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Judgment
D.K. Seth, J.—The short but simple question arising in this case is as to whether the order dated 8th April, 1987 (Annexure-8 to the writ petition) cancelling the order dated 2nd July. 1985 (Annexure-1) transferring the Petitioner, a teacher for Jalali Inter College. Jalali, District Aligarh to Bajna Inter College, Bajna, District Mathura, in the light of the judgment in the case of Om Prakash Rana v. Swaroop Singh Tomar AIR 1987 SC 1672, could be valid on the enactment of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment and Validation) Act, 1991, (hereinafter referred to as the Validation Act'').
The facts giving rise to the case briefly summarised are that the Petitioner was appointed lecturer on regular basis on 1st October, 1974 in Jalali Inter College, Jalali, District Aligarh, a recognised institution under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as ''1921 Act''). By an order dated 2nd July, 1985 (Annexure-1), the District Inspector of Schools approved the Petitioner''s transfer from Jalali Inter College, Jalali to Bajna Inter College, Bajna, District Mathura, a recognised institution under the 1921 Act. Thereupon the Petitioner Joined Bajna Inter College immediately in the month of July 1985 and has been continuing there till the passing of the said order being Annexure-8. The Petitioner''s transfer as aforesaid was cancelled by the Respondent No. 1 in view of the decision dated 9th May, 1986 in the case of Om Prakash Rana v. Swaroop Singh Tomar AIR 1987 SC 1672, referred to above. It is out of this order, the present writ petition arises.
By order dated 6th May, 1987, the operation of the order of cancellation was stayed due to which the Petitioner continued to serve the said Bajna Inter College.
One Lala Ram Sheoram, a teacher of Bajna Inter College, made an application for impleadment together with an application for vacating the interim order supported by affidavit. The said application for impleadment was allowed by order dated 25th July, 1996. The learned Counsel for the added Respondent, pursuant to the prayer made was allowed to rely on the affidavit in support of the application for vacating the interim order as counter-affidavit to the main writ petition. Mr. Ashok Bhushan, learned Counsel for the Petitioner, has stated that no rejoinder affidavit would be necessary since he would be relying on a question of law, pure and simple. I have heard Mr. Ashok Bhushan, learned Counsel for the Petitioner. Mr. Sukhendra Pal Singh, learned Counsel for the added Respondent and Mr. R. S. Parihar, learned standing counsel. Mr. Ashok Bhushan, learned Counsel for the Petitioner, contends that by reason of the enactment of the Validation Act, the effect of the judgment in the case of Om Prakash Rana (supra) cannot affect the order of transfer sought to be cancelled since the same was validated retrospectively by reason of the enactment of the said Validation Act. Secondly, he contends that since the Petitioner''s transfer was made prior to the rendering of the judgment in the case of Om Prakash Rana (supra), Le., on 9th May, 1986, the Petitioner''s transfer made prior to the said judgment could not be affected unless the same is challenged in appropriate proceeding and an order is obtained thereon from the appropriate court.
Mr. Sukhendra Pal Singh, learned Counsel for the added Respondent, on the other hand, contends that by reason of various decisions referred by him in the affidavit supporting the application for vacating the interim order, the Petitioner''s transfer order was void ab initio and, therefore, the order of cancellation of the said transfer order cannot be assailed. According to him, even without the order of cancellation, the Petitioner''s transfer was void and it has been so held in various decisions referred to by him which ultimately have found support by the decision in the case of Om Prakash Rana (supra). He further sought to contend that the Validation Act could not be retrospective in operation. It could operate only prospectively. The Validation Act does not have any effect of wiping out the decision in the case of Om Prakash Rana. It cannot invalidate the law laid down by the Apex Court.
Mr. Parihar, learned standing counsel, adopted the submissions made by Mr. Sukhendra Pal Singh and contended that there was nothing wrong in the order (Annexure-8) Impugned. According to him, the Validation Act having been, passed in 1991, the order of cancellation cannot be invalidated. Inasmuch as in view of the order of cancellation of the order of transfer, the order contained in Annexure-1 did not have any existence. Therefore, there was no scope for its validation on account of the impact of the Validation Act.
In reply Mr. Ashok Bhushan contended that the Validation Act can be retrospective in operation. Though by reason of the Validation Act, the decision in the case of Om Prakash Rana is not wiped out but still it had the effect of validating the transfer made after July 14, 1981. When the 1991 Act was passed, the order of cancellation was non-existent because of its operation have been stayed by this Court through its order dated 6th May, 1987. Unless the Validation Act is declared ultra vires or is amended or repealed, the same continues to have effect. The vires of the said Act has not been challenged. Therefore, though the Act was enacted subsequent to the filing of the writ petition, even then the Petitioner''s transfer stands validated by reason of the said enactment.
The order of transfer was challenged in Writ Petition No. 17225 of 1986 by the Petitioner. The said writ petition was disposed of on 30th January, 1987 wherein it was observed that the Petitioner could not challenge the said order because he had given his consent before transfer (Annexure-10). The order dated 8th April, 1987 (Annexure-8) was challenged by Respondent No. 3 in a Writ Petition on 29th April, 1987 in which it was observed that it was the Petitioner who is aggrieved and he should come forward. Thereupon the Petitioner had moved the present writ petition. Thus it is apparent that Respondent No. 3 is also espousing the cause of the Petitioner which is synonymous to their own cause.
In order to appreciate the rival contentions, it is necessary to trace the history of the enactment relevant for our purpose.
The condition of service of a teacher in the Inter College was governed by Section 16G(2) (c) of the 1921 Act, so far as it relates to the transfer of service of a teacher from one Institution to another, both recognised. The said 1921 Act had permitted transfer of service from one recognised Institution to another. The application of Section 16G (2) (c) stood eclipsed by amendment of U.P. Secondary Education Services Commission and Selection Board Act, 1982 (Act 5 of 1982) (hereinafter referred to as ''the 1982 Act'') which provided in Section 16 that notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made therein but subject to certain provisions other than Section 16G, every appointment of a teacher after the date of commencement of 1982 Act is to be made by the Management only on the recommendation of the Board except that Section 16EE of the 1921 Act would apply mutatis mutandis in inspect of retrenched employees. There were series of cases covering the controversy, some of which have been referred to in the affidavit filed by the added Respondent holding one way or the other ultimately culminating the decision of the Full Bench in the case of R.P. Bhatnagar v. Administrator 1985 UPLBEC 346. But the law was declared in the case of Om Prakash Rana (supra) by the Apex Court which laid down its observation in the following expression:
In view of the aforesaid consideration, we hold that upon the constitution of a Commission under the Services Commission Act it is no longer possible for a vacancy in the post of Principal, Headmaster or Teacher of the categories mentioned in the Schedule to the Services Commission Act to be filled by the process of transfer u/s 16G (2) (c) of the Education Act and its Regulations....
The said decision was rendered on 9th May, 1987 by the Apex Court. Therefore, the law as it stood on 9th May, 1986 was that as laid down in the case of Om Prakash Rana (supra).
Now the order of cancellation (Annexure-8) remained stayed by virtue of the interim order passed in the present proceedings. During the pendency of the present proceedings, the Validation Act was enacted with an object to amend the 1982 Act and to validate certain actions and to provide for matters incidental thereto and connected therewith. The Statement of Objects and Reasons appearing in the Prefatory Note of the said enactment proceeds as follows:
An Act further to amend the Uttar Pradesh Secondary Education Services Commission and Selection Board Act, 1982 and to validate certain actions and to provide for matters incidental thereto and connected therewith.
It is hereby enacted in the Forty-second year of the Republic of India as follows:
Prefatory Note--Statement of Objects and Reasons.--(1) The transfers of Principals and teachers were being made from one Institution to another under clause (c) of Sub-section (2) of Section 16G of the Intermediate Education Act, 1921 and the regulations framed thereunder. This practice continued even after the'' enactment of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982. Some transfer orders were challenged through Writ Petitions in the Allahabad High Court. The Hon''ble Supreme Court in a Civil Appeal held that the transfer of a Principal or a teacher from one Institution to another in accordance with the provisions of clause (c) of Sub-section (2) of Section 16G of the Intermediate Education Act, 1921 and the regulations made thereunder is no longer possible in view of the provisions of Sub-section (2) of Section 16 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 which provides that the appointment of a Principal or a teacher, other than the appointment made by the management of an institution on the recommendations of the Secondary Education Services Commission or Secondary Education Selection Boards, as the case may be, shall be void.
In order, therefore, to avoid the difficulties arising out of the decision of the Supreme Court, it has been decided to amend the aforesaid Act of 1982 to provide for the transfer of principals and teachers from one Institution to another and also for validating the transfers made after July 14, 1981, till the date of commencement of the amending Act.
a This Bill is introduced accordingly.
By reason of the said enactment, a proviso was added after the proviso to Section 16 of the Validation Act by Section 2 of the said Validation Act amending Section 16 which was validated by Section 3 thereof. The texts of Sections 2 and 3 are quoted below:
Amendment of Section 16 of U.P. Act No. 5 of 1982--In Section 16 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982, in Sub-section (1), after the existing proviso, the following proviso shall be inserted and be deemed always to have been inserted, namely:
Provided further that the appointment of a teacher by transfer from one institution to another, may be made in accordance with the regulations made under clause (c) of Sub-section (2) of Section 16G of the Intermediate Education Act, 1921.
Validation.--Notwithstanding any judgment, decree or order of any Court or authority, the appointment of a teacher by transfer from one institution to another made in pursuance of the regulation made under clause (c) of Sub-section (2) of Section 16G of the Intermediate Education Act, 1921, on or after July 14, 1981 and before the commencement of this Act, shall be, and deemed always to have been, valid and lawful as if the provisions of this Act were in force at all material times.
Subsequently Section 16 was replaced and substituted altogether by U.P. Act No. 1 of 1993 by reason whereof Section 16 of the 1982 Act stands at the present moment as follows:
Appointment to be made only on the recommendation of the Board.--(1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulation made thereunder but subject to the provision of Sections 21B, 21C, 22D, 33, 33A and 33B, every appointment of a teacher, shall, on or after the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Board (Amendment) Act, 1922, be made by the Management only on the recommendation of the Board:
Provided that in respect of retrenched employees, the provision of Section 16EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply:
Provided further that the appointment of the teacher by transfer from one institution to another, may be made in accordance with the regulations made under clause (c) of Sub-section (2) of Section 16G of the Intermediate Education Act, 1921.
(2) Any appointment made in contravention of the provision of subsection (1) shall be void.
By reason of the second proviso to Section 16 of the 1982 Act, the effect of Section 16G (2) (c) of 1921 Act, since eclipsed by enactment of 1982 Act, stood removed. The said removal stood validated with retrospective effect from July 14, 1981 and the eclipse of 1982 Act stood altogether wiped out because of Section 3 of the Validation Act deeming the said proviso to be in force at all material times notwithstanding any judgment, decree or order of any Court or authority in respect of transfer of a teacher from one Institution to another made pursuant to Section 16G (2) (c) of the 1921 Act and the regulation made thereunder.
Thus the effect of the said Validation Act was that the transfer of the Petitioner made on 2nd July, 1985 was a valid piece of action notwithstanding the law laid down by the Apex Court in the case of Om Pralaish Rana (supra) and the provision of Section 16 of the 1982 Act which stood excepted by addition of the second proviso through Section 2 of the Validation Act having been always in force by reason of Section 3 of the Validation Act.
Now it is an established principle of law that there is no restriction on the plenary Jurisdiction of legislation by the Legislature within the field or subject. in exercise of such plenary Jurisdiction, the Legislature can remove informing in any law Indicated in any judgment. The Legislature has absolute power to give effect to such enactment either prospectively or retrospectively. However, by such enactment, the Legislature cannot set aside, annul or override a judgment of the Court. The cases which have since been decided by the Courts cannot be wiped out by such enactment. But those cases in respect whereof no decision has been given by any Court or which has not reached finality and is still awaiting decision are excepted and can very well be attracted within the purview of such validation even retrospectively. Validating Acts, are enacted in order to remove defects in the statute retrospectively for the purpose of saving the actions taken under such defective statutes when such defects are pointed out in some judgments. Such legislation removes the infirmity without affecting the judgment already delivered in a particular case which remains binding between the parties inter se despite such legislation. Such legislation, therefore, is not an encroachment on judicial power.
In the case of Shri Prithvi Cotton Mills Ltd. and Another Vs. Broach Borough Municipality and Others, , it was held:
When a Legislature sets out to validate a tax declared by a Court to be illegally collected under an Ineffective or an Invalid law, the cause for Ineffectiveness or Invalidity must be removed before validation can be said to take place effectively. The most important condition, of course. is that the Legislature must possess the power to impose the tax, for, if it does not the action must even remain ineffective and illegal. Granted legislative competence. It is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of Judicial power which the legislature does not possess or exercise. A Court''s decision must always bind unless the conditions on which It is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a Court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the Jurisdiction. Validation of a tax so declared Illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for Jurisdiction where Jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law.
The same view has been taken in the cases of West Ramnad Electric Distribution Co. Ltd. Vs. State of Madras, ; Udai Ram Sharma v. Union of India AIR 1968 SC 1138 ; Tirath Ram Rajindra Nath, Lucknow Vs. State of U.P. and Another, ; Krishna Chandra Gangopadhyaya and Others Vs. The Union of India and Others, ; Hindustan Gum and Chemicals Ltd. Vs. State of Haryana and Others, and Utkal Contractors and Joinery (P) Ltd. and Others Vs. State of Orissa, .
The above cases were referred to and relied upon in the case of Bhubaneshwar Singh and Bimla Devi Poddar and Others Vs. Union of India (UOI) and Others, . The view is also reiterated in the case of State of Orissa and another Vs. Gopal Chandra Rath and others, . Therefore, the validation with retrospective effect is within the legislative competence of the Legislature while legislating the said Validation Act for removing the defect pointed out in the case of Om Prakash Rana (supra) without wiping out the said decision while removing the defect or rather conflict in between the 1982 Act and 1921 Act to the extent as provided in Section 2 of the said Validation Act.
By reason of the present position of Section 16 of the 1982 Act together with the proviso which is deemed to have been in the section at all material times, the order of transfer (Annexure-1) of the Petitioner stood validated since the same was effected long after 14th July, 1981, namely, on 2nd July, 1985. Therefore, the order cancelling the transfer cannot be sustained in view of the facts and circumstances of the present case. Inasmuch as the decision in the case of Om Prakash Rana was the law laid down and was binding and, therefore, the order of cancellation (Annexure-8) would have been valid and final if not challenged by means of the present writ petition and the operation thereof was not stayed by the impugned order. On the date of legislation of the Validation Act, the order of cancellation (Annexure-8) having remained stayed and subject-matter of one in. pending proceedings, the order of transfer dated 2nd July, 1985 (Annexure-1) was in force and, as such, was attracted and covered by the Validation Act.
That apart, the order of cancellation (Annexure-8) was based solely on the decision in the case of Om Prakash Rana (supra). The Validation Act having specifically expressed validity of the transaction (Annexure-1) notwithstanding any judgment, decree or order of any Court or authority shall be valid and lawful. The said expression used in Section 3 of the Validation Act clearly lays down that notwithstanding the judgment in the case of Om Prakash Rana (supra), the transaction (Annexure-1) is valid and lawful, and further that notwithstanding the order of any authority, the transaction (Annexure-1) is valid and lawful. in other words, notwithstanding the order of Respondent No. 1 which is authority, the order contained in Annexure-8, the transaction remains valid.
Furthermore by reason of the expression that the added second proviso were in force at all material times in the 1982 Act presupposes that the second proviso was in existence fictionally and operative right from the date of legislation of 1982 Act by reason of the deeming provision as enacted by Section 3 of the Validation Act. Therefore, the said proviso is deemed to have been in force on 2nd July, 1985 when the order (Annexure-1) was passed. The order, therefore, was valid when it was passed. The said validity cannot be affected by the decision in the case of Om Prakash Rana (supra) or by the order of cancellation (Annexure-8) by any authority. By reason of the second proviso having remained in force at all material times, the transaction stood valid before the order of cancellation (Annexure-8) could be passed or was actually passed. By reason aforesaid, the implication of the Validation Act renders the order of cancellation void and ineffective. The intention of the Legislature as is apparent from the statement of objects and reasons is clear and unambiguous and was aimed at removing the contradiction and /or conflict between Section 16G (2) (c) of the 1921 Act and Section 16 of the 1982 Act and to reconcile both the provisions operating in the same field in order to bring about a workable application for avoiding unnecessary complications resulting into serious and unending complicated situations acting derogatory to the purpose of the legislation which would act contrary to the advancement of the purpose of the legislation. An interpretation of a legislation is to be given in a manner so as to advance the purpose of the enactment and to further the purpose therefor. The interpretation hereby given above seems to be in consonance with the above principle which is by now an established one.
In view of the facts and circumstances of the case and in view of the observations made above, therefore, the impugned order contained in Annexure-8 cannot be sustained and is liable to be quashed and is hereby quashed. Let a writ of certiorari do issue accordingly.
The writ petition thus stands allowed. There will, however, be no order as to costs.