Holding

Section 16(GG) of the 1921 Act does not apply because the teacher’s appointment was not made under that Act, and therefore the claim for regularisation fails.

Summary

Vibha Shukla, a sports teacher, was appointed on a temporary basis under the Uttar Pradesh Municipal Corporations Adhiniyam, 1959, with successive extensions before being terminated in 1980. She challenged the termination and sought regularisation of her services under section 16(GG) of the Uttar Pradesh Intermediate Education Act, 1921. The Tribunal and the Allahabad High Court held that the 1921 Act applied, but the Supreme Court examined the statutory scheme and held that her appointment was not made in accordance with the 1921 Act; consequently, the legal fiction of section 16(GG) could not be invoked. The Court emphasized that the later 1959 Act and its rules govern such appointments and that a later statute prevails over an earlier one in case of conflict. Accordingly, the appeal was allowed, setting aside the Tribunal and High Court judgments.

Issues considered

The applicability of the Uttar Pradesh Intermediate Education Act, 1921 (section 16(GG)) to a teacher appointed under the Uttar Pradesh Municipal Corporations Adhiniyam, 1959.
Whether a temporary appointment under the 1959 Act can be regularised under the 1921 Act.
Whether the later 1959 Act prevails over the earlier 1921 Act in case of inconsistency.
Whether the conditions precedent under section 16(GG) of the 1921 Act were satisfied.

Legislation cited

Uttar Pradesh Intermediate Education Act, 1921s. 16(E), s. 16(GG)

Subjects

regularisationtemporary appointmentstatutory interpretationlater law prevailslegal fictionmunicipal corporationeducation actemployment lawconstitutional equality

Judgment

A NAGAR MAHAPALIKA, KANPUR
-~
v.
SMT. VIBHA SHUKLA AND ORS.

MAY 18,2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

~
U.P. Intermediate Education Act, 1921-s. 16(GG) and 16 E-U.P. "
--t-
Municipal Corporations Adhiniyam, 1959-s. JOB-Appointment ofincumbent
on a temporary post in terms of 1959 Act-Services extended from time to
c time-Termination thereafter-Claim for regularization in terms of 1921 Act-
Applicability of I 92 I Act vis-a-vis I 959 Act-Held: Incumbent was appointed
in terms of 1959 Act-Section 16 (GG) Act raises a legal fiction where/or the
conditions precedent laid down must be strictly complied with-Thus, having
not been appointed in conformity with the provisions of the 1921 Act, section
D 16(GG) of the 1921 Act has no application.

Respondent No.I was appointed for a period of one year on a temporary ...
post in terms of U.P. Municipal Corporations Adhiniyam, 1959. Her services --r-
were extended from time to time and were later terminated. Respondent no. 1
challenged the termination and claimed regularization of services in terms
E of section 16(GG) of the UP Intermediate Education Act, 1921. Tribunal allowed
the application. Aggrieved appellant filed writ petition which was dismissed.
Hence, the present appeal.

The question which arose for consideration in this appeal was with
regard to the applicability of UP Intermediate Education Act, 1921 vis-a-vis
F U.P. Municipal Corporations Adhiniyam, 1959.
'
-{
Allowing the appeal, the Court -.

HELD: 1.1 Appointment of the first respondent on a temporary post was '
extended from time to time. Having regard to the statutory embargo contained
G in section 108 of the U.P. Municipal Corporations Adhiniyam, 1959, each of
such extension must be treated to be a fresh appointment Her appointment
was not made in terms of section 16 E of the UP Intermediate Education Act,
1921. Whereas an appointment in terms of section 108 of 1959 Act cannot
--r
be made for a period exceeding one year, in terms of section 16-E (11) of 1921
H 488
NAGARMAHAPALIKA. KANPUR v.VIBHA SHUKLA 489

Act, an appointment can be made for a period not exceeding six months and, A
that too subject to the condition that no appointment made under the said
section would not, in any case, continue beyond the end of the educational
session during which such appointment was made.
[Para 14) [494-E-G]

1.2. The 1959 Act, being a later Act, ordinarily would prevail over the B
1921 Act. Rules have also been framed under the 1959 Act. The provisions
of the said Rules being in consonance with the provisions of the 1959 Act
( would be treated to be a part thereof as it is well settled that Rules validly
framed would become part of the main legislation. Thus, any appointment made

-J
in terms of section 108 of the 1959 Act must conform to the provisions
contained therein as also the rules framed thereunder. Section 108 of the
c
1959 Act is an exception to the provisions of Section 107 thereof, which in
turn is in tune with the constitutional scheme laid down under Articles 14
and 16 of the Constitution of India. Prior to 1.12.1977 when section 108-A
· was introduced, an appointment of a teacher to be made by a Municipal Council
was to be governed by the provisions contained therein or the rules framed D
thereunder. Section 108-A does not incorporate the provisions of the 1959
.... Act by reference. It merely carves out an exception to sections 107 and 108
of the Act provided that all such appointments were made in terms of the 1921
Act. Therefore, section 16 (GG) of the 1921 Act per se would not apply when
no appointment has been made in terms thereof. Section 16 (GG) of the 1921
E
Act raises a legal fiction wherefor the conditions precedent laid down must
be strictly complied with. [Para 15) (494-H; 495-A-C]

Di/ip S. Dahanukar v. Kotk Mahindra Ltd., (2007) 5 SCALE 452,
referred to.
F
1.3. Respondent No. 1 was appointed during the period August 18, 1975
and 30th September, 1976 on temporary basis. The appointment as also the
~ terms and conditions of services of the first respondent are governed by the
1959 Act. Such an appointment was not made in terms of sub-section (11) of
section 16-E of the 1921 Act. There is nothing to show that there existed a
clear vacancy or she was appointed in terms of the Act. G
[Paras 16 and 19) [495-D; 497-A; 495-E]

1.4. Procedures for appointments under the 1921 Act and the 1959 Act
' -<r-
~ are different. The Selections Committees constituted under both the Acts also
are different. The terms and conditions of the teachers appointed under the
H
490 SUPREME COURT REPORTS . [2007] 7 S.C.R.

A two Acts are also different No case involving inconsistencies in the provisions
of the two statutes arises. Thus, the findings of the Tribunal as upheld by
+
High Court that the said provisions would apply to the case of the first
respondent cannot be accepted. [Para 16) (495-E)

1.5. Respondents contended that the respondent was appointed along with
B others during the period 1.7.1976 to 30.6.1977. It may be so but having not ~
I

been appointed in conformity with the provisions of the 1921 Act, Section 16- F
GG of the 1921 Act has no application in the instant case. thus, the Tribunal
as also the High Court committed a manifest error in passing the impugned )
judgments and thus are set aside. -r
c [Paras 17 and 22) [495-F-G; 498-CJ :P

Vikramaditya Pandey v. Industrial Tribunal, Lucknow & Anr., [2001] 2
SCC 423; Secretary, State ofKarnataka & Ors. v. Umadevi (3) & Ors., (2006)
4 SCC 1 and Post Master General Kolkata & Ors. Tutu Das (Dutta), (2007)
6 SCALE 453 , referred to.
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2748 of2007.

From the Final Judgment and Order dated 1.9.2005 of the High Court of ,._
Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 3030(S/ -f-

B) of 1991.
E
Pradeep Misra for the Appellant.
'\

Dr. Meera Agarwal, Ramesh Chanda Mishr? for the Respondents.·

The Judgment of the Court was delivered by
F S.B. SINHA, J. 1. Leave granted.
~
2. This appeal is directed against the judgment and order dated 01.09.2005 --(
passed by a Division Bench of the Allahabad High Court whereby and
whereunder the writ petition filed by the appellant herein questioning the
judgment and order dated 18.0l.1991 passed by the U.P. State Public Services
G
Tribunal, Lucknow, (for short, 'the Tribunal), was dismissed.

3. Respondent No. 1 was a Sports Teacher appointed on or about
21.7.1973 for a period of one year purported to be in terms of the U.P. I
~
Muncipal Corporations Adhiniyam, 1959, (for short 'the 1959 Act'). Her services -'r :'~

H were extended from time to time. By reason of an order dated 18.08.1980, her ,,
;
NAGAR MAHAPALIKA, KANPUR v.VIBHA SHUKLA [S.B. SINHA, J.] 491

services were terminated on payment of one month's salary in lieu of notice. A
-4 She filed an application before the UP Public Services Tribunal, inter a/ia,
questioning the said order of termination dated 18.08.1980 and claiming
regularization of her services purported to be in terms of Section l 6(GG) of
the UP Intermediate Education Act, 1921 (for short 'the 1921 Act'). The
Tribunal allowed the said application. As indicated hereinbefore, the High
Court dismissed the writ petition filed by the appellant herein. B

4. The short question which arises for consideration in this appeal is
.-f the applicability of the 1921 Act vis-a-vis the 1959 Act.
-
5. The 1921 Act was enacted to establish a Board to take the place of
the Allahabad University in regulating and supervising the system of High c
School and Intermediate Education in the United Provinces, and to prescribe
the courses therefor. Appointment in terms of the said Act is permissible only
upon furnishing information in that behalf to the District Inspector of Schools
as laid down under Section l6-E(2) thereof. A teacher of an institution is
required to be selected by a Selection Committee constituted thereunder. The D
Committee of Management of the institution is empowered to appoint
.... candidates out of the list of teachers recommended in order of preference. The
,._ names of the selected candidates, as far as practicable, should consist of
three candidates for each post found by the Selection Committee to be
suitable for appointment. It is required to communicate its recommendations
together with such list to the Committee of Management in terms of Sub- E
section 6 of Section 16-E of the 1921 Act. However, sub-section (l l) thereof
provides for a non obstante clause, in terms whereof, appointments in the
case of a temporary vacancy caused by the grant of leave to an incumbent
for a period not exceeding six months may be made by direct recruitment or
promotion without reference to the Selection Committee. The proviso appended F
thereto in no uncertain terms states that such an appointment shall not
-\
~ continue for a period of more than six months or beyond the end of the
educational ses~ion during which such appointment was made.

6. Section 16-F of the Act prescribes the manner in which the Selection
Committee is to be constituted. Section l 6(FF) of the Act provides for the G
terms and conditions of service of the Head of Institutions, teachers and
other employees.
·, 7. The Legislature of the State ofUttar Pradesh inserted Section 16(GG)
"'r
in the 1921 Act by the UP Act No. 5of1977, which came into force with effect
H

.... ...
~
492 SUPREME COURT REPORTS [2007) 7 S.C.R.

· A from 21.4.1977. It reads as under:
"16(GG): Regularization of appointment of ad hoc teachers: (1)
Notwithstanding anything contained in Section 16E, 16-1 and 16-FF,
every teacher of an institution appointed between August 18, 1975
and September 30, 1976 (Both dates inclusive) on ad hoc basis against
B a clear vacancy and possession prescribed qualifications or having
been exempted from such qualifications in accordance with the
provisions of this Act, shall, with effect from the date of commencement
of this section, be deemed to have been appointed in a substantive t.
r
capacity, provided such teacher has been continuously serving the
institution from the date of his appointment up to the commencement
c of this section."

8. The 1959 Act, on the other hand, provides for the mode and manner
in which appointment for the employees of the Municipal Corporations are
to be made. Section 106 of the 19 59 Act provides for creation of one or more
D posts specified therein; Clause (vi) whereof reads as under :

"106. Creation of posts (1) Subject to such conditions as may be
prescribed a Corporation may from time to time create one or more of
the following posts, as it may consider necessary, in c9nnection with
its affairs, namely
E ••• •••
•••
(iv) other posts of officers; staff and other servants necessary for the
efficient discharge of its functions"

9. Section 107 prescribes the manner in which such appointments are
F required to be made. Sub-sections (2) and (3) thereof read as under :

"(2) Appointments to the posts not included in the posts referred to t
T
in Sub-section (1) per mensem shall be made after consultation with
the State Public Service Commission in the manner prescribed and not
otherwise. The authority to appoint such officers and servants of the
G Corporation shall vest

(a) in respect of those officers and servants who are immediately
subordinate to the Mukhya Nagar Lekha Parikshak, in the Mukhya
Nagar Lekha Parikshak, and

H
NAGAR MAHAPALIKA, KANPUR v.VIBHA SHUKLA [S.B. SINHA, J.] 493

(b) in respect of all other officers and servants, in the Municipal A
Commissioner.

(3) All other appointments except those specified in Sub-sections {l),
0
(2) and (5) shall be made in accordance with the recommendations of
a Selection Committee constituted under Sub-section (4) and authority
to make such appointments shall vest- B
(a) in respect of those officers and servants who are immediately
•~ subordinate to the Mukhya Nagar Lekha Parikshak, in the Mukhya
Nagar Lekha Parikshak, and

(b) in respect of all other officers and servants, in the Munieipal
Commissioner."
c
IO. Sub-section (4) of Section 107 provides for constitution of the
Selection Committee referred to in sub-section (3) therein. Section 108, however,
empowers the authorities to make officiating and temporary appointments to
certain posts without consulting the State Public Service Commission or D
-4
obtaining the recommendations of the Selection Committee, but no such
~- appointment shall continue beyond the period of one year, nor shall be made
where it is expected to last for more than a year without consulting the State
Public Service Commission or otherwise than in accordance with the
recommendation of the Selection Committee, as the case may be.
E
11. With effect from 01.12.1977 by UP Act I 0 of 1978, Section 108-A was
introduced in the 1959 Act. A further amendment was made by inserting
Clause (b) therein with effect from 25.04.1978. Section 108-A of the 1959 Act
reads as under :

"108-A Appointment of teachers of institution maintained by F
Corporations-Notwithstanding anything in Sections 107 and 108

(a) the appointment of a teacher in any college, affiliated to any
University as defined in the Uttar Pradesh State Universities Act, 1973
and maintained by a Municipal Corporation, shall be made in
accordance with the provisions of that Act, and G
(b) the appointment of a teacher or Head of an institution
L

""T
recognized in accordance with the Intermediate Education Act, 1921
and maintained by the Municipal Corporation shall be made in
accordance with the provisions of that Act."
H
494 SUPREME COURT REPORTS [2007] 7 S.C.R.

A 12. Section 540 occurring in Chapter XXIII of the 1959 Act provides for
the Rule making power of the State.

I 3. It is not in dispute that pursuant to or in furtherance of the said
provision, UP Nagar Mahapalika Education Services Rules have been framed.
Rule 13 of the Rules provides for appointments to be made through a
B departmental Selection Committee. Rules 16 and 17 lay down the procedure
for appointment. Rule I 9 empowers the appointing authority to make temporary
appointment for a period of less than one year. Sub-rule (3) of Rule I 9 reads
thus :

"(3) Temporary and officiating appointments-The appointing authority
c shall make appointments in temporary and officiating vacancies also
from the list, which will be valid for one year or the next selection
whichever is earlier, of candidate recommended by the Commission or
prepared by the Selection Committee, as the case may be.

Provided that in any year if the list is exhausted or if no candidate
D is available in that list, the appointing authority may, without
consultation with the Commission, where such consultation is
necessary, or without the recommendation of the Selection Committee,
make appointments in such vacancies for a period not exceeding one
year from amongst servants or persons possessing the qualifications
E prescribed for recruitment to those posts."

14_ First respondent, as noticed hereinbefore, was appointed in 1973.
Her appointment indisputably was extended from time to time. Having regard
to the statutory embargo contained in Section 108 of the 1959 Act, each of
such extension must be treated to be a fresh appointment. She was appointed
F on a temporary post. Her appointment indisputably was not made in terms of
Section 16-E of the 1921 Act. It is of some significance to notice that whereas
an appointment in terms of Section 108 of the 1959 Act cannot be made for
a period exceeding one year, in terms of Section 16-E(I I) of the 1921 Act, an
appointment can be made for a period not exceeding six months and, that too
G subject to the condition that no appointment made under the said section
would not, in any case, continue beyond the end of the educational session
during which such appointment was made.

15. The 1959 Act, being a later Act, ordinarily would prevail over the

H
1921 Act. Rules have also been framed under the 1959 Act. The provisions
of the said Rules being in consonance with the provisions of the 1959 Act
.\
NAGAR MAHAPALIKA, KANPUR v.VIBHA SHUKLA [S.B. SINHA, J.] 495

would be treated to be a part thereof as it is well-settled that Rules validly A
framed would become part of the main legislation. Any appointment made in
terms of Section 108 of the 1959 Act must, thus, conform to the provisions
contained therein as also the rules framed thereunder. Section l 08 of the 1959
Act is an exception to the provisions of Section 107 thereof, which in tum
is in tune with the constitutional scheme laid down under Articles 14 and 16
of the Constitution of India. Prior to 1.12.1977 when Section 108-A was B
..
.......
introduced, an appointment of a teacher to be made by a Municipal Councii
was to be governed by the provisions contained therein or the rules framed
thereunder. Section 108-A dces not incorporate the provisions of the 1959
Act by reference. It merely carves out an exception to Sections 107 and 108
of the Act provided that all such appointments were made in terms of the 1921 c
Act. Section 16 (GG) of the 1921 Act per se, therefore, would not apply when
no appointment has been made in terms thereof. Section 16(GG) of the 1921
Act raises a legal fiction wherefor the conditions precedent laid down
thereunder must be strictly complied with. [See Dilip S. Dahanukar v. Kotak
Mahindra Co. Ltd., [2007] 5 SCALE 452]
D
_..._
16. Respondent No. 1 was appointed during the period August 18, 1975
~
and 30th September, 1976 on temporary basis. Such an appointment was not
made in terms of sub-section ( 11) of Section 16-E of the 1921 Act. There is
nothing to show that there existed a clear vacancy or she was appointed in
terms of the Act. Procedures for appointments under the 1921 Act and the
1959 Act are different. The Selections Committees constituted under both the
E
Acts also are different. The terms and conditions of the teachers appointed
under the two acts are also different. It is, thus, difficult to accept the findings
of the Tribunal as affirmed by the High Court that the said provisions would
apply to the case of the first respondent herein.
~ F
'T 17. Learned counsel appearing on behalf of the respondents, however,
has drawn our attention to paragraph 4.5 of the counter affidavit to contend
that the respondent was appointed along with others during the period
1.7.1976 to 30.6.1977. It may be so but having not been appointed in conformity
with the provisions of the 1921 Act, in our considered opinion, Section 16-
GG thereof has no application in the instant case. G
18. Our attention has been drawn to a decision of this Court in
.....,. Vikramaditya Pandey v. Industrial Tribunal, Lucknow & Anr., [2001] 2 SCC
423 wherein this Court in a case arising under the UP Cooperative Societies
Employees Services Regulations, 1975 opined that having regard to Regulation
H
496 SUPREME COURT REPORTS [2007) 7 S.C.R.

A 103, tennination of service of an employee in violation thereof would be -
illegal, stating :

"In this case we do not find any such pleading of special circumstances
either before the Tribunal or before the High Court. Since Regulation
I 03 of the Regulations is referred to in the order of the Tribunal as
B well as in the High Court and it has bearing in deciding the controversy,
the focus is needed on it. It reads:

"103. The provisions of these Regulations to the extent of their
inconsistency with any of the provisions of the Industrial Disputes
Act, 1947, U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962,
c Workmen's Compensation Act, 1923 and any other labour laws for the
time being in force, if applicable to any cooperative society or class
of cooperative societies, shall be deemed to be inoperative."

By a plain reading of the said Regulation it is clear that in case of
inconsistency b~tween the Regulations and the provisions of the
D Industrial Disputes Act, 1947, the State Act, the Workmen's
Compensation Act, 1923 and any other labour laws for the time being
in force, if applicable to any cooperative society or class of cooperative
societies, to that extent the Regulations shall be deemed to be
inoperative. In other words, the inconsistent provisions contained in
E the Regulations shall be inoperative, not the provisions of the other
statutes mentioned in Regulation 103. The Tribunal in this regard
correctly understood the regulation but wrongly refused the relief on
the ground that no reinstatement can be ordered on a regular
employment in view of the provisions contained in the said Regulation.
But the High Court read the regulation otherwise and plainly
F misunderstood it in saying that if there is any inconsistency between
the Regulations and the Industrial Disputes Act, 1947 and other
labour laws for the time being in force the Regulations will prevail and
the Industrial Disputes Act, 1947 and other labour laws shall be
deemed to be inoperative. This misreading and wrong approach of the
High Court resulted in the wrong conclusion. In the view it took as
G
regards Regulation 103 the High Court proceeded to state that even
if there was retrenchment in view of Regulation 5 of the Regulations
the Labour Court was not competent to direct reinstatement of the
appellant who was not recruited in terms of Regulation 5 because the
Labour Court had to act within the ambit of law having regard to the
H Regulations by which the workman was governed."
NAGAR MAHAPALIKA, KANPUR v. VIBHA SHUKLA [S.B. SINHA, J.] 497

19. Such a question does· not arise for consideration before us. A
Indisputably, the appointment as also the tenns and conditions of services
of the first respondent are governed by the 1959 Act. Herein no case involving
inconsistencies in the provisions of the two statutes arises.

20. fµrthennore, it is trite that regularization is not a mode of appointment.
It has been so held by a Constitution Bench of this court in Secretary, State B
of Karnataka & Ors. v. Umadevi (3) & Ors., [2006] 4 SCC l. The principle
enunciated by the Constitution Bench of this Court in Umadevi (supra) has
inter alia been applied by this Court in Post Master General, Kolkata & Ors.
v. Tutu Das, (Dutta) [2007] 6 SCALE 453] stating as under :

"12. What was considered to be pennissible at a given point of time C
keeping in view the decisions of this Court which had then been
operating in the field, does no longer hold good. Indisputably the
situation has completely changed in view of a large number of decisions
rendered by this Court in last 15 years or so. It was felt that no
appointment should be made contrary to the statutory provisions D
governing recruitment or the rules framed in that behalf under a
statute or the proviso appended to Article 309 of the Constitution of
India.

13. Equality clause contained in Article 14 and 16 of the
Constitution of India must be given primacy. No policy decision can E
be taken in tenns of Article 77 or Article 162 of the Constitution of
India which would run contrary to the constitutional or statutory
schemes."

21. Submission of the learned counsel that persons similarly situated are
still continuing in service is not of any moment. This aspect of the matter has F

'
also been dealt with by this Court in Post Master General, Ko/kata (supra)
stating:

"17. Submission of Mr. Roy is that the respondent has been
discriminated against inasmuch as although the services of Niva Ghosh
were regularised, she had not been, may now be noticed. G
18. There are two distinctive features in the present case, which are:-

(i) Equality is a positive concept. Therefore, it cannot be invoked

r where any illegality has been committed or where no legal right is
established. H
498 SUPREME COURT REPORTS [2007) 7 S.C.R.

A (ii) According to the appellant the respondent having completed 240
days, does not fulfil the requisite criteria. A disputed question of fact
has been raised. The High Court did not come to a positive fmding
that she had worked for more than 240 days in a year.

19. Even otherwise this Court is bound by the Constitution Bench
B decision. Attention of the High Court unfortunately was not drawn to
a large number of recent decisions which had been rendered by this
Court."

22. For the reasons aforementioned, we are of the opinion that Section
16(GG) of the 1921 Act has no application to the fact of the present case and,
C thus, the Tribunal as also the High Court committed a manifest error in
passing the impugned judgments. They are set aside accordingly. The appeal
is allowed. However in the facts and circumstances of this case, there shall
be no order as to costs.

D N.J. Appeal allowed.

--
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