Holding

The appellant’s ad hoc appointment as Principal from 1 July 1988 was regularised by the deeming provision of Section 33‑A(1‑A) effective 6 April 1991, so the subsequent selection of the respondent was void.

Summary

Munishwar Dutt Pandey, the senior-most lecturer, was appointed ad hoc Principal of Brijendra Mani Inter College on 1 July 1988 after the previous principal retired. The college’s managing committee later ratified this appointment on 29 October 1988. When the Uttar Pradesh Secondary Education Services Selection Boards (Amendment) Act, 1991 introduced Section 33‑A(1‑A), Pandey claimed his ad hoc promotion was regularised with effect from 6 April 1991, rendering the subsequent selection of Ramjeet Tiwari by the Board void. The Division Bench of the Allahabad High Court rejected this claim, but the Supreme Court held that all conditions of Section 33‑A(1‑A) were satisfied, that the removal‑of‑difficulties orders applied to future vacancies, and that Pandey’s appointment was effective from 1 July 1988. Consequently, the vacancy ceased to exist on 6 April 1991 and the Board’s selection process was otiose. The Supreme Court restored the Single Judge’s order and allowed Pandey’s writ petition.

Issues considered

Whether the appellant is entitled to regularisation under Section 33‑A(1‑A) of the U.P. Secondary Education Services Selection Boards Act, 1982.
Whether the appellant’s ad hoc appointment was made under Section 18 of the Act.
From which date the appellant’s ad hoc appointment as Principal became effective – 1 July 1988 or 29 October 1988.
Whether the Removal of Difficulties Orders of 1981 (as amended) apply to vacancies arising after their commencement.
Whether the selection process conducted after 6 April 1991 was legally valid.

Legislation cited

Intermediate Education Act, 1921

Subjects

regularisationad hoc appointmentprincipalRemoval of Difficulties Orderstatutory interpretationdeeming provisionSection 33‑ASection 18vacancyselection board

Judgment

MUNISHWAR DUTT PANDEY A
v.
RAMJEET TIWARI AND ORS.

DECEMBER 3, 1996

[N.P. SINGH AND S.B. MAJMUDAR, JJ.] B

U.P. Secondary Education Se1vices Selection Boards Act, 1982/U.P.
Secondmy Education Services Commission Rules 1983/U.P. Secondmy
Education Se1vices Commission (Removal of Difficulties) Order 1981:
c
Ss. 2(k), 16, 18, 33, 33-A(l)(l-A)!Rule 4/Paragraph 2 as substinued by
U.P. Seconda1y Education Se1vices Commission (Removal of Difficulties)
(Second) Order, 1981 and Paragraph 4-P1incipal-Ad hoc appoint-
ment-Regulmisation of-Existing Principal retired on 30.6.1988--Cliainnan
of Managing Committee appointed appellant as P1incipal w.e.f 1.7.1988 D
subject to decision of Managing Committee-Managing Committee accepted
appointment on 29.10.1988--Board conducted inteiviews on 15.4.1991 and
selected respondent as Piincipal-Consequently respondmt was appointed as
Piincipal-Wiit petition of appellant allowed by Single Judge of High Cowt
but dismissed by its Division Bench-Held appellant was regularised by
deeming provision of s.33-A(l)( 1-A) as P1incipal w.e.f 8.4.1991 and respon- E
dent could not be appointed to the post subsequently-Substimted paragraph
2 of Removal of Difficulties (Second) Order has no nexus to existing vacan-
cies on date of its con1niencenlent; it applies to substantive vacancies caused
in future which could be filled by Management by promotion on purely ad
hoc basis-By resolution dated 29.10.1988 the Managing Committee accepted
and ratified the ad hoc appointment of appellant as Principal w.e.f
F
1. 7.198fr-Intennediate Education Act, 1921.

Inteipretation of Statutes.

Preamble-Held cannot control the CJ.press clear language and sweep G
of operating provisions of an instnunent.

Words and Phrases :

Expression 'Teacher' occuning in s.2(k) of U.P. Secondary Education
Se1vices Selection Boards Act, 1981-Held includes 'P1incipal. H
439
440 SUPREME COURT REPORTS (1996] SUPP. 9S.C.R.
A The appellant was the seniormost lecturer and the contesting respon-
dent was the second seniormost lecturer of the respondent-Inter College.
On the superannuation of the Principal on 30.6.1988, the Secretary of the
Managing Committee of the College recommended that charge of the post ·~
of the Principal be given to the appellant. The President/Chairman of the
Managing Committee accepted the recommendation and issued a letter
B appointing the appellant as ad hoc Principal of the College w.e.f. 1.7.1988.
It was mentioned in the letter that the appointment was purely ad hoc and
would last till a suitable candidate was appointed by the U.P. Secondary
Education Services Selection Board or till any other decision was taken by
the Management. The Managing Committee passed a resolution on
C 29.10.1988 accepting the ad hoc appointment of the appellant. The appoint·
ment was approved by the District Inspector of Schools. In July 1988 the
Managing Committee of the College forwardeJ the names of the appellant
and the contesting respondent to the Board for consideration to the post
of Principal. The Board conducted the interviews on 25.4.1991 and selected
the respondent as the Principal. Consequently, the Managing Committee
D appointed the contesting respondent to the post of Principal by resolution
dated 13.5.1991.

Meanwhile the U.P. Secondary Education Services Selection BQards
Act, 1982 was amended and by s. 33-A(l)(l·A) thereof, appointments of
E those teachers who were promoted under paragraph 2 of the Removal of
Difficulties Order, 1981 were regularised provided they had been con-
tinuously serving from the date of such appointment to the date of amend-
ment, i.e. 6.4.1991. Consequently, the appellant filed a writ petition claiming
that by virtue of the amended provisions u/s 33-A(l)(l·A), his ad hoc
appointment as Principal w.e.f. 1.7.1988 stood regularised and he was en-
F titled to continue as the regular Principal of the College. The respondent
also filed a writ petition contending that he was entitled to continue as a
regularly selected Principal of the College. The Single Judge of the High
Court, taking note of s.33-A(l) (l ·A), allowed the claim of the appellant and
dismissed the writ petition of the respondent. On .appeal, the Division
G Bench of the High Court rejected the claim of the appellant and set aside
the judgment of the Single Judge. Aggrieved, the appellant filed the present
appeal.

It was contended for the appellant that eversince his promotion on
ad hoc basis w.e.f. 1.7.1988, he continued as the Principal of the College
H till the commencement of the amended provision u/s 33-A(l)(l·A) of the
M.D.PANDEYv. R. TIWARI 441
Act i.e. 6.4.1991, and as such, his appointment as the Principal was A
required to be regularised, and the subsequent interviews held by the
Board and selection of the respondent were an exercise in futility, as they
related to a post which was no longer vacant from 6.4.1991 onwards. The
contention of the respondent was that substituted paragraph 2 of the
Removal of Difficulties (Second) Order, 1981 would not apply in the case
B
of appointment of the appellant as it would limit the substantive vacancies
on the date of commencement of the Second Order; and that appellant's
appointment was made in accordance with s.18 of the Act. It was also
contended by the respondent that the resolution passed by the Managing
Committee of the College on 29.10,1988 was prospective and it could not
retrospectively promote the appellant w.e.f. 1.7.1988 and as such the ap- C
pellant got no benefit of s.33-A(l)(l-C).

Allowing this appeal, this Court

HELD : 1. The Division Bench of the High Court was in error in
upsetting the decision of the Single Judge who had held in favour of the D
appellant. The appellant was regularised by the deeming provision of Sec-
tion 33-A(l)(l-A) of the U.P. Secondary Education Services Selection
Board Act, 1982 as the Principal of the College with effect from 9.4.1991 and
the contesting respondent, therefore, could not be appointed to the said
post pursuant to the seiection process which became abortive and inopera- E
tive in law as there was in fact no vacancy of Principal which could be filled
up by any selection process undertaken after 8th April, 1991.
[477-H; 478-A-B)
2.1. Section 33-A(l)(l-A) shows that before it can be pressed in
service the following conditions must be satisfied by the concerned teacher
F
who claims to be regularised thereunder :

(i) A teacher including the Principal as per Section 2(k) of the Act
must have been appointed by promotion on ad hoc basis against a sub-
stantive post;
G
(ii) Such appointment must have been made in accordance with
paragraph 2 of the First Order of 1991 as amended from time to time;

(iii) He must possess the qualifications prescribed under the Inter-
mediate Education Act, 1921 or might have been exempted from such
qualifications; H
442 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A (iv) Regularisation will be with effect from the date of the commen-
cement of the Amending Act of 1991; and

(v) Such teacher should be continuously serving in the institution
from the date of his initial ad hoc appointment till the date of the
commencement of the Amending Act of 1991. (465-E-H; 466-A)
B
2.2. Admittedly the appellant was senior to the respondent and the
Management, in July 1988, sent a requisition to the Board for selection of
a regular Principal of the College and it had also sent the names of both
these contesting teachers to the Board; but before the Board could call them
C for interview, the appellant got appointed by promotion w.e.f. 1.7.1988. The
appellant was thus appointed by promotion on ad hoc basis against sub-
stantive vacancy of Principal much before the coming into operation of
s33-A(l)(l-A) of the Act. Therefore, on the facts of the case the first
condition got satisfied. [473-B-C, 470-B]

D 23. The appointment of appellant 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 1981 Order and it could not be said,
therefore, that the second condition for applicability of section 33-A(l)(l-
A) was not fulfilled in the present case an erroneoulsy held in the judgment
E under appeal. The second condition for applicability of Section 33-A(l)(l-
A), therefore, is also complied with in the present case by the appellant.
[471-F-G)
2.4. So far as the third condition is concerned, there is no dispute
that the appellant possessed all the qualifications prescribed under the
F Act of 1921 for filling up the said post. [471-H)

2.5. So far as the fourth and fifth conditions are concerned, they are
also fulfilled by the appellant as he claims regularisation from the date of
commencement of the Amending Act of 1991, that is, with effect from 6th
G 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. [471-H; 472-A)

2.6. All the five conditions for applicability of Section 33-A(l)(l-A)
were fulfilled by the writ petitioner and as such he became a regularised
H Principal of the College with effect from 6th April, 1991 and had to be
M.D.PANDEYv. R. TIWARI 443

treated to be on probation on the said post of Principal from 6th April A
1991 as laid down by Section 33·A(l)(l·A) and 33·A(2) of the Act. Conse·
quently the vacancy of the post of Principal ceased to exist on and from
·· 6th April, 1991 and 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 otiose as such B
a recommendation would be to a post which no longer existed for being
filled in by direct selection. [472-B·C]

3.1. Paragraph 2 as substituted by the Removal of Difficulties
(Second) Order has no nexus to any existing vacancy on the date of
commencement of the Order or to a vacancy arising only within a period C
of two months there-after. On the contrary, it operates in future and takes
in its sweep all substantive vacancies of teachers, including that of Prin·
cipal, caused in future by death, retirement, resignation or otherwise of a
teacher which could be filled up by the management by promotion on
purely ad hoc basis. [467-C·D]
D
3.2. Preamble of a statutory instrument cannot control the express
clear language and sweep of the operating provisions of such an instru·
ment. Nor can the express lan§llage 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. [467-G-H] E
Rashtriya Mill Mazdoor Sangh v. National Textile Corporation (South
Maharashtra) Ltd. and Ors., (1995) 6 SCALE 609, relied on.

State of Kamataka & Anr. etc. v. Shri Ranganatha Reddy & Anr. Etc.,
[1978] 1 SCR 641; Secretary, Regional Transport Authority, Bangalore and F
Anr. v. D.P. Shanna & Ors., [1989] Supp. 1 SCC 407; His Holiness
Kesavananda Bharati Sripadagalvaru etc. v. State of Kera/a & Anr. Etc.,
[1973] SCC 225 and Minerva Mills Ltd. & Ors., v. Union of India &
Ors., [1980] 2 SCC 591, cited.

33. In the instant case, whatever the Preamble might have said, a G

- clear distinct intention to the contrary is seen from substituted paragraph
2 by Removal of Difficulties (Second) Order. The Order making authority
had tried to go beyond the scope of the Preamble while enacting ti1e
substituted paragraph 2 when the earlier paragraph 2 of the First Order
ran parallel to the Preamble. [468-G-H] H
444 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.

A 3.4. Even otherwise, the Removal of Difficulties Order has a per-
manent operational effect and would necessarily, therefore, cover all futnre
vacancies after 1981. (468-H; 469-A]

Prabhat Kumar Shanna & Ors. v. State of UP. & Ors., JT (1996) 6
SC 579, relied on.
B
Radha Raizada & Ors. v. Committee of Management, Vidyawati Dar-
bari Girls College & Ors., (1994) 3 UPLBEC 1551, referred to.

4.1. Paragraph 2 of the 1981 Order as substituted by Second Order
C in juxtaposition with paragraph 4 of the First Order which had remained
unamended and untouched by the Second (Amendment) Order, both
operate on the same field. Paragraph 2 as amended stated that the
management may appoint by way of promotion a teacher on purely ad hoc
basis in accordance with the provisions of the Order in case of substantive
vacancy caused, amongst others, by retirement of the outgoing teacher. As
D 'tfacher' includes Principal as provided by Section 2(k) of the Act the
thrust of the amended paragraph 2 would read that a substantive vacancy
of Principal also can be filled up by the management by promotion of a
teacher on purely ad hoc basis. But while filling up such vacancy by
promotion on ad hoc basis the procedure laid down by the Order has to
E be kept in view. Paragraph 2 specifies the vacancy and paragraph 4 deals
with the procedure for filling up such a vacancy. (470-F-H; 471-B]

4.2. Paragraph 4 of the Order lays down the procedure and gives the
guidelines as to how the vacancy of the head of the institution, i.e. the
Principal as earmarked by paragraph 2 has to be filled in. It states that
F ad hoc appointment by promotion in the post of Head of the Institution
has to be made only by appointing the seniormost teacher of the institn-
tion. It is not as if paragraph 4 operates independently of paragraph 2 as
paragraph 2 in its sweep covers substantive vacancies of all teachers who
might have died or retired or resigned or might have gone ont otherwise.
But while coming to the Head of the Institution, special procedure has been
G provided in paragraph 4 and to that extent paragraph 4 is a proviso to
paragraph 2 or is complementary to it and both operate in the same field
when the question of filling up of a substantive vacancy of a Principal who
is Head of the Institution, arises for the management which has to fill up
-
such a vacancy on ad hoc basis by appointing the senior-most teacher of
H the Institution in the lecturers' grade. [471-A-D]
M.D.PANDEYv. R. TIWARI 445

5.1. Section 18 was not attracted in the facts of the present case. For A
applicability of Section 18 two conditions are required to be fulfilled • (i)
the management must have notified the vacancy to the Commission on
occurrence of vacancy within 15 days and the management has to send
names of two seniormost teachers whose claims have to be considered by
the Commission and (ii) after such notification the Commission should
B
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. [472-G-H; 473-A-B]
c
5.2. None of the conditions for applicability of section 18 is shown to
have existed on the facts of the present case, as the appellant was put in
saddle as Principle 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 D
such appointment being made not within two months of such notification
and as the said post had not rema-ined actually vacant during that period
on account of the ratification by the Managing Committee of the action of
its President. [477-E-F]

6.1.Though s.18 of the Act and paragraph 2 of the Order deal with E
the same topic, namely, 'Ad hoc appointment ot' teachers in an institution
governed by the Act', but Section 33 shows that the legislature in its
wisdom has provided that the Order making authority may in case of
difficulties remove the same by notified order. Once that happens the
Order itself has the effect of modifying or even omitting the existing F
provisions of the Act for the period specified in the Order. As there is no
specification of any period of life for the Order and it operates on a
permanent basis, when the Order operates the provisions of the Act which
may be covering the field will themselves get modified or altered or even
omitted. That exercise is permitted by the parent legislation itself by
enacting Section 33. Even that apart, sob-section (2) of Section 33 itself G
provides that such an order has to be laid before both the Houses of the
State Legislature. So it would get the sanction of the parent legislature
itself. [476-F-H; 477-A-B]

6.2. Section 16 of the Act which deals with' appointment to be made H
446 SUPREME COURT REPORTS [1996] SUPP. 9 S;C.R.
A only on recommendations of the Commission or the Board' is expressly
made subject to Section 33 and 33-A, amongst others. These provisions are
in the parent Act itself and consequently Section 33-A which is a part and
parcel of the parent provision has to operate of its own and there cannot
be inconsistency or incongruity between the two provisions of the same Act,
B namely, Section 18 on the one hand and Section 33-A including Section
33-A(l)(l-A) on the other. [477-B-C]

7.1. The appellants appointment by promotion as ad hoc Principal
was effective from 1st July, 1988 and the appointment was obviously made
by the President of the College appointing the appellant on the post of
C .Principal by promotion on ad hoc basis. But the said appointment was
made subject to any contrary decision by the Management or selection of
a candidate from the Secondary Education Services Commission and in
either of these two eventualities the appointment of the appellant was
automatically to come to an end.Now it must be kept in view that President
of the College was not a mere manager and he could act on behalf of the
D Managing Committee subject to the ratification of his action by the
Managing Committee and that precisely happened by Resolution No. 2 of
the Managing Committee dated 29th October, 1988. [474-A-C]

7.2. The phraseology employed by the Managing Committee in its
E Resolution of 29th October 1988 leaves no room for doubt that it had
accepted and ratified what its President had done when he passed the first
order promoting on ad hoc basis the appellant as Principal of the College
with effect from 1st July 1988. [476-B]

. 7.3. The operative part of the Resolution clearly mentions that
F 'Managing Committee unanimously accepts the ad hoc appointment' of the
appellant. Acceptance of the ad hoc appointment is different from ordering
ad hoc appointment. In other words the operative part of the Resolution
does not read that the Managing Committee unanimously appoints the
appellant as ad hoc Principal. On the contrary it states that the 'Managing
G Committee unanimously accepts the ad hoc appointment of the appellant
meaning thereby that the ad hoc appointment of the appellant made by the
President with effect from 1st July 1988 is ratified and approved. The aspect
is further highlighted by the approval granted by the Inspector of Schools
to the said appointment by promotion for the purpose of salary grant from
1st July 1988 as seen from the letter of District Inspector of Schools dated
H 19th May 1989 which accorded sanction for payment of salary for ad hoc
M.D.PANDEYv. R. TIWARI [S.B.MAJMUDAR,J.] 447

appointment of the appellant, seniormost lecturer of the College from the A
date of taking over charge of the post of Principal which fell vacant due to
retirement of the appellant. [475·B·F]

8. The order of the Division Bench of the High Court is quashed and
set aside and instead the order passed by the Single Judge on 7th Septem·
her, 1992 is restored. Appellant's writ petition will accordingly stand al· B
lowed. The appellant is entitled to function as fulfledged Principal of the
College subject to his probation being declared by the Management.
(478-C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7943 of
~. c
From the Judgment and Order dated 22.3.96 of the Allahabad High
Court in SA.No. 300 of 1992.

K.B. Sinha and S. Kulshreshtha for the Appellants.
D
Shrish Kumar Misra, Ms. Niti Dikshit and Ms. Meenakshi Arora for
the Respondents.

The Judgment of the Court was delivered by
E
S.B. MAJMUDAR, J. In this appeal by special leave under Article
136 of the Constitution of India the appellant has brought in challenge the
decision rendered by a Division Bench of the High Court of Judicature at
Allahabad, Lucknow Bench in Special Appeal No. 300 of 1992 moved by
fespondent no. 1 against a common judgment and order of the learned
Single Judge in three writ petitions filed by the contesting parties to these F
proceedings, namely, the appellant on the one hand and respondent no.l
on the other. The short question involved in these proceedings is as to
whether the appellant Munishwar Dutt Pandey or respondent no.l Ram·
jeet Tiwari is entitled to continue as Principal of Brijendra Mani Inter
College, Kohandaur, Pratapgarh functioning in the State of Uttar Pradesh. G
For the sake of convenience we will refer to the appellant as original writ
petitioner and respondent no.l as the main contesting respondent.

A few relevant facts leading to these proceedings deserve to be noted
at the outset. The original writ petitioner and the contesting respondent
were appointed as teachers in the aforesaid Brijendra Mani Inter College, H
448 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A Kohandaur in Pratapgarh District of State of Uttar Pradesh. Both of them
were working as lecturers in their respective Departments of Sanskrit and
Geography. One J agdeo Prasad Misra was working as regularly appointed
Principal of the said Brijendra Mani Inter College !hereinafter referred to
as 'the College'). He retired from service on 30th June 1988 on attaining
the age of superannuation. Immediately before his retirement, said Shri
B Misra addressed a letter jointly to the Chairman/President of the Managing
Committee of the College and its Secretary enquiring from them as to
whom he should hand over charge on his retirement. In that letter he
mentioned that the writ petitioner was the senior most lecturer of the
College having been appointed on 12th August 1969 and the second senior
c most lecturer in the College was the contesting respondent. On this letter
of retiring Principal, the Secretary of the Managing Committee made an
endorsement to the President/Chairman of the Committee stating that Shri
Misra was superannuating on 30th June 1988 and the writ petitioner was
the senior most lecturer of the College and therefore, he recommended
D that the charge of the post of Principal be given to him. This recommen-
dation was accepted by the President/Chairman of the Committee on 1st
July 1988. Pursuant to this order, a Letter of Appointment effective from
1st July 1988 was issued to the writ petitioner under the signature of
Chairman/President of the Managing Committee appointing the writ
petitioner as ad hoc Principal of the College. It appears that on that day
E the said order was not backed up by any Resolutions of the Managing
Committee. However it was me.1tioned in this Letter of Appointment that
the writ petitioner was being appointed purely on ad hoc basis and his
appointment would last till a suitable candidate was made available by the
U.P. Secondary Education Services Selection Board (hereinafter referred
F to as 'the Board'), or till any other decision was taken by the management.
Pursuant to this Appointment Letter the writ petitioner started working as
Principal of the said College from 1st July 1988. On 29th October 1988 the
Managing Committee of the College passed a Resolution accepting the ad
hoc appointment of the writ petitioner on the post of Principal. The said
appointment was in turn approved by the District Inspector of Schools vide
G his letter dated 19th May 1989 for payment of salary under the provisions
of U.P. High Schools and Intermediate Colleges (Payment of Salaries to
Teachers and other Employees) Act, 1971. In the said Letter of Approval
it was mentioned that the approval was given for appointment of the writ
petitioner under Section 18 of U.P. Secondary Education Services Selec-
H lion Board Act, 1982 (hereinafter referred to as 'the Act') and the appoint-
M.D.PANDEYv. R. TIWARI [S.B.MAJMUDAR,J.] 449

ment was purely temporary and would last till a candidate selected by the A
·Board was available.

It is not in dispute between the contesting parties that the writ
petitioner is senior to the contesting respondent. The writ petitioner was
appointed as lecturer in Sanskrit on 12th August 1969 whereas the contest-
ing respondent was appointed as a lecturer in Geography on 14th August B
1969. It was also an admitted position between the contesting parties before
the High Court, both before the learned Single Judge as well as before the
Division Bench, that the management of the College had sent in July 1989
a requisition to the Board for selection of a regular Principal of the
College. As prescribed under the Rules framed under the Act the manage- c
ment forwarded names of writ petitioner and contesting respondent to the
Board which called both of them and other candidates for interview. The
Board after interviews notified on 3rd May 1991 that it had selected the
contesting respondent at serial no. 1 and one another person named Shiv
Sagar Shukla at serial no. 2, in order of merit for the post of Principal of D
the College. However the writ petitioner was not selected. The Board
communicated the said notification to the management vide its letter dated
6th May 1991. In pursuance of the said selection the Committee of
Management appointed the contesting respondent to the post of Principal
of the College vide its Resolution dated 13th May 1991 and Letter of E
Appointment of the same date was issued in favour of the contesting
respondent who took over charge from the writ petitioner on 14th May
1991. Now in the meantime it transpired that Section 33-A of the Act got
amended by the Uttar Pradesh Secondary Education Services Commission
and Selection Boards (Amendment) Act, 1991. As per the said Act Section
2 of the Amending Act was deemed to have come into force from 6th April
F
1991 and the remaining provisions were to come into force at once, Section
33-A of the Act amended by insertion of sub-sections (1-A), (1-B) and
(1-C) in Section 33-A of the Act. We shall refer to the said provisions of
the Amending Act at an appropriate stage in latter part of this jucgment.
Placing reliance on these amended provisions of Section 33-A the writ G
petitioner moved the High Court of Judicature at Allahabad, Lucknow
Bench by way of writ petition contending that his ad hoc appointment as
Principal with effect from 1st July 1989 had stood statutorily regularised
and, therefore, he was entitled to continue as a regularised Principal of the
College and consequently the contesting respondent could not continue as H
450 SUPREME COURT REP OR TS [1996] SUPP. 9 S.C.R.
A Principal of the said College. He, of course, by a separate writ petition
challenged the process of selection undertaken by the Board but we are
not concerned with that writ petition in the present proceedings. The third
writ petition was moved by the contesting respondent contending that he
was entitled to continue as a regularly selected Principal of the;College. As
B all these three writ petitions involved common questions they were heard
together and were disposed of by a common judgment of the learned Single
Judge of the High Court. The learned Single Judge took the view that in
the light of the Amending Act of 1991 which had brought on the Statute
Book Section 33-A(l)(l-A) of the Act appointment of writ petitioner was
required to be regularised as Principal of the College. Consequently the
C contesting respondent could not continue to function as Principal of the
College. In the light of the aforesaid finding of his the writ petition filed
by the writ petitioner was allowed. A writ of certiorari was issued quashing
the notification dated 3rd May 1991 appointing the contesting _respondent
as Principal of the College. A writ in the nature of mandamus was issued
D commanding the management and other authorities which were joined as
parties to the writ petitions not to give effect to the notification dated 3rd
May, 1991 and directing them to allow the writ petitioner to continue on
the post of Principal of the College. The writ petition filed by the contesting
respondent was dismissed. As stated earlier it is this common order of the
E learned Single Judge of the High Court which was brought in challenge by
the contesting respondent by filing Special Appeal No. 300 of 1992 before
the Division Bench of the High Court. The Division Bench by its impugned
order took the view that the writ petitioner was not entitled to get
regularisation of his ad hoc appointment as Principal and neither amended
provision of Section 33-A(l)(l-A) nor Section 33-A(l)(l- q was ap-
F plicable to the case of the writ petitioner. Consequently there was no
question of regularising his services as Principal and on the contrary as in
the selection process the contesting respondent was selected and the writ
petitioner was not selected, it was the contesting respondent who was
entitled to continue as Principal of the College and not the writ petitioner.
G Consequently, the appeal was allowed and the judgment of the learned
Single Judge was set aside. However it was clarified that as the writ
petitioner Munishwar Dutt Pandey had held the post of Principal in spells
under different orders of the Court if he had been paid the salary of the
post of Principal he shall not be compelled to refund the same. If on the
H other hand the salary was not paid he shall not be entitled to get it. The
M.D.PANDEYv. R. TIWARI [S.B.MAJMUDAR,J.] 451

aforesaid judgment of the Division Bench is brought on the anvil of scrutiny A
in the present proceedings by the writ petitioner.

Rival Colltentions

Learned counsel for the writ petitioner contended in support of the B
appeal that the writ petitioner, who was promoted as Principal on ad hoc
basis with effect from 1st July 1988, was entitled to be regularised in the
substantive vacancy of the Principal of the College by virtue of Section
33-A(l)(l-A) of the Act. He submitted that it is true that reliance was also
placed by the writ petitioner before the High Court on Section 33-A(l}(l-
C} of the Act but he does not claim regularisation under the said provision. c
According to him though earlier the appellant was prompted as ad hoc
Principal under the orders of the President of the College with effect from
1st July 1988 the said appointment was duly backed up and ratified by
subsequent Resolution of the Managing Committee of the College on 20th
October 1989 and that the High Court was in error in treating the D
appellant's ad hoc promotion to the post of the Principal of the College
only from 29th October 1988. In his submission the said conclusion reached
by the Division Bench of the High Court was contrary to the express terms
of the said Resolution which clearly stated that the Managing Committee
had unanimously accepted the writ petitioner's ad hoc appointment as
'Acharya' and this acceptance obviously referred to the initial ad hoc E
appointment w.e.f. 1st July 1988. It was next contended by learned counsel
for the writ petitioner that the Division Bench of the High Court was not
justified in taking the view that the writ petitioner's appointment by way of
promotion to the post of Principal was governed by paragraph 4 of the
Uttar Pradesh Secondary Education Services Commission (Removal of F
Difficulties) Order, 1981 (hereinafter referred to as 'the Order'} and not
by paragraph 2 thereof. According to the learned counsel paragraph 4 was
complementary to paragraph 2. Both operated in the same field and had
to be read conjointly. It was accordingly submitted that the case 0f the
appellant for regularisation was squarely covered by the amended G
provisions of Section 33-A(1}(1-A} of the Act and that once that con-
clusion was reached the writ petitioner stood regularised as Principal by
the deeming fiction of the said provision w.e.f. 6th April 1991. Consequent-
ly the subsequent interviews for the said post as held by the Selection
Board were an exercise in futility as they related to a post which was no
longer vacant from 6th April 1991 onwards. Hence the result of the H
452 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A selection proceedings by the Board became superfluous and of no legal
effect. Accordingly the selection of contesting respondent pursuant to such
an infructuous process of selection could not avail him to continue as
Principal of the College. In his submission the decision to which the
learned Single Judge reached was well borne out from the scheme of the
B Act and was wrongly set aside by the Division Bench by the impugned
judgment.

While supporting these contentions on behalf of the appellant-writ
petitioner, learned counsel for respondent no. 4, the Committee of
Management of the College, contended that the appointment of writ
C petitioner by way of promotion on ad hoc basis was not as per Section 18
of the Act as for applicability of the said Section two conditions were
required to be fulfilled:

(i) that the appointment should have been made after the vacan-
cy of the Principal was notified by the Management to the
D Selection Commission in accordance with the provisions of
the Act: and '

(ii) the period of one year should have elapsed from the date of
such notification of vacancy during which the Commission
E had failed to recommend the name of any suitable candidate
for being appointed as a teacher specified in the Schedule or
alternatively at least a period of two months should have
elapsed during which the post of such teacher should have
actually remained vacant and only thereafter the management
F might have appointed by promotion the concerned teacher
on ad hoc basis.

According to her by the time the Management passed the Resolution
on 29th October 1988 the post of Principal had not remained actually
vacant. On the contrary on the wording of the said Resolution it could be
G said that the said post of Principal was already occupied by the writ
petitioner with effect from 1st July 1988 of course as an ad hoc promotee
to the said post. It was, therefore, submitted by learned counsel for the
Management that the appointment by way of promotion of the writ
petitioner on ad hoc basis was made by the Management not as per Section
H 18 of the Act but as per paragraph 2 of the Order.
M.D.PANDEYv. R. TJWARl[S.B.MAIMUDAR.J.] 453

On the other hand learned counsel for the contesting respondent in A
the first instance contended that the Order as subsequently amended the
Second Order, did not cover vacancy which might arise after the coming
into force of the said Orders as these Orders were confined to only those
existing vacancies which had remained unfilled till the commencement of
these Orders. In his submission the said conclusion can flow from the
B
express wordings of both these Orders as construed in the light of the
respective preambles to these orders. He submitted that on a harmonious
construction of the relevant paragraphs of these Orders along with the
preambles which indicated the need for enactment of such Orders by the
subordinate legislative authority a conclusion can be reached that these
Orders were meant to cater to only those vacancies which had seen the c
light of the day upto the time these Orders for removal of difficulties got
enacted. That these Orders sought to remove the then existing difficulties
for the managements which were not able to fill up the then vacancies and
the selecting authorities, namely, the Commission or the Board on the
other hand had not been able to select the required candidates to fill up D
these vacancies. That as in the present case the vacancy of the Principal
had arisen seven years after promulgation of these Orders, the said vacancy
of the Principal was beyond the sweep of both the first and the second
Orders. He fairly stated that this contention was not canvassed either
before the learned Single Judge or before the Division Bench of the High
Court but in his submission as the contention went to the root of the matter E
and raised a pure question of law it deserved to be considered by us. He
alternatively contended that paragraph (2) of the Order was clearly repug-
nant to the scheme of the Act and as paragraph (2) was a piece of
subordinate legislation it must yield to the parent provision found in
Section 18 and, therefore, it must be held that the ad hoc promotion given p
to the writ petitioner was in substance according to the provisions of
Section 18 and not de hors it. It was next contended by him that the
Division Bench of the High Court rightly held that Resolution dated 29th
October 1988 was purely prospective and could not retrospectively
promote the writ petitioner with effect from 1st July 1988. That a conjoint
reading of all the recitals of the Resolution yielded this result. Once that G
is so it must be held, according to the learned counsel for the contesting
respondent, that the writ petitioner got no benefit of Section 33-A(l)(l-A}.
He further contended that so far as the applicability of Section 33-A(l)(l-
A) is concerned the Division Bench of the High Court had rightly held
that paragraph (2) of the Order did not cover the writ petitioner's case as H
454 SUPREME COURT REPORTS [1996) SUPP. 9 S.€.R.
I

A the writ petitioner was promoted as Head of the Institution if at all, as per
Paragraph (4) of the Order and for such appointments the scheme of
regularisation as contemplated by Section 33-A(l)(l-A) could not be of
any avail as only ad hoc promotions under paragraph (2) of the Order were
envisaged by the sweep of the said provision. Promotions of Heads of the
B Institutions contemplated by paragraph (4) of the Order were outside he
purview of the said provision and consequently the writ petitioner could
not get the benefit of the said provision. That once the writ petitioner is
out of the beneficial sweep of the regularisation provisions of Section
33-A(l)(l-A) it must be held, submitted learned counsel for the contesting
respondent, that as he had failed to be selected for the said post in open
C competition and the contesting respondent was duly selected on merits for
the said post, the writ petitioner was rightly non-suited by the impugned
judgment of the Division Bench of the High Court.

In view of these rival contentions the following points arise for our
determination :
D
(1) Whether the writ petitioner is entitled to get the benefit of
deemed regularisation of his ad hoc promotion as Principal of
the College under Section 33-A(l)(l-A) of the Act.

(2) Whether the writ petitioner's appointment by way of promotion
E was under Section 18 of the Act.

(3) Whether the writ petitioner's appointment by way of promotion
as ad hoc Principal of the College was effective from 1st July
1988 as contended by the writ petitioner or from 29th October
F 1988 as submitted by learned counsel for the contesting respon-
dent.

For the reasons which we will indicate presently our answers to the
aforesaid points for determination are as under :

G Point No. I - In the affirmative.
Point No. 2 - In the negative.

Point No. 3 - The writ petitioner's appointment by way of ad hoc promotion
as Principal became effective from 1st July 1988 and not only
H from 29th October 1988.
M.D. PANDEYv. R. TIWARI [S.B. MAJMUDAR, J.] 455

In view of our aforesaid answers to these points for determination A
the writ petitioner is entitled to succeed in the present proceedings. We
now proceed to record our reasons in support of the aforesaid answers to
these points for determination. However before we do so it would be
apposite to glance through the relevant statutory provisions governing the
controversy between the parties. B
Statutory provisio11s

The Act of 1982 was preceded by an Ordinance of 1981. The said
Ordinance was captioned 'Uttar Pradesh Secondary Education Services
Commission and Selection Boards Ordinance, 1981 (U.P. Ordinance No.
8 of 1981)'. It was promulgated with a view to establish a Secondary
c
Education Services Commission and six or more Secondary Education
Selection Boards for selection of teachers in institutions recognised under
the Intermediate Education Act, 1921. It is not in dispute that the College
in question is governed by the provisions of the Intermediate Education
Act, 1921. This Ordinance was followed by the Act of 1982 being U .P., Act D
No. 5 of 1982. The Preamble of the said Act provides that it is an Act to
establish Secondary Education Services Commission and Selection Boards
for selection of teachers in institutions recognised under Intermediate
Education Act, 1921. We will now refer to the relevant provisions of the
said Act as were applicable at the relevant time iii' 1988 when the vacancy E
of the Principal arose in the College and for occupying the same the rival
claims of the wr:t petitioner and the contesting respondent have to be
examined. Section 8 of the Act provides for establishment of Commission
called Uttar Pradesh Secondary Education Services Commission. The
Commission was entrusted under Section 9 with the powers and duties to
prepare guidelines on matters relating to the method of recruitment and F
promotion of such categories of teachers as are specified in the Schedule
and to perform diverse other functions as laid down in the said Section.
Section 10 of the Act is material for our purpose. It reads as under :

"JO. Procedure of seiectio11 of teachers specified in the Schedule. • G
(1) For the purposes of making appointment of a teacher specified
in the Schedule, the1management shall notify the vacancy to the
Commission in such manner and through such officer or authority
as may be prescribed.

(2) The procedure of selection of candidates for appointment to H
456 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.

A the post of such teachers shall be such as may be prescribed :

Provided that the Commission shall, with a view to inviting talented
persons, give wide publicity in the State to the vacancies notified
under sub-section (1)."

B The said Section will have to be read with Section 2(k) which defines
'Teacher' to mean 'a person employed for imparting instruction in an
institution and includes a Principal or a Headmaster'. A conjoint reading
of these provisions will, therefore, indicate that once the vacancy of a
Principal arises in a College governed by the said Act the management has
C to notify the vacancy to the Selection Commission in the manner provided
by the rules which prescribe the procedure for that purpose. The next
relevant Section is found in Chapter IV of the Act dealing with 'Appoint-
ment of Selected Teachers'. It reads as under :

"16. Appointments to be made only on recommendations of the
D Commission or the Board.- (1) Notwithstanding anything to the
contrary contained in the Intermediate Education Act, 1921 or the
Regulations made thereunder but subject to the provisions of
Section 18, 21-B, 21-C, 21-D, 33 and 33-A -

(a) every appointment of a teacher specified in the Schedule,
E shall on~or after July 10, 1981, be made by the management
only on the recommendation of the Commission;

(b) every appointment of a teacher (other than a teacher
specified in the Schedule), shall, on or after July 10, 1981, be
made by the management only on the recommendation of
F
the Board:

Provided that in respect of retrenched employees, the
provisions of Section 18-EE of the Intermediate Education Act,
1921, shall apply with the modification that in sub-section (2) of
G the aforesaid section, for the words 'six months' the words 'two
years' shall be deemed to have been substituted.

(2) Every appointment of a teacher, in contravention of the
provisions of sub-section (1), shall be void."

H Then follows Section 18 which represented the main bone of contention
M.D.PANDEYv. R. TIWARI (S.B. MAJMUDAR,J.] 457

between the contesting parties. It is, therefore, profitable to extract it as A
under:

"18. Ad hoc Teachers.-(1) Where the management has notified a
vacancy to the Commission in accordance with the provisions of
this Act and-
B
(a) the Commission has failed to recommend the name of any
suitable candidate for being appointed as a teacher specified
in the Schedule within one year from the date of such notifica-
tion; or

(b) the post of such teacher has actually remained vacant for
c
more than two months, then, the management may appoint,
by direct recruitment or promotion, a teacher on purely ad
hoc basis from amongst the persons possessing qualifications
prescribed under the Intermediate Education Act, 1921 or
the regulations made thereunder. D

(2) The provisions of sub-section (1) shall also apply to the ap-
pointment of a teacher (other than a teacher specified in the
Schedule) on ad hoc basis with the substitution of the expression
'Board' for the expression 11 Commission 11 •
E
(3) Every appointment of an ad hoc teacher under sub-section (1)
or sub-section (2) shall cease to have effect from the earliest of
the following dates, namely-

(a) when the candidate recommended by the Commission or the
F
Board, as the case may be, joins the post:

(b) when the period of one month referred to in sub-section (4)
of Section 11 expires:

(c) thirtieth day of June following the date of such ad hoc G
appointment. n

The next relevant Section is Section 33 which may profitably be noticed as
under:

"33. Power to remove difficulties.-(1) The State Government may, H
458 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.

A for the purposes of removing any difficulty, by a notified order,
direct that the provisions of this Act shall, during such period as
may be specified in the order, have effect subject to such adapta-
tions, whether by way of modification, addition or omission, as it '
may deem to be necessary or expedient :

B Provided that no such order shall be made after two years from
the date of commencement of this Act.

(2) Every order made under sub-section (1) shall be laid before
both the Houses of State Legislature.
c (3) No order under sub-section (1) shall be called in question in
any court on the ground that no difficulty as is referred to in
sub-section (1) existed or required to be removed."

Then follows Section 33-A which deals with 'Regularisation of certain
D appointment. The said Section with its relevant amendments is germane to
the present controversy. The relevant provisions thereof read as under :

"33-A. Regularisation of certain appointmems.-(1) Every teacher
directly appointed, before the commencement of the Uttar
Pradesh Secondary Education Services Commission and Selection
E Boards (Amendment) Ordinance, 1985, on ad hoc basis against a
substantive vacancy in accordance with paragraph 2 of Uttar
Pradesh Secondary Education Services Commission (Removal of
Difficulties) Order, 1981, as amended from time to time, who
possesses the qualifications prescribed under, or is exempted from
F such qualifications in accordance with, the provisions of the Inter-
mediate Education Act, 1921, shall, with effect from the date of
such commencement, be deemed to have been appointed in a
substantive capacity provided such teacher has been continuously
serving the institution from the date of such appointment up to the
date of such commencement.
G
(1-A) Every teacher appointed by promotion, on ad hoc basis
against a substantive vacancy in accordance with paragraph 2 of
the Uttar Pradesh Secondary Education Services Commission
(Removal of Difficulties) Order, 1981, as amended from time to
H time, who possesses the qualifications prescribed under, or is
M.D.PANDEYv. R. TIWARl[S.B. MAJMUDAR,J.] 459

exempted from such qualifications in accordance with the A
provisions of, the Intermediate Education Act, 1921 shall, with
effect from the date of commencement of the Uttar P1adesh
Secondary Education Services Commission and Selection Boards
{Amendment) Act, 1991, be deemed to have been appointed in a
substantive capacity provided such teacher has been continuously B
serving the institution from the date of such ad hoc appointment
to the date of such commencement.

{1-B) . . .

(1-C) Every teacher appointed by promotion or by direct recruit- C
men! before July 31, 1988 on ad hoc basis against a substantive
vacancy in accordance with Section 18, who possesses the qualifica-
tions prescribed under, or is exempted from such qualifications in
accordance with the provisions of the Intermediate Education Act,
1921 shall, with effect from the date of commencement of the Uttar
Pradesh Secondary Education Services Commission and Selection D
Boards (Amendment) Act, 1991 be deemed to have been ap-
pointed in a substantive capacity provided such teacher has been
continuously serving the institution from the date of such ad hoc
appointment to the date of such commencement.
E
(2) Every teacher deemed to have been appointed in a substantive
capacity under sub-section (1) or {1-A) or (1-B) or (1-C) shall be
deemed· to be on probation from the date of commencement
referred to in sub-section {1) or {1-A) or (1-B) or (1-C) as the
case may be.
F
{3) Nothing in this section shall be construed to entitle any teacher
to substantive appointment-

(a) if on the date of commencement referred to in sub-section
(1) or (1-A) or (1-B) or {1-C), as the case may be such post G
had already been filled or selection for such post had already
been made in accordance with this Act, or

{b) if such teacher was related to any member of the Committe"
of management or the Principal, or Head Master of the
institution concerned. H
460 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A Explanation-For the purposes of this sub-section a person shall be
deemed to be related to another if-

(i) they are members of a Hindu undivided family; or

(ii) they are husband and wife; or
B
(iii) the one is related to the other in the manner indicated in the
Second Schedule to the Intermediate Education Act, 1921."

We may now refer to the relevant rules framed by the Governor in exercise
of powers conferred under Section 35 of the Act. The relevant rule for our
C purpose is Rule 4 which deals with 'Determination and intimation of
vacancies'. It lays down that 'the Management shall determine and intimate
to the Commission, in the proforma given in Appendix 'A' and in the
manner hereinafter specified, the number of vacancies existing or likely to
fall vacant during the year of recruitment and, in the case of any post, other
D than the post of the head of an institution, also the number of vacancies to
be reserved for the candidates belonging to the scheduled castes, scheduled
tribes and other category of persons in accordance with the rules or orders
issued by the Government in this behalf in regard to the educational
institutions'. Clause (ii) of Rule 4(1) provides that 'in regard to the post of
E head of an institution, the Management shall also forward, mutatis muta11-
dis in the manner hereinafter specified, the names of two senior-most
teachers, copies of their service records (including character rolls) and
such other record or particulars as the Commission may require from time
to time'. Sub-rule (5) of Rule 4 lays down that, 'where a vacancy occurs at
any time during the session or after the requisition has already been sent
F in accordance wit.h sub-rules(2), (3), (4) or (5) of these Rules, the Manage-
ment shall notify the vacancy to the Inspector within 15 days of its occur-
rence and the Inspector and the Deputy Director shall deal with it in the
manner mentioned in sub-rules (3) and (4) within 10 days of its receipt by
them'. The next relevant statutory provision is furnished by the Order
G issued by the Governor in exercise of powers vested in him under Section
33 of the Act which deals with 'Removal of difficulties' as seen earlier. The
said Order which may be styled as the first Order is dated 31st July 1981.
The Preamble of the said Order reads as under :

"Whereas, the Uttar Pradesh Secondary Education Services Com-
H mission and Selection Boards Ordinance, 1981 (U.P. Ordinance
M.D. PANDEYv. R. TIWARI (S.B. MAIMUDAR, J.] 461

No. 8 of 1981) was promulgated on July 10, 1981 with a view to A
establish a Secondary Education Services Commission and six or
more Secondary Education Selection Boards for selection of
teachers in institutions recognised under the Intermediate Educa-
tion Act, 1921;

And, whereas, the establishment of the Commission and the B
Selection Boards is likely to take some time and even after the
establishment of the said Commission and Boards, it is not possible
to make selection of the teachers for the first few months;

And, whereas, a number of vacancies in the posts of teachers c
in various institutions recognised under the Intermediate Educa-
tion Act, 1921, exist and the failure or delay in filling up of such
vacancies is likely to create difficulties;

Now, therefore, in exercise of the powers under section 33 of
the Uttar Pradesh Secondary Education Services Commission and D
Selection Boards Ordinance, 1981 (U.P. Ordinance No. 8of1981).
The Governor is pleased to direct that the provisions of the said
Ordinance shall have effect subject to provisions of the following
Order:
E

Paragraphs 2 and 4 of the said Order are required to be noted at this stage.
They read as under :

"2. Vacancies in which ad hoc appointment can be made. The F
management of an institution may appoint by promotion or by
direct recruitment a teacher on purely ad hoc basis in accordance
with the provisions of this Order in the following cases, namely :-

(a) in the case of a substantive vacancy existing on the date of G
commencement of this Order caused by death, retirement,
resignation or otherwise;

(b) in the case of a leave vacancy, where the whole or unexpired
portion of the leave is for a period exceeding two months on
the date of such commencement; H
462 SUPREME COURT REPORTS (1996) SUPP. 9 SLR.

A (c) where a vacancy of the nature specified in clause (a) or clause
(b) comes into existence within a period of two months
subsequent to the date of such commencement.

3.... . ..

B 4. Ad !toe appointment by promotion.-(1) Every vacancy in the post
of the Head of an institution may be filled by promotion :-

(a) in the case of an Intermediate College, by the seniormost
teacher of the institution in the lecturer's grade;

C (b) in the case of a High School raised to the level of an Inter-
mediate College, b} the Headmaster of such High School;

(c) in the case of a Junior High School raised to the level of a
High School, by the Headmaster of such Junior High Sch'ool.

D (2) Every vacancy in the post of a teacher in Lecturer's grade may
be filled by promotion by the seniormost teacher of the institution
in the trained graduate (L.T.) grade.

(3) Every vacancy in the post of a teacher in the trained graduate
(L.T.) grade shall be filled by promotion by the seniormost teacher
E of the institution in the trained undergraduate (C.T.) grade.

(4) Every vacancy· in the post of a teacher in the trained under-
graduate (C.T.) grade shall be mled by promotion by the senior-
most teacher of the institution in the J.T.C. grade or B.T.C. grade.
F Explanation- For the purposes of clauses (1) to (4) of this
paragraph the expression "seniormost teacher" means the teacher
having longest continuous service in the institution in the Lecturer's
grade or the trained graduate (L.T.) grade, or trained under-
graduate (C.T.) grade or J.T.C. or B.T.C. grade, as the case may
G be.'

This Order was followed by the Second Order dated 11th September 1981.
It was also obviously enacted in exercise of powers of the Governor under
Section 33 of the Act. The Preamble of the Second Order reads as under:

H "Whereas, the Uttar Pradesh Secondary Education Services
M.D.PANDEYv. R. TIWARI [S.B.MAJMVDAR,J.] 463

Commission and Selection Boards Ordinance, 1981 (U.P. Or- A
dinance No. 8 of 1981), was promulgated on July 10, 1981 with a
view to establish a Secondary Education Services Commission and
six or more Secondary Education Selection Boards for selection
of teachers in the institutions recognised under the Intermediate
Education Act, 1921 (U.P. Act No. 11of1921);
B
And whereas, the establishment of the Commission and the
Selection Boards is likely to take some time and even after the
establishment of the said Commission and Boards it may not be
possible to make selection of the teachers for the first few months;

And whereas, a number of vacancies in the posts of teachers
c
in various institutions recognised under the said Act exist and the
failure or delay in filling up of such vacancies is likely to create
difficulties;

And whereas, the filling up of certain short-term temporary D
vacancies, caused by grant of leave to or on account of suspension
of a teacher or otherwise, in accordance with the provisions of the
Uttar Pradesh Secondary Education Services Commission
(Removal of Difficulties) Order, 1981 is likely to delay the appoint-
ment of substitutes in such vacancies;
E
Now, therefore, in exercise of the powers under sub-section (1)
of section 33 of the Uttar Pradesh Secondary Education Services
Commission and Selection Boards Ordinance, 1981 (U.P. Or-
dinance No. 8 of 1981), read with section 21 of the U.P. General
Clauses Act, 1904 (U.P. Act I 1904), the Governor is pleased to F
direct that the provisions of the said Ordinance shall have effect
subject to the provisions of the following order :

Paragraph 2 of the said Order deals with 'Procedure for filling up short G
term vacancies' with which we are not concerned. The relevant clause of
the said Second Order is Paragraph 6 which seeks to substitute paragraph
2 of the First Order by a new substituted paragraph 2 which reads as under:

"5. Substitution of Paragraph 2 of the First Removal of Difficulties
Order, 1981.-ln the First Removal of Difficulties Order, 1981, for H
464 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A Paragraph 2, the following paragraph shall be substituted, namely-

'2. The management of an institution may appoint by promotion
or by direct recruitment, a teacher on purely ad hoc basis in
accordance with the provisions of this Order in the case of a
substantive vacancy caused by death, retirement, resignation
B or otherwise."

In the background of the aforesaid statutory scheme it would be necessary
to examine the scope and ambit of the U.P. Secondary Education Services
Commission and Selection Boards (Amendment) Act. 1991 whereby Sec-
C tion 33-A of the Act underwent substantial amendments and brought on
the Statute Book provisions of Section 33-A(l)(l-A) and (1-C) which are
extracted earlier. The Prefatory Note containing Statement of Objects and
Reasons for the said Amendment Act of 1991 being U.P. Act 28 of 1991
deserves to be noted in this connection. It reads as under :

D Prefakiry Note-Statement of Objects and Reasons.- Section 33-A
of the Uttar Pradesh Secondary Education Services Commission
and Selection Boards Act, 1982 provides for the regularisation of
the Services of such teachers as were appointed directly before
June 12, 1985 on ad hoc basis against suhstantitve vacancies in
E accordance with paragraph 2 of the Uttar Pradesh Secondary
Education Services Commission (Removal of Difficulties) Order,
1981 and possessing the prescribed qualifications of exempted
therefrom. It has been decided to amend the said Act to regularise
the services of those qualified teachers also who were-

F .(a) appointed by promotion on ad hoc basis against substantive
vacancies in accordance with the provisions of paragraph 2
of the Said Order of 1981 and are continuing as such; and

(b) appointed by promotion or by direct recruitment before July
13, 1989 on ad hoc basis against substantive vacancies in
G accordance with Section 18 of the said Act and are con-
tinuously serving as such.

2. Since Certificate of Teaching grade has been declared to be
a dying cadre from May 13, 1989 in non-Government Secondary
H Schools and the new appointments in such cadre have since been
M.D.PANDEYv. R. TIWARI [S.B. MAJMUDAR, J.] 465

stopped, it has been decided that the services of those teachers A
who were directly appointed on ad hoc basis against substantive
vacancies in such grade after June 12, 1985 and before May 13,
1989, in accordance with the provisions cf paragraph 2 of the said
Order of 1981 and are continuing as such should also be
regularised.
B
3. Since the State Legislature was not in session and immediate
legislative action to implement the said decision was necessary, the
Uttar Pradesh Secondary Education Services Commission and
Selection Boards (Amendment) Ordinance 1991 (U.P. Ordinance
No. 28 of 1991) was promulgated by the Governor on April 8, C
1991."

It is in the light of the aforesaid statutory scheme governing the controversy
in question that we have to examine the main contentions of the contesting
parties giving rise to the aforesaid points for determination. We accordingly
proceed to deal with these points seriatim. D

Point No. 1

So far as this point is concerned a mere look at Section 33-A(l)(l-A)
shows that before it can be pressed in service the following conditions must E
be satisfied by the concerned teacher who claims to be regularised there-
under:

1. A teacher including the Principal as per Section 2(k) of the Act
must have been appointed by promotion on ad hoc basis against
a substantive post. F

2. Such appointment must have been made in accordance with
paragraph 2 of the First Order of 1981 as amended from time to
time.

3. He must possess the qualifications prescribed under the Inter-
G
mediate Education Act, 1921 or might have been exempted from
such qualifications.

4. Regularisation will be with effect from the date of the commen-
cement of the Amending Act of 1991. H
466 SUPREME COURT REPORTS (1996) SUPP. 9 S.C.R.

A 5. Subject to the rider that such teacher should be continuously
serving in the institution from the date of his initial ad hoc
appointment till the date of the commencement of the Amending
Act of 1991.

B Before we proceed to examine the case of the writ petitioner for regularisa-
tion under the aforesaid provision and try to find out whether all the
aforesaid conditions are satisfied by the writ petitioner or not one prelimi-
nary objection to such consideration as put forward by the learned counsel
for the contesting respondent has to be noted for being dealt with. His
objection is that the Order of 1981 itself as amended from time to time will
C not apply in the case of the writ petitioner. He fairly stated that such a
contention was not canvassed either before the learned Single Judge or
before the Division Bench of the High Court and the controversy before
the High Court was limited to the question of applicability of paragraph 4
or paragraph 2 of the said Order so as to attract or rule out the provisions
D of Section 33-A(l)(i-A). However as the contention went to the root of
the matter we have permitted learned counsel for the contesting respon-
dent to agitate this point for our consideration.

Learned counsel for the contesting respondent submitted that the
First Removal of Difficulties Order or for that matter the second one Will
E have to be appreciated in the light of the Preambles concerned which
resulted into these Orders. It is of course true that these Preambles pointed
out that number of vacancies were existing by the time the Act came into
force or for that matter even at the time when the Ordinance preceding
the Act was promulgated and it was likely that some time would be taken
p before the machinery for filling up of these posts by selection would
become fully operative and that there were number of vacancies in the
posts of teachers in various institutions recognised under the intermediate
Education Act, 1921 and the delay in filling up these vacancies through
the selection machinery envisaged by the Ordinance and the Act would
cause difficulties. It is also true that paragraph 2 of the First Order of 31st
G July 1981 clearly laid down that the management of the institution may
appoint by promotion or by direct recruitment a teacher on purely ad hoc
basis in connection with a substantive vacancy existing on the date of the
commencement of the Order caused by death, retirement, resignation or
otherwise as provided by clause (a) of paragraph 2 of the First Order of
H 1981 while clauses (b) and (c) thereof dealt with leave vacancies which
M.D. PANDEYv. R. TIWARI [S.B. MAJMUDAR, J .] 467

might have existed and might have continued upto a period exceeding two A
months on the date of such commencement or such leave vacancies or
substantive vacancies might have come into existence within a period of
two months subsequent to the date of commencement. These provisions
had a direct nexus with the date of commencement of the Order, namely,
31st July 1991. Consequently it could have been said with some emphasis B
that substantive vacancy of a Principal with which we are concerned should
have either existed on the date of commencement of First Order, i.e., 31st
July 1981 or at latest within two months thereafter and such a vacancy
could be filled up by the management by promotion as per paragraph 2.
However said paragraph 2 concerning substantive vacancy underwent a sea
change by the subsequent Ordei, that is, the Second Order dated 11th C
September 1981. As we have seen earlier the said substituted paragraph 2
has no nexus to any existing vacancy on the date of commencement of the
Order or to a vacancy arising only within a period of two months thereafter.
On the contrary it operates in future and takes in its sweep all substantive
vacancies caused in future by death, retirement, resignation or otherwise D
of a teacher which could be filled up by the management by promotion on
purely ad /we basis. It is of course true that the amended paragraph 2 of
the First Order as substituted by the Second Removal of Difficulties Order
talks of the vacancies caused by death, retirement etc. But that does not
necessarily mean that they should have been caused by the time the Second
Order came into force. Such an intention of the Order making authority is E
contra-indicated by the express terminology of the substituted paragraph
2 as distinguished from the earlier existing paragraph 2(a) in the Order of
21st July 1981 which had clearly linked such substantive vacancies with the
date of commencement of the First Order. Consequently, on the express
language of substituted paragraph 2 of the First Removal of Difficulties F
Order by the Second Order it is not possible to agree with the contention
of learned counsel for contesting respondent that even the substituted
paragraph 2 of the First Order by the Second Order would still limit the
substantive vacancies only to the date of the commencement of even the
Second Order. Such an interpretation would fly in the face of the express G
language employed by the Order making authority in the substituted
paragraph 2 of the First Order. 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. In H
468 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A this connection we may refer to a decision of a two member Bench of this
Court in the case of Rashtriya Mill Mazdoor Sangh v. National Textile
Corporation (South Maharashtra) Ltd. & Ors., (1995) 6 SCALE 609, S.C.
Agrawal, J. speaking for the Court relying on earlier decisions of this Court
has observed in paragraph 10 of the Report as under :

B "...... It is one of the cardinal principles of the statutory construc-
tion that where the language of an Act is clear, the Preamble
cannot be invoked to curtail or restrict the scope of the enactment
and only where the object or meaning of an enactment is not clear
the Preamble may be resorted to explain it. (See : Bwrakur Coal
C Co. Ltd. v. Union of India, (1962] 1SCR44 at page and Ms Motipur
Zamindary Co. (P) Ltd. v. The State of Bihar, (1982] Supp. 1 SCR
498 at page 504)."

Learned counsel for the contesting respondent, however, invited our atten-
tion to the following judgments of this Court :
D
1. State of Kamataka & Anr. Etc. v. Shri Ranganatha Reddy & Anr.
Etc., (1978] 1 SCR 641.

2. Secretary, Regional Transpo1t Authority, Bangalore and Another v.
D.P. Shanna & Ors., (1989] Supp. 1 SCC 407.
E
3. His Holiness Kesavananda Bharati Sripadagalva1u Etc. v. State of
Kera/a & Anr. Etc., (1973] 4 SCC 225.

4. Minerva Mills Ltd. & Ors. v. Union of India & Ors., (1980] 2 SCC
591.
F
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

G
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 malcing 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 Shanna & Ors. v. State of U.P. &
H Ors., JT (1996) 6 SC 579 the Removal of Difficulties Order has a per-
M.D.PANDEYi. R. TIWARI [S.B. MAIMUDAR,J.] 469

manent operational effect and would necessarily, therefore, cover all future A
vacancies after 1981.

In view of the aforesaid settled legal position, therefore, 1t must be
held th~t 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
B
contemplated thereunder and the said Order would continue to operate
till it was rescinded. In this connection it is profitable to have a look at
Section 92 of the Act under which these Orders have been erected. As seen
earlier the said Section provides that the State Government may, for the
purpose of removing any difficulty, by a notified order, direct that the c
provisions of this Act shall, during such period as may be specified in the
order, have effect subject to such adaptations, whether by way of modifica-
tion, addition or omission, as it may deem to be necessary or expedient.
Consequently the State Government would have provided the period
during which such an Order could operate. But such a provision is not D
found in these Orders limiting their period of operation. It is of course true
that the proviso to Section 33 had laid down that such Order could not be
made beyond two years of the coming into force of the Act. But as both
the aforesaid Orders were enacted within that time they had to operate on
their own once their duration of operation was not laid down by the Order E
making authority in its wisdom. In fact this question is concluded by the
decision of this Court in Prabhat Kumar Shanna (supra). In the said
decision a Bench of two learned Judge of this Court speaking through K.
Ramaswamy, J. in its order has laid down that the Removal of Difficulties
Order is a permanent one and not transient as contended for. For arriving
at that conclusion the Bench had referred to, with approval, the decision
F
of a Full Bench of Allahabad High Court in the case of Radha Raizada &
Ors. v. Committee of Management, Vidyawati Darbari Girls College & Ors.,
(1994) 3 UPLBEC 1551. Once these Removal of Difficulties Orders of
1991 are held to be of permanent nature and would, therefore, operate to
cover future vacancies also, it is not possible to agree with the contention G
of learned counsel for the contesting respondent that these Orders could
not cover in their sweep the vacancy of the Principal of the College in
question which arose from 1st July 1988 on superannuation of the then
Principal Shri Misra. Consequently the preliminary objection raised by
learned counsel for the contesting respondent stands rejected. H
470 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A Now is the time for us to revert to the consideration of the question
whether Section 33-A(l)(l-A) would apply in the case of writ petitioner.
So far as the first condition for its applicability is concerned it cannot be
disputed that the writ petitioner was appointed by promotion on ad hoc
basis against substantive vacancy of the Principal as the then Principal Shri
B Misra retired on 30th June 1980. We will revert to the controversy whether
the writ petitioner's appointment by promotion on ad hoc basis was with
effect from 1st July 1988 or from 29th October 1988 a little later when we
will deal with Point No. 2. For the time being it is sufficient to note that
much before the coming into operation of Section 33-A(l)(l-A) the writ
p~faioner was promoted on ad hoc basis as Principal of the College against
C the substantive vacancy caused by the superannuation of the then Principal.
When we turn to the second conditi0n for applicability of Section 33-
A(l)(l-A) it has to be seen whether such promotion of the writ petitioner
was in accordance with paragraph 2 of the 1981 Order as amended from
time to time. As we have observed earlier, paragraph 2 of the First Order
D of 1981 as it was couched in the then existing form might have curtailed
the filling up of such vacancy with reference to only the then existing
vacancy on the commencement of the Order or as existing within two
months thereafter but that restriction has been removed by the Order
making authority in its wisdom by wholly substituting paragraph 2 by the
Second (Amendment) Order as we have seen above. A mere look at that
E provision shows that it has no nexus with the then existing vacancies and
would cover even future substantive vacancies. However the Division
Bench of the High Court has held against the writ petitioner on the ground
that writ petitioner's ad hoc promotion on this substantive vacancy was as
per paragraph 4 and not paragraph 2 of the First Order as amended by
F the Second Order. When we keep paragraph 2 as substituted by Second
Order in juxtaposition with paragraph 4 of the First Order which had
remained unamended and untouched by the Second (Amendment) Order
we find that both operate in the same field. Paragraph 2 as amended stated
that the management may appoint by way of promotion a teacher on purely
ad hoc basis in accordance with the provisions of the Order in case of
G substantive vacancy caused, amongst others, by retirement of the outgoing
teacher. As 'teacher' includes Principal as provided by Section 2(k) of the
Act the thrust of the amended paragraph 2 would read that a substantive
vacancy of Principal also can be filled up by the management by promotion
of a teacher on purely ad hoc basis. But while filling up such vacancy by
H promotion on ad hoc basis the procedure laid down by the Order has to
M.D. PANDEY v. R. TIWARI [S.B. MAJ MUDAR. J.] 471

be kept in view. Paragraph 4 of the Order lays down the procedure and A
gives the guidelines as to how the vacancy of the head of the institution,
i.e., the Principal as earmarked by paragraph 2 has to be filled in. Para-
graph 2 specifies the vacancy and paragraph 4 deals with the procedure
for filling up such a vacancy. When we turn to paragraph 4 we find that
ad hoc appointment by promotion in the post of Head of the institution
B
has to be made only by appointing the senior-most teacher of the institu-
tion. It is not as if paragraph 4 operates independently of paragraph 2 as
paragraph 2 in its sweep covers substantive vacancies of all teachers who
might have died or retired or resigned or might have gone out otherwise.
But while coming to the Head of the institution special procedure has been
provided in paragraph 4 and to that extent paragraph 4 is a proviso to c
paragraph 2 or is complementary to it and both operate in the same field
when the question of filling up of a substantive vacancy of a Principal who
is Head of the institution, arises for the management which has to fill up
such a vacancy on ad hoc basis by appointing the senior-most teacher of
the institution in the lecturers' grade. With respect the Division Bench of D
the High Court erred in taking the view that paragraph 4 would operate
independently of paragraph 2 or has no nexus with paragraph 2. In fact
paragraphs 2 and 4 will have to be read together as the terminology
employed in paragraph 2 enjoining the institution to appoint by promotion
a teacher on purely ad hoc basis in accordance with the provisions of this
Order which would necessarily bring in the sweep of paragraph 2 the E
procedure laid down by paragraph 4 and the guidelines contained therein
in connection with the filling up of the vacancies of teachers who were
heading the institutions and who might have died, retired or resigned or
might have gone, otherwise, out of office as laid down by paragraph 2. It
must, therefore, be held that the appointment of writ petitioner by promo- F
tion 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(l)(l-A) was not fulfilled in the present case as erroneously
held in the judgment under appeal. The second condition for applicability G
of Section 33-A(l)(l-A), therefore, is also complied with in the present
case by 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 1981 for filling up the said post. So far as the
fourth and fifth conditions are concerned they are also' fulfilled by the writ H
472 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A petitioner as he claims regularisation from the date of commencement of
the Amending Act of 1991, that is, with effect from 6th April 1991 and till
that date he had worked as promotee Principal on ad hoc basis continuous-
ly 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(l)(l-
B 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(l)(l-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 recom-
C mendation of Selection Committee on 3rd May 1991 would become redun-
dant and otiose as such a recommendation would be to a post which no
longer existed for being filled in by direct selection. In fact the vacancy of
the post of Principal of this College ceased to exist on and from 6th April
1991. Consequently all the subsequent exercises of course in ignorance of
D the aforesaid statutory provisions and the deeming effect thereof would
pale into insignificance and would be otiose with the result that whoever
emerged successful in the selection process would have no post to fall back
upon or to occupy. The first point for determination is accordingly
answered in the affirmative.

E Point No. 2

So far at this point is concerned learned counsel for the contesting
respondent vehemently submitted that Section 18 of the. Act which is a
paramount provision clearly lays down the procedure to be followed by the
management for filling up on ad hoc basis the vacancies which might have
been notified to the Commission in accordance with the provisions of the
Act and once the said provision operates paragraph 2 or paragraph 4 of
the Order which is a subordinate legislation must give way to parent
provision. So far as this submission is concerned let us first see whether
Section 18 was attracted in the facts of the present case. For applicability
G of Section 18 two conditions are required to be fulfilled - (i) the manage-
ment 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
H of two senior-most teachers whose claims have to be considered by the
M.D.PANDEYv. R. TIWARI [S.B.MAJMUDAR,J.j 473

Commission; and (ii) after such notification the Commission should have A
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 manage-
ment may appoint by promotion a teacher on purely ad hoc basis as per
Section 18. On the facts of the present case the first condition got satisfied
B
as it is an admitted position between the parties as noted by tb; Division
Bench of the High Court in the judgment under appeal that respondent
no. 4 (present writ petitioner) was senior to the appellant before the
Division Bench (present contesting respondent) and it was further ad-
mitted that the management in July 1988 sent a requisition to the U.P.
Secondary Education Services Selection Board for selection of a regular c
Principal of the College and it had also sent the names of both these
contesting teachers to the Board which called both of them and others for
interview. However before that was done on the very first day, that is, 1st
of July 1983 the writ petitioner got appointed by promotion. If that appoint-
ment was purely a stop-gap arrangement of holding charge, as submitted D
by learned counsel for the contesting respondent, and became a promo-
tional appointment on ad hoc basis only on 29th October 1988 by Resolu-
. tion of the Managing Committee then it can be said that the first condition
for applicability of Section 18 was satisfied. So far as the second condition
is concerned the learned counsel for contesting respondent submitted that
even that is satisfied because the Managing Committee appointed the writ E
petitioner by way of ad hoc promotion as Principal of the College only on
29th October 1988 and till that time post of the Principal had actually
remained vacant as the President of the College had no authority to
appoint by ad hoc promotion any teacher to the post of Principal. Conse-
quently for applicability of both these conditions the scope and ambit of F
the Resolution of the Managing Committee dated 29th October 1988 would
assume great significance. If the said Resolution operated prospectively as
contended by learned counsel for contesting respondent then both the
conditions of Section 18 would get attracted. If on the other hand the said
ResoTution ratified the ad hoc promotion of the writ petitioner with effect
from 1st July 1988 then none of the conditions of Section 18 would come G
in the way of the writ petitioner or would cut across the applicability of
Section 33-A(l)(l-A) and the appointment would remain within the
forecorners of paragraph 2 of the Order as amended by the Second Order.

So far as this question is concerned, therefore, we have to look at H
474 SUPREME COURT REPORTS [1996] SUPP. 9S.C.R.
A the wordings of the First Promotion Order and the wordings of the
Managing Committee's Resolution of 29th October 1988. So far as the first
appointment of the writ petitioner dated 30th June 1988 is concerned it
was obviously made by the President of the College appointing the writ
petitioner on the post of Principal by promotion on ad hoc basis. But the
said appointment was made subject to any contrary decision by the
8 Managems~t or emerging on the scene any selected candidate from the
Secondary Education Services Commission and in either of these two
eventualities the appointment of the writ petitioner was automatically to
come to an end. Now it must be kept in view that President of the College
was not a mere manager and he could act on behalf of the Managing
C Committee subject to the ratification of his action by the Managing Com-
mittee and that precisely happened by Resolution No. 2 of the Managing
Committee dated 29th October 1988. We may refer to the translated
version of the said Resolution as made available to us by the contesting
respondent himself in his counter affidavit at Annexure '!'. It reads as
D under:

True copy of resolution No. 2 :- Passed in the meeting dated
29.10.1988, of the Managing Committee of Sri Brijendra Mani Inter
College Kohadaur Pratapgarh.

E Resolution No. 2 :- Appointment of Officiating Principal on ad-hoc
basis on the post of principal which was fallen vacant on account
of retirement of Sri Jagdeo Prasad Misra the ex-Principal - Before
the Managing Committee the application of Sri Munishwar Dutt
Pandey Sr. Most Lecturer Sanskrit attested copies of eligibility
Certificate and the report of Manager were produced. The Prin-
F
cipal of the College Sri Jag Dea Prasad Misra has retired after
attaining_ the age of 60 yrs. on 30.8.1988 and post is vacant. U/s. 16
CH.A. Chapter 11 of U.P. Inter Mediate Education Act 1921 the
aforesaid post is to be filled by promotion of highest grade of sr.
most lecturer.
G
T1te Managing Committee unanimously accept the ad-hoc appoint-
ment of Sri Mrmishwar Dutt Pandey MA. Acha1ya on the basis of
his high service of 19 years."

H [Emphasis supplied]
M.D.PANDEYv. R. TIWARI [S.B. MAJMUDAR,J.J 475.

We have also seen the original version of the Resolution which was in A
Hindi. A copy thereof was taken on record by consent of parties. It is no
doubt true that the Resolution had stated th~t the post of the Principal was
vacant on account of retirement of the the Pri'ncipal on 20th June 1988
and the post was to be filled in by promotio . But that is only introductory
paragraph of the Resolution. The operative part of the Resolution clearly
B
mentions that Managing Committee unanimously accepts the ad hoc ap·
pointment of the writ petitioner Shri Munishwar Dutt Pandey. The original
version of this operative part of the Resolution in Hindi states that the
Management accepts the ad hoc appointment of the writ petitioner as
Principal. The words are 'tadarth niyukti sweekar karti hai'. Learned
counsel for the contesting respondent would have been right if the Resolu· c
tion would have read as 'tadarth niyukti karti hai'. Acceptance of the ad
hoc appointment is dif\erent from ordering ad hoc appointment. In other
words the operative par!;; of the Resolution does not read that the Manag·
ing Committee unanimo~sly appoint Shri Munishwar Dutt Pandey as ad
hoc Principal. On the co~rary it states that the 'Managing Committee D
unanimously accepts the hoc appointment of Shri Munishwar Dutt
Pandey' meaning thereby tha the ad hoc appointment of the writ petitioner
made by the President with effect from 1st July 1988 is ratified and
approved. Not only that this aspect is further highlighted by the approval
granted by the Inspector of Schools to the said appointment by promotion
for the purpose of salary grant from 1st July 1988 itself as seen from the E
letter of District Inspector of Schools dated 19th May 1989 which accords
sanction for payment of salary for ad hoc appointment of writ petitioner,
senior most lecturer of the College from the date of taking over charge of
the post of Principal which fell vacant due to retirement of the then
Principal Shri Misra. It is of course true that the said approval letter of the F
District Inspector of Schools mentions that the said appointment is under
Section 18 of the Act, but in the light of the legal position which emerges
in the background of well established facts on record it has to be held that
the said appointment by promotion, of course on ad hoc basis, was to take
effect from 1st July 1988 and it would obviously be prior to the notification
of the vacancy which would have taken place not on 1st July 1988 itself but G
at any time within 15 days from the occurrence of that vacancy. Learned
counsel for the writ petitioner in this "onnection invited our attention to
the Law Lexicon Reprint Edition 1987 of Shri P. Ramanatha Aiyar wherein
at page 13 the word 'acceptance' has been shown to have one of the
meanings, 'receipt of a thing offered by another with an intention to retain H
476 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A it, as acceptance of a gift' or 'taking and accepting of anything in good
part and as it were a tacit agreement to a preceding act, which might have
been defeated and avoided were it not for such acceptance'. In our view
;
the phraseology employed by the Managing Committee in its Resolution
of 29th October 1988 leaves no room for doubt that it had accepted and
B ratified what its President had done when he passed the first order promot-
ing on ad hoc basis the writ petitioner as Principal of the College with effect
from 1st July 1988. In the written submissions on behalf of the contesting
respondent it has been pointed out that the agenda of the meeting of the
Managing Committee was confined to the filling up of the vacancy of
Principal on ad hoc basis. We fail to appreciate how this agenda could be
C said to have been given a go-by when the Resolution was passed accepting
the ad hoc appointment made earlier by the President. The Managing
Committee was alive to the question about filing up of the vacancy of
Principal by promotion on ad hoc basis and it is on that subject that the
Managing Committee deliberated and passed the Resolution which must
D be given effect according to its express terminology.

Faced with the aforesaid difficulty learned counsel for the contesting
respondent submitted that Section 18 which is the parent provision must
operate and cover the field of vacancies which may come into existence
after the commencement of the Act and paragraph 2 of the Order being
E an act of subordinate legislation, must yield to parent prO\osions of Section
18. As a general proposition of law there cannot be any dispute on this
aspect. In the written submissions on behalf of the contesting respondent
it has been pointed out by referring to a decision of this Court in the case
of Ramesh Bi1th & Ors. Etc. v. Union of India & Ors. Etc., (1989] Supp. 1
F 430, that subordinate legislation cannot be in conflict with or repugnant to
the parent provision. We fail to appreciate how this submission can be of
any avail to the contesting respondent. He will be right in this contention
if it is shown that paragraph 2 of the Order is repugnant to Section 18. It
is of course true that both of them deal with the same topic, namely, 'Ad
hoc appointment of teachers in an institution governed by the Act'. But a
G mere look at Section 33 shows that the legislature in its wisdom has
provided that the order making authority may in case of difficulties remove
the same by notified order. Once that happens the Order itself has the
affect of modifying or even omitting the existing provisions of the Act for
the period specified in the Order. As there is no specification of any period
H of life for the Order and as held by this Court it operates on a permanent
M.D.PANDEYv. R. TIWARI [S.B. MAIMUDAR,J.] 477

basis, when the Order operates the provisions of the Act which may be A
covering the field will themselves get modified or altered or even omitted.
That exercise is permitted by the parent legislation itself by enacting
Section 33 the vires of which are not in dispute before us. Even that apart
sub-section (2) of Section 33 itself provides that such an order has to be
laid before both the Houses of the State Legislature. So it would get the
B
sanction of the parent legislature itself. As we have seen earlier Section 16
of the Act which deals with 'appointments to be made only on recommen-
dations of the Commission or the Board' is expressly made subject to
Sections 33 and 33-A, amongst others. These provisions are in the parent
Act itself and consequently Section 33-A which is a part and parcel of the
parent provision has to operate of its own and there cannot be inconsis- c
tency or incongruity between the two provisions of the same Act, namely,
Section 18 on the one hand and Section 33-A including Section 33-A(1)(1-
A) on the other.

For all these reasons, therefore, contention of contesting respondent
that paragraph 2 of the Order which itself is incorporated in Section D
33-A(1)(1-A) and is a part and parcel of the same parent provision is in
any way repugnant to Section 18 of the Act. It must, therefore, be held that
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 E
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 ratification by the Managing Committee of the action of its
President as seen earlier. The second point for determination, therefore,
F
is answered in the negative.

Point No. 3

The answer to this point is covered by the aforesaid discussion on G
Point No. 2 an accordingly it must be answered by holding that the writ
petitioner's appointment by promotion as ad hoc Principal was effective
from 1st July 1988.

As a result of the aforesaid discussion it must be held that the
Division Bench of the High Court with respect was in error when it upset H
478 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A the decision of the learned Single Judge who had held in favour of the writ
petitioner. It must be held that the writ petitioner was regularised by the
deeming provision of Section 33-A(l)(l-A) as Principal of the College with
effect from 9th Apri.1 1991 and contesting respondent, therefore, could not
be appointed to the said post pursuant to the selection process which
B became abortive and inoperative in law as there was in fact no vacancy of
the Principal which could be filled up by any selection process undertaken
after 8th April 1991 so far as the College managed by the 4th Respondent
is concerned.

In the result this appeal succeeds and is allowed. The order of the
C Division Bench of the High Court in Special Appeal No. 300 of 1992 is
quashed and set aside and instead the Jrder passed by the learned Single
Judge on 7th September 1992 is restored. Writ petitioner's writ petition
will accordingly stand allowed. As a consequence of the present order, the
order of status quo granted on 15th April 1996 will stand vacated. The writ
petitioner is held entitled to function as full-fledged Principal of the
D College subject to his probation being declared by the Management. In the
facts and circumstances of the case there will be no order as to costs.

R.P. Appeal allowed.