1996 Supreme(SC) 2065

1997(5) Supreme 595
SUPREME COURT OF INDIA
N.P. Singh and S.B. Majmudar, JJ.
Munishwar Dutt Pandey -Appellant
versus
Ramjeet Tiwari & Ors. -Respondents
Civil Appeal No. 7943 of 1996
Decided on 3-12-1996
Counsel for the Parties :
For the Appellant : K.B. Sinha, Sr. Advocate and S. Kulshreshtha, Advocate.
For the Respondents : Shrish Kumar Misra, Ms. Niti Dikshit and Ms. Meenakshi Arora, Advocates.

Headnote:(i) Service Law-U.P. Secondary Education Services Selection Board Act, 1982-Section 33-A as amended by (Amendment) Act, 1991-Applicability-Writ petitioner appointed by promotion on ad hoc basis against substantive vacancy of Principal w.e.f. 1.7.1988 as the then Principal retired-Managing Committee passed a Resolution on 29.10.1988 accepting his ad hoc appointment-Approval u/s 18 given-Amendment of Section 33-A-Whether petitioner is entitled to get benefit of deemed regularisation of his ad hoc promotion u/s 33-A (1)(1-A) of the Act?-(Yes)-Whether petitioner s appointment by way of promotion was u/s 18 of the Act?-(No)-Whether petitioner s appointment as ad hoc Principal was effective from 1.7.1988 or from 29.10.1988 ? - (Held, from 1.7.1988-Appointment of petitioner got covered by para 2 r/w para 4 of Removal of Difficulties Order.

       Held that much before the coming into operation of Section 33-A(1)(1-A) the writ petitioner was promoted on ad hoc basis as Principal of the College against the substantive vacancy caused by the superannuation of the then Principal. The appointment of writ petitioner by promotion on ad hoc basis on the post of Principal when a substantive vacancy was caused on account of the retirement of the erstwhile Principal got squarely covered by paragraph 2 read with paragraph 4 of the Order and it could not be said, therefore, that the second condition for applicability of Section 33-A(1)(1-A), was not fulfilled in the present case as erroneously held in the judgment under appeal. The second condition for applicability of Section 33-A(1)(1-A), therefore, is also complied with in the present case by the writ petitioner. So far as the third condition is concerned there is no dispute that the writ petitioner possessed all the qualifications prescribed under the Act of 1991 for filling up the said post. So far as the fourth and fifth conditions are concerned they are also fulfilled by the writ petitioner as he claims regularisation from the date of commencement of the Amending Act of 1991, that is, with effect from 8th April 1991 and till that date he had worked as promotee Principal on ad hoc basis continuously from the date of his initial entry as a promotee ad hoc Principal of the College. Thus all the five conditions for applicability of Section 33-A(1)(1-A) were fulfilled by the writ petitioner. It must, therefore, be held that he became a regularised Principal of the College with effect from 6th April 1991 and had to be treated to be on probation on the said post of Principal from 6th April 1991 as laid down by Section 33-A(1)(1-A) and 33-A(2) of the Act. Once this conclusion is reached the subsequent interviews for filling up the post of Principal as held on 15th April 1991 and the recommendation of Selection Committee on 3rd May 1991 would become redundant and otios as such a recommendation would be to a post which no longer existed or being filled in by direct selection. (Para 13)

       Further held : For applicability of Section 18 two conditions are required to be fulfilled -(i) the management must have notified the vacancy to the Commission in accordance with the provisions of the Act and the rules framed thereunder which lay down that on occurrence of vacancy within 15 days the management has to notify such vacancy to the Commission and the management has to send names of two senior-most teachers whose claims have to be considered by the Commission, and (ii) after such notification the Commission should have failed to recommend the name of any suitable candidate for a period of one year or the concerned post should have remained actually vacant for more than two months. If these two contingencies occur then the management may appoint by promotion a teacher on purely ad hoc basis as per Section 18. (Para 14)

       None of the conditions for applicability of Section 18 is shown to have existed on the facts of the present case, as the writ petitioner was put in saddle as Principal of the College by the Managing Committee itself ratifying his promotion on ad hoc basis with effect from 1st July 1988 prior to the notifying of the vacancy by the management to the Commission and such appointment being made not within two months of such notification and as the said post had not remained actually vacant during that period on account of the ratification by the Managing Committee of the action of its President. (Para 17)

       Consequently held that the writ petitioner s appointment by promotion as ad hoc Principal was effective from 1st July 1988. (Para 18)

       (ii) U.P. Secondary Education Services Selection Board Act, 1982-Sections 18 and 33-U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981-Paras 2 and 4-Scope of-Para 2 as substituted by Second Removal of Difficulties Order would take in its sweep even future substantive vacancies of teachers including Principals-Vacancy of Principal of College which arose on superannuation of the then Principal-Covered by these Orders-Paras 2 and 4 to be read together.

       Held that paragraph 2 as substituted by the Second Removal of Difficulties Order would take in its sweep even future substantive vacancies of teachers including Principals which might be caused on account of contingencies contemplated thereunder and the said Order would continue to operate till it was rescinded. (Para 12)

       (iii) Interpretation of Statutes-Preamble-When provisions of Statute are not clear-Preamble can be looked at to find out real object of enactment-Preamble of a statutory instrument cannot control express clear language and sweep of the operating provisions of such an instrument.

       Held : It is now well settled that the Preamble of a statutory instrument cannot control the express clear language and sweep of the operating provisions of such an instrument. Nor can the express language of a statutory provision be curtailed or read down in the light of the Preamble in the absence of any ambiguity in the enacted provision. (Para 11)

       Further held : There cannot be any dispute in connection with the settled legal position that when the provisions of the Statute are not clear Preamble can be looked at to find out the real object of enactment. But in the present case as we have seen earlier whatever the Preamble might have said a clear distinct intention to the contrary is seen from substituted paragraph 2 by Second Removal of Difficulties Order. It must, therefore, be held that the Order making authority had tried to go beyond the scope of the Preamble while enacting the substituted paragraph 2 when the earlier paragraph 2 of the First Order ran parallel to the Preamble. Even otherwise as held by this Court in the case of Prabhat Kumar Sharma & Ors. v. State of U.P. & Ors., JT 1996(8) SC 579 the Removal of Difficulties Order has a permanent operational effect and would necessarily, therefore, cover all future vacancies after 1981. (Para 11)

       (iv) Subordinate Legislation -U.P. Secondary Education Services Selection Board Act, 1982-Section 33-U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981-When the Order operates, provisions of the Act which may be covering the field will get modified or altered or even omitted -That exercise is permitted by the parent legislation itself by enacting Section 33-No inconsistency between Section 18 and Section 33-A including Section 33-A(1)(1-A). (Para 16)