KUMARI NISHI BHARGAVA Vs. DEPUTY DIRECTOR OF EDUCATION

JUDGEMENT

(1.) CLASH of interest, more superficial than real, has arisen between ad-hoc teachers, appointed or promoted under Removal of Difficulties Orders issued from time to time by the Governor in exercise of powers under section 33 of Ordinance No. 8 of 1981 and reserve-pool-teachers-appointed between 9th and 19th January 1978 during mass strike by teachers of U. P. Madhyamic Sangh, due to addition of Chapter IV A and Section 33-A to U. P. Higher Education Service Commission Act (Act V of 1982) (hereinafter referred to as the Act) by Act 28 of 1985. Unfortunately it has been aggravated, further due to misapprehension about exact scope of these sections resulting in different orders by different Inspectors of Schools and directions by higher authorities.

(2.) FOR a proper grasp of the issue, mainly legal, it is necessary to narrate in brief the background which led to addition of these provisions and the objectives they seek to achieve. Education, particularly, at higher secondary level was regulated under U. P. Intermediate Education Act, 1921. It contained detailed provisions regarding Constitution of Board, recognition of institutions, conduct of examinations etc. Method of recruitment of teachers, their service conditions, however, were governed by regulations framed by the Board. From fiftees onwards greater attention towards education resulting in liberalised grants in aid and easier recognition of private institutions appears to have given rise to vested interests, exposing the teachers to exploitation by commercially minded managements. The evil became so rampant that the Legislature intervened and added

(3.) AS mentioned earlier by same Ordinance issued in 1985 (Chapter IV-A) dealing with reserve-pool-teachers was added to the Act. Section 21-B of the Act provided for absorption of reserve-pool-teachers. What is meant by reserve- pool-teachers is mentioned in section itself by saying that those teachers who had been appointed in any institution either by Management or any Inspector under sub-section (4) of U. P. Payment of Salaries Act, while U. P. High School and Intermediate Payment of Salaries and other Employees Ordinance, 1977 was enforced and who had actually joined their duties in pursuance of the said provision between January 9, 1978 and January 19, 1978. Sub-section (2) provides that if such teacher continued in service by reason of any order of the court or by any other reason then he shall be deemed to nave been regularly appointed to such post and shall be entitled to confirmation with effect from the date on which he would have been confirmed in normal course. Sub-section (3), which is relevant, is extracted below : "Where any substantive vacancy in post of teacher in an institution is to be filled by direct recruitment, such post at the instance of the Inspector be offered by the Management to a teacher other than the teacher referred to in sub-section (2) whose name is entered in the register referred to in subsection (1)." These provisions, also, have a background. In 1977 90 percent of the teachers of recognised institutions went on indefinite strike from 2nd December in respect of a call by their association. The reason for the strike, its effect etc have been mentioned in detail in Prabodh Verma v. State of U. P., 1984 ALJ 931. What is relevant to be mentioned is that services of more than two thousand striking teachers had come to an end because they did not comply with various orders issued by the government and their places were occupied by fresh appointments. But when settlement was arrived at between government and Madhyamik Shikshak Sangh then services of those teachers who had been appointed in place of striking teachers were terminated. This naturally caused resentment and the government promulgated an Ordinance no. 10 providing for maintenance of a list of such teachers to be known as reserve-pool-teachers for appointment in direct and substantive vacancies occurring thereafter. It was succeeded by another Ordinance known as Ordinance No. 22 of 1978. Both these Ordinances were struck down by this court, being violative of Article 14. The judgment was, however, set aside by the Supreme Court in the above mentioned case and it was directed that those reserve-pool-teachers who had been appointed under the Ordinances and were continuing under interim orders were entitled to be confirmed. And those who could not be appointed because of judgment of High Court were entitled to be appointment. It is this decision which gave birth to Chapter IV-A of the Act which obviously has been enacted to give effect to the decision in the case of Prabodh Verma