, Volume!! at pages 9 and 19, Matthew Bacon has desc
ribed a writ of certiorari in these words:
"A CERTIORARl is an original writ issuing out
of Chancery, or the King's Bench, directed in the King's
name,
to the judges or
officers of inferior courts, comma
nding them to return the records of a cause pending
before them, to the end the party may have the more
sure and speedy justice before him,
or such other justice
as he shall assign to determine the
cause,"
By the time of King Charles II, however, applications for
certiorari as also for habeas corpus and prohibition came to be
made usually in the Court
of King's Bench.
The different functions
of the prerogative writs of prohibs-
H tion, certiorari and mandamus have been thus described in
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PRABOihi VERMA v. 1i.P. STATB (Madon, J.) 247
Halsbury's Laws of England, Fourth Edition, Volume I, in para 80: A
"Historically, prohibition was a writ whereby the
.royal courts of common law prohibited other courts from
entertaining matters falling within the jurisdiction of the
common law courts; certiorari
was issued to bring the
record
of an inferior court into the King's Bench for
review or to remove indictments for trial in that court,
mandamus was directed to inferior courts and tribunals,
and to public officers and bodies, to order the performance
of a public duty, All three were called prerogative
writ
5,,. ,,,During the seventeenth century certiorari evol
ved as a general remedy to quash the proceedings
of
inferior tribunals and was used largely to supervise justices
of the peace in the performance of their criminal and
administrative functions under
various statutes, In 1700
(in R, v, Glamorganshire ln!zabitantsO) and Groennevt v.
Burwe//
12
1 it was held that the Court of King's Bench
would examine the proceedings
of all jurisdictions erected
by Act of Parliament, and that, if under pretence of such
an Act they proeeeded to arrogate jurisdiction to them-
selves greater than the Act warranted, the court would
send a certiorari to them to have their proceedings
returned to the court, so that the court might restrain
them from exceeding that jurisdiction.
If bodies exerci
sing such jurisdiction did not perform their duty, the
King's Bench would grant a mandamus, Prohibition
would issue
if anything remained to prohibit. The
ambit
of certiorari and prohibition was not limited to
the supervision
of functions that would ordinarily be
regarded
as strictly judicial, and in the nineteenth century
the writs came to be used to control the exercise
of
certain administrative functions by local and central
government authorities which did not necessarily act
under judicial
forms."
By the Administration of Justice (Miscellaneous provisions)
Act,
1938
(I and 2 Geo. 6 c.63) a more expenditious procedure
was introduced under which· instead
of writs, orders of mandamus
prohibition and certiorari are to be issued and the writ of
qu0
warranto was abolished and its place an injunction is to issue
against the usurper to the office in question restraining him from
(I) [1700] I Ld, Raym. 580.
(2) [1700) 1 Ld. Raym, 454.
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248 SUPREME COURT REPORTS (1985) 1 S.C. R·
acting in that office and, if the case so requires, declaring that
office to be vacant. These were, however, procedural changes
only.
By order 53 of the Rules of the
Supreme Court, 1965, sub·
stitued for the old Order 53 by Rules of Supreme Court (Amend
ment No.3), 1977 (S.I. 1977 No.1955), far reaching changes, not
merely in the form but in the substance
of procedural law, were
introduced whereby reliefs
by way of mandamus, prohibition,
certiorari, declaration and injunction have been joined together
under the general head
of 'judicial review' for which an application
can be
made for any or all of these reliefs in the alternative or
in addition to other reliefs arising out
of the same matter and
the court
is also conferred the power to award damages. An
application, however, cannot be made without leave of the court
and unless the court
"considers that the applicant has a sufficient
interest in the matter to which the application relates". The ex
pression 'sufficient interest' has enabled the court in England to
enlarge tile rule of locus sta11di by giving to that expresiion a libe
ral interpretation.
Jn India, prior to the Constitution, the power to issue prero
gative writs was vested only in three High Courts, that is, the High
Courts established
by Letters
Patent issued by Queen Victoria under
authority given
by the Indian High Courts Act, 1861 (24 & 25
Viet
c, 104) for the establishment of the High Courts of Judicature at
Fort William in Bengal and at Madras and at Bombay for these
three presidencies, namely, the High Courts
of Calcutta, Madras
and Bombay. Hence this Act is genera!ly called the Charter Act
and the High Courts est1blished
tl1ere under the Chartered High
Courts. These High Courts were the successors
so far as their
ori
ginal jurisdictions were concerned of the Supreme Courts which
were established in these three Presidency-towns and inherited from
those courts the powers
of the Courts of King's Bench which
inclu
ded the power to issue prerogative writs, Apart from these three
High Courts none
of the other High Courts in India possessed this
power. The position
was changed when the Constitution of India
came into force. Article
225 continues the jurisdiction of existing
High Courts. Article 226, h)wever, confers upon every High Court
the power to issue to any person or authority, including in proper
cases, any Government, whitin the territories in relation to which
it exercises jurisdiction,
"directions, orders or writs, including writs
in the nature of
habeas corpus, mandamus, prohibition, quo warranto
and certiorari or any of them, for the enforcement of the rights
'
"
Pil.ABODH VERMA v. U.P. STATE (Madon, i.) 249
conferred by Part III or for any other purpose". It may be menti
oned that under Article
32 of the Constitution, the same power as
has been conferred upon the High Courts
is conferred upon this
Court without any restriction
as to territorial jurisdiction but, un
like the High Court,
·restricted only to the enforcement of any of
the rights conferred by Part Ill of the Constitution, namely, the
Fundamental Rights. Referring to Article 226, this Court in
Dwarka
nath, Hindu Undivided Family
v. Income Tax
Officer, Special Cir
cle. Kanpur and another'l said:
"This article is couched in comprehensive phraseo
logy and it ex-facie confers a wide power
on the High
Courts to reach injustice wherever
it is found. The Consti
tution designedly used a wide language in describing the
nature
of the powor, the purpose for which and the person
or authority against whom it can be exercised. It can issue
writs
in the nature
Of prerogative writs as understood in
England but the scope of those 'writs also is widened by the
use of the expression 'nature', for the said expression does
not equate the writs that can be issued in India with
t.hose
in England, but only draws an analogy from them. That
apart
High
Courts can also issue directions, orders or writs
other than
the prerogative writs. It enables the High Courts
to mould the reliefs to meet the peculiar and complicated
requirements
of this country. Any attempt to equate the
scope
of the power of the High Court under Art. 226 of
the Constitution with that of the English
Courts to issue
prerogative writs is to introduce the unnecessary procedural
restrictions grown over the years in a comparatively small
country like England with a unitary form
of government in
to a vast country like India functioning under a federal
structure, such a construction defeats the purpose
of the
article itself. To say this
is not to say that the High Courts
can function arbitarily under this article.
Some limitations
are implicit in the article and others may
be evolved to
direct the article through the definedchannels."
(Emphasis supplied)
The fact that the High Courts and
a fortiori this Court have
po~ mould the reliefs to meet the requirements of each case
(ll [1965] 3 S.C.R. 536, 540-41.
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does not mean that the draftsman of a writ petition should not
apply his mind to the proper relief which should
be asked for and
throw the entire burden
of it upon the Court. An Advocate owes
a duty to his client as well
as to the Court-a duty to his client to
give
of his best to the case which he has undertaken to conduct for
his client and a duty to assist the Court to the utmost
of his skill
and ability in the proper and satisfactory administration of justice.•
In our system of administration of justice the courts have a right
to receive assistance from the Bar and it
is the duty of the advocate
who drafts a writ petition
or any other pleading to ask for
appro
priate reliefs. The true nature of a writ of certiorari has been poin
ted out this by Court in several decisions. We need refer to only
one
of them, namely, Udit Narain
Singh Malpaharia v. Additional
Member, Board of.Revenue, Bihar,'" fn that case Subba Rao. J. as
he then was, speaking for the court, said :
Certiorari lies to remove for the purpose of quashing
the proceedings
of inferior courts of
'"cord or other per
sons or bodies exercising judicial or quasi judicial funct
iops. It is not necessary for the purpose of this appeal to
notice the distinction between a writ
of certiorari and a
writ in the nature
of certiorari: in either case the High
Court directs
an inferior tribunal or authority to transmit
to itself the record
of proceedings pendiDg there in for
scrutiny and,
if necessary, for quashing the same.
A writ in the nature
of certiorari is thus a wholly
inappro
priate relief to ask for when the constitutional validity of a legisla
tive measure is challenged and it is surprising to find that in spite
of repeated pronouncements of this Court as to the true nature of
this writ it should have heen asked for in the Sangh's petition. As
pointed out in Dwarkanath's c•se, under Article 226 the High
Courts have the power to issue directions, orders and writs, inclu·
ding prerogative writs, This power includes' the giving of declara
tions as also consequential reliefs including relief by way of injunc
tion. The proper relief for the petitioners in the Sangh's petition
to have asked was a declaration that U.P. Ordinance No, 22 of
1978 was unconstitutional and void and, if a consequential relief
was thought necessary, a writ
of mandamu' or
writ in the nature of
mandamus or a direction, order or injunction restraining the State
and its officers from enforcing or giving effect to the provisions
of
(I) [1963]
Suppl. I. S.C.R. 676, 682.
,
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PRABODH VERMA v. U.P. STATE (Madon, J.) i.51
that Ordinance. The High Court granted the proper relief by de.::1·
aring that ()rdinance to be void but it should have, before procee
ding to hear the writ petition, insisted that the petitioners should
set their house in order
by amending the petition and praying for
proper reliefs. The High Court
was too indulgent in this matter.
After all, it
was not a petition from a prisoner languishing in jail or
from a bonded labourer or
a-party in person or by a publicspirited
citizen seeking to bring a gross injustice to the notice ot the court
Here, the High Court had before it as the main petitioner a union
which had taken collective action to enforce its demands and had
defied the Government
by flouting its orders and an Ordinance
promulgated
by the Governor,nemely,
U.P. Ordinance No._ 25 of
1977 and had by reason of its collective might ultimately made
the Government come to terms with it. The petitioners were repre·
sented by well known Counsel, one of them practising in this
Court.
It is true
that·neither this Court should dismiss a writ peti·
tion on a mere 'technicality or just because a proper relief is_not
asked for; but from this it does not follow that it should condone
every kind
of laxity. We would not
have dwelt upon this aspect
of the case but for the fact that
we find that laxity in drafting all
types of pleadings
is becoming the rule and a well-drafted
plead
ing, an exception. An ill-drafted pleading is an offspring of the
union of carelessness with imprecise thinking and its brothers arc
slipshod preparation of the case and rambling and irrelevant argu
ments leading to waste of time which the courts can ill afford by
reason
of their overcrowded dockets.
We will now adumbrate the arguments advanced before us at
Bar at the hearing of these Appeals and petitions.
On behalf of
the petitioners and Appellants it
was submitted that the Sangh's
case
was wrongly decided by the Allahabad High Court inasmuch
as the provisions of
U.P. Ordinance No. 22 of 1978 were not vio
lative of either Article 14 or 16(1) of the Constitution, lt was fur·
ther submitted that the reserve pool teachers, all of whom posse
ssed the requisite qualifications, formed a separate and distinct class
by reason
of the service they had rendered to the State in general
and to the educational system
in
Uttar Pradesh in particular in
difficult circumstances and, there fore, they were more suited to
be
appointed to the posts which had fallen vacnt in recognized
insti·
tutions and which were to be filled by direct recruitment than those
who had not rendered such service. On behalf
of the
Sangh, which
was the only contesting Respondent before us, the same arguments
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252 SUPREME COURT REPORTS [1985] 1 s.c.a.
'
which had found favour with the High Court were advanced before
us. Jn the Sangh's case the High Court had held that there was no
justification for the reserve pool teachers not going through the
procedure for filling vacancies prescribed
by section 16-E of the
Intermediate Education Act and that mere service rendered by
them during the period
of the strike in the recognized institutions
did not set them apart
as a separate class. The High Court further
held that
if the vacancies which had occurred were filled only by
appointing teachers from the reserve pool, these teachers would
block the chances
of promotion of other teachers in the Licentiate
Teachers' Grade who were already working in such institutions.
The arguments based on the reasoning
of the High Court advanced
before
us on behalf of the
Sangh were interlarded with vehement
and vociferous professions
of the concern felt by the Sangh for the
maintenance
of a proper educational system in the recognized
insti
tutions ia Uttar Pradesh. After the major part of the arguments
WJs concluded, at the suggestion of learned Counsel appearing
for all parties, further hearing
of these matters was adjourned to
enable the state to find out a workable solution. When the matter
next reached hearing the
state expressed its inability to suggest any
solution. This was not surprising because in view
of the the
judg·
ment of the High Court in the Sangh's case the state obviously
could do nothing
in the matter. What was, however, surprising was
that at this hearing the Sangh made a complete volte-face and
with
drew its opposition to the Appeals and Petitions. On inquiry made
from learned Counsel for the Sangh,
we learnt that in the
interve
ning period all the reserve pool teachers (or at least most of them)
had joined the Smgh and bocome its members. It was somewhat
disconcerting to find that the concern professed by· the Sangh for
a proper educational system in the State
of
Uttar Pradesh was moti·
vated purely by a consideration of its membership and that one e
these reserve pool teachers joined the Sangh and swelled its mem
bership and augmented its funds by paying their subscriptions, they
straightaway became in the eyes
of the Sangh suitable to be
appoin
ted in accordanc with the provisons of U.P. Ordinance No. 22 of
1978. The Court cannot, however, decide constitutional questions
either
by consent of parties or on concession made at the Bar or
because there is no contesting respondent before it. We must,
there
fore, proceed to determine the matter on its merits irrespective of
the attitude of the Sangh, bearing in mind both the reasoning upon
which the High Court proceeded and the arguments advanced by
the Sangh up to the time
of its volte-face.
•
•
•
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•
PRAllODH VERMA v. U.F. STATE (Madon, J.) 253
Article 14 of the Constitution forbids the State to deny to
any person equality before the law or the equal protection of the
laws within the territory of India. While Article 14 applies to all
persons within
the territory of India, Article 16 applies only to
citizens of India.
Clause (I) of Article 16 guarantees equality for all
citizens in matters relating
to employment or appointment to any
office under the
State. Thus, Article 16 is an instance of the appli
cation of the general rule of equality laid down in Article 14, with
special reference to
the opportunity for appointment and
employ
ment under the Government (sec Banarsi Dass and others v. The
State
of Uttar
Pradesh and others'
11
). Today, the Government is the
largest employer in the country and employment or appointment
to an office under it is a valuable right possessed by citizens.
Article 14, however, does
not forbid classification. The principle
underlying the
guarantee of Article 14 is not that the same rules
of law should be applicable to all persons within the territory of
India irrespective of differences of circumstances.
It only means
that all persons similarly circumstanced should be treated alike and
there should be no discrimination between one person and another
if as regards the subject-matter of the legislation, their position
substantially
the same. By the process of classification, the
St'.tte
has the power to determine who should be regarded as a class for
the purposes of legislation and in relation to a law e.1acted on a
particular subject. The classification to be valid, however, must
not be arbitrary but must be rational. It must not only be based
on some qualities
or characteristics which are to be found in all
the persons grouped
together and not in others who are left out
but those qualities or characteristics must have a reasonable nexus
or relation to the object of the legislation. In order to pass
the test,: two conditions have to be fulfilled, namely (I)
that the classification must be founded on an intelligible
differention which distinguishes those
that are grouped together
from others, and (2) the differentia must have a rational nexus or
relation to the object sought to be achieved by the legislation
(see
In re The
Special Courts Bill, 1978)1''.
If Ordinance No.22 of 1978 satisfies these two conditions. it
cannot be said to infringe the provisions of Article 14 nor would
it then be violative of Article 16(1) for it is only when citizens are
(I) [1956] S.C.R. 357, 361.
(Z) [1979] 2 S.C.R. 476~ s~s,
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254 SUPREME COURT REPORTS [1985] I S.C.R.
similarly circumstanced that they can claim equality of opportunity
in matters relating to employment or, to any office under the State.
To afford equal opportunity in these matters to those not similarly
circumstanced would be to treat unequals
as equal and would
violate Article
14.
The first question which, therefore, arises is "Whether there
is any intelligible differentia which distinguishes teachers put in the
reserve pool
by Ordinance No.22 of
1978 from other applicants
for posts
of teachers in recognized
institutions?" The reserve pool
teachers were those
who had come forward at a time when the
teachers employed or a large majority
of such teachers, in the
recognized institutions, bad gone on an indefinite
strike and had
continued the strike even after it had been declared illegal. Had
the strike continued almost all the recognized institutions in the
State would have had to close down putting the students to great
hardship and suffering and causing a break
in their education. It
was in these difficult and trying times that the reserve pool teachers
came forward to man the recognized institutions. Presumably, it
was this that brought about a settlement
of the strike, It must be
borne in mind that the reserve pool teachers joined the recognized
institutions during the period
of the strike in circumstances in
which they exposed themselves to great hostility from the striking
teachers. They, therefore, did
so
r"unning a certain amount of
risk for there is always a possibility of a strike turning violent. Yet
another hazard they faced
was that, were some of the reserve pool
teachers to apply later for the posts
of teachers in a recognized
institution which had fallen vacant and were to be selected under
section
16· E of the Intermediate Education Act, they would have
had to work together with those teachers
who had gone on strike
and had been taken back and they would then have to face their
hostility. The assumption made by the High Court that the
appointment
of reserve pool teachers to the vacancies which had
occurred blocked the chances
of promotion of those working in
the Licentiate Teacher's Grade
was actually not correct.
Sub
section (2) of section 4 ofU.P. Ordinance No.JO of 1978 as also
of U.P. Ordinance No.22 of 1978 expressly provided that the
reserve pool teachers were to be appointed only to those vacan·
cies in recognized institutions which were to be filled by direct
recruitment. There was thus no question
of a vacancy to be filled
by promotion being filled
by any teacher in the reserve pool or of
such reserve pool teachers blocking the chances of promotion of
•
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PRADODH VERMA v. U,P. STATE (Madon, J.) . 255
other teachers working in the Licentiate Teacher's Grade in A
recognized institutions. The reserve pool teachers were originally
appointed during the period
of the strike under
U.P. Ordinance
No.25
of 1977 and it should be borne in mind that this
Ordinance
expressly required appointment of persons possessing requisite
qualification.. All the reserve pool teachers thus possessed the
requisite qualifications and this fact
is not disputed before us. In
the
course of its jndgment the High Court has also proceeded upon
the basis that educational institutions in the State of Uttar Pradesh
did not constitute an essential service but had been declared so by
the notification dated December 24, 1977, issued under the U.P.
Essential Services Maintenance Act, 1966. This assumption was
also not correct. As pointed out earlier, sub-clause (ii) of clause
(a)
of section 2 of the
U. P. Essential Services Maintenance Act,
1966, made service under an educational institution recognized
inter a/ia by the Board of High School and Intermediate Education,
Uttar Pradesh an essential service. The said notification dated
December
24, 1977, issued under section 3(1) of that Act
wa; to
prohibit strikes in service under educational institutions.
An
imp
ortant factor in considering whether the reserve pool teachers
could constitute a separate class having an inteligible dilferentia
distinguishing them from other applicants for the posts
of teachers
in recognized institutions
is that usually every year the number
of vacancies which occur in recognized institutions is more than
the number
of reserve pool teachers. Admittedly, the vacancies
which were sought to be filled
by
U.P. Ordinance No, 10 of 1978
and thereafter by U.P. Ordinance No.22 of 1978 were more than
the number
of reserve
p,10! teachers. These vacancies had occur-
red within a
few months of the strike being settled. Almost all
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who applied for these posts and were not in the reserve pool must F
have been qualified to be appointed to posts in recognized
insts
tutions during the prndency of the strike. None of these appli-
cants, however, came forward to join a recognized institution
during that period as the reserve pool teachers did. The other
applicants for the posts
of teachers, therefore, stood in a different
class from the reserve pool teachers and it would be wrong to
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equate these two classes together as forming just one class.
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
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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
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
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
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.
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
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
•
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PRABODH VERMA v. U.P. STATE (Madon, J.) 257
system of High School and Intermediate Education in the State of
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
by tlie Intermediate Education Act.
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
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
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
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
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
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
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258 SUPREME COURT REPORTS [1985] l S.C.R.
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.
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
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
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
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
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
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
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
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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
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
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
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
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
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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
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
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
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.
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
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.
(2) The Allahabad High Co: t 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
B
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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.
B
c
D
(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
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.
(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
E for, it should not, therefore, condone every kind
of laxity,
parti
cularly where the petitioner is represented by an advocate.
F
G
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(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".
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PRABOD!i VERMA v. u·p, STATE (Madoll, J.) 263
(8) Similarly, by reason of the provisions of section 30 of the
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
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-
A
B
~ 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'
. .
(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
D
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.
(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·
G
ced, there could be noquestion of these classes of persons being H
A
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264
SUPREME COURT REPORTS [1985] I S.C.R.
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.
(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
. 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.
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. ·
. . (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
filled and in all likelihood those so appointed have been confirmed
•
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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
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.
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
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
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.
2. 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
A
B
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D
E
F
G
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.266
A
B
c
D
SU!'Rl!ME COURT kEPokt
[i985J 1 S.C.k•
on which he or she would have been confirmed in the
normal and usual course. · ·'
3. We further direct that the remaining teachers in the re
serve pool be appointed in accordance with the provi
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.
4. 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
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
F
G
H
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 :
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."
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
..
,j
•
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PJ\ABODH VERMA v. U.P. STATE (Madon, J.) 267
to pay substantial fees to their advocates but that cannot be a rea
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
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
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.
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
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,
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
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.
A
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The Supreme Court's landmark ruling in Prabodh Verma v. State of Uttar Pradesh stands as a critical judicial precedent, particularly elucidating the precise nature of the Writ of Certiorari and the principles of procedural justice. This definitive judgment, available on CaseOn, serves as an essential guide on the constitutional validity of legislative classifications and the imperative of impleading necessary parties in writ petitions. It meticulously dissects the errors in judicial procedure and reaffirms the core tenets of equality enshrined in the Constitution of India.
The case originated from a widespread teachers' strike in Uttar Pradesh in 1977. The state government, invoking the U.P. Essential Services Maintenance Act, declared the strike illegal. When a significant number of striking teachers refused to resume their duties, their employment contracts were rendered void by a new ordinance. To prevent the collapse of the educational system, the government appointed 2,257 temporary teachers to fill these vacancies.
Subsequently, a settlement was reached with the striking teachers. This led to the termination of the newly appointed temporary teachers. To address their situation, the government promulgated the U.P. High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978. This ordinance created a 'reserve pool' of these temporary teachers, giving them preferential rights to be absorbed into future substantive vacancies. This legislative action was challenged by the Uttar Pradesh Madhyamik Shikshak Sangh (the teachers' union) before the Allahabad High Court.
The Sangh's writ petition argued that the ordinance created an unfair preference, violating the principles of equality enshrined in Articles 14 and 16 of the Constitution. Critically, the 'reserve pool teachers'—the very individuals whose employment and livelihood were at stake—were not made parties to this petition. The Allahabad High Court, without hearing them, sided with the Sangh and struck down the ordinance as unconstitutional. Acting on this judgment, the State Government terminated the services of all teachers appointed from the reserve pool. Aggrieved by this decision, these teachers, led by Prabodh Verma, appealed to the Supreme Court.
The Supreme Court meticulously deconstructed the High Court's judgment, focusing on both severe procedural lapses and the substantive question of constitutional validity.
The Supreme Court identified two fundamental procedural defects in the Sangh's petition and the High Court's handling of it:
The core substantive question was whether the preferential treatment given to the 'reserve pool teachers' was constitutionally valid. Specifically, did the classification of these teachers as a separate group violate the right to equality under Article 14 and the right to equal opportunity in public employment under Article 16?
The Supreme Court's decision was anchored in established legal principles concerning judicial procedure and constitutional law.
A court should not hear and dispose of a writ petition without the presence of all persons who would be vitally affected by the judgment. If the number of affected persons is too large, they should be impleaded in a representative capacity. A failure to do so is a fatal flaw, and the court ought to dismiss the petition for non-joinder.
A writ of certiorari is a judicial order directed to an inferior court, tribunal, or authority, commanding it to transmit the record of its proceedings for review and potential quashing. It is a tool to correct errors of jurisdiction or law apparent on the face of the record in judicial or quasi-judicial orders. It cannot be issued to declare a legislative Act or Ordinance unconstitutional. The proper relief in such cases is a declaration of unconstitutionality and, if needed, a consequential writ of mandamus to prevent its enforcement.
Article 14 forbids class legislation but permits reasonable classification. For a classification to be valid, it must satisfy two conditions:
The Supreme Court found the High Court's judgment to be erroneous on all counts.
Firstly, the Court strongly condemned the procedural laxity. The High Court should never have proceeded to hear the case without the reserve pool teachers being represented. Deciding their fate in their absence was a gross violation of the principles of natural justice.
Secondly, the Court criticized the poorly drafted prayer for a writ of certiorari, noting it showed a misunderstanding of basic legal remedies. It emphasized that while courts should not dismiss petitions on mere technicalities, they must not condone every kind of laxity, especially from organized bodies represented by counsel.
Legal professionals often grapple with the nuances of writ petitions and constitutional challenges. Understanding rulings like Prabodh Verma v. State of Uttar Pradesh is crucial, and resources like CaseOn.in's 2-minute audio briefs can significantly aid in quickly grasping the core arguments and judicial reasoning of such complex cases.
On the substantive issue, the Court applied the two-pronged test for classification. It held that the reserve pool teachers formed a distinct class. The 'intelligible differentia' was their service to the state's educational system during a time of crisis, a service no other applicants had rendered. The 'rational nexus' was clear: the objective of the ordinance was to reward those who had helped maintain the essential service of education and thereby ensure the system's smooth functioning. This act of rewarding past service also served as an incentive for others to assist the state in future crises. Therefore, the classification was reasonable and did not violate Articles 14 or 16.
The Supreme Court concluded that the High Court's decision was wrongly decided and must be overruled. It held that the ordinance was constitutionally valid. The Court's primary duty was to undo the injustice caused by the incorrect High Court judgment. It, therefore, passed the following orders:
The Supreme Court allowed the appeals, reversing the Allahabad High Court's judgment. It upheld the constitutional validity of the U.P. (Reserve Pool Teachers) Ordinances, 1978, finding no violation of Articles 14 or 16. The Court established that the reserve pool teachers formed a valid class based on their service during the teachers' strike. It heavily criticized the High Court for proceeding with the case without the affected teachers being impleaded and for entertaining an improperly framed prayer for a writ of certiorari to quash legislation.
This judgment is an indispensable read for law students and legal practitioners for several reasons:
The information provided in this article is for informational purposes only and does not constitute legal advice. It is a summary and analysis of a judicial pronouncement and should not be relied upon as a substitute for professional legal counsel.
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