Suman Bhatnagar (Smt.) vs State of U.P. and others

A.P. Sahi, J.

Heard learned Counsel for the petitioner and the learned Standing Counsel for the respondents.

The challenge is to the order dated 7.8.2004 communicated by the Joint Director of Education whereby the claim of the promotion of the petitioner as Lecturer in Economics has been turned down on the ground that the petitioner has not completed 5 years of continuous regular service on the date of occurrence of vacancy and, as such, the petitioner is not entitled to be promoted.

The relevant Rules for the purposes of examining the validity of the order is Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998, which is quoted herein below :

"14. Procedure for recruitment by promotion. Where any vacancy is to be filled by promotion all teachers working in trained graduates grated or Certificate of Teaching grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates grade, as the case may be, without their having applied for the same."

The petitioner was undisputedly appointed on ad hoc basis against a substantive post on 4.8.1993. This appointment was approved by the competent authority on 31.1.1994. The petitioner has been regularly and continuously discharging her duties as a Teacher in LT grade since the date of her aforesaid appointment and approval. The petitioner''s appointment was considered for Regularization under the provisions of Section 33C of the U.P. Secondary Education Services Selection Board Act, 1982 and an order was passed on 23.5.2002, copy whereof has been filed as Annexure3 to the writ petition, whereby the petitioner''s services were regularized and she was appointed in substantive capacity with effect from the said date on probation of one year. A perusal of the order dated 23.5.2002 establishes the facts narrated hereinabove.

A post of Lecturer in Economics fell vacant on 30.6.2002. The petitioner claimed promotion on the aforesaid post. There is no dispute about the qualification of the petitioner. The only ground on which the claim of the petitioner has been turned down is that the petitioner has not put in 5 years'' continuous regular services as on the date of occurrence of vacancy. It is to be noted that under the Rules the date on which the candidature has to be considered is the first day of the year of recruitment and not the date of occurrence of vacancy. The impugned order, therefore, erroneously proceeds on the aforesaid presumption that the date of occurrence of vacancy would be the relevant date. So far as the question of continuous regular service is concerned, the admitted facts are that the petitioner was appointed in accordance with Rules on ad hoc basis against a substantive vacancy. The said appointment was a regular appointment and cannot be termed to be irregular in any way.

The meaning of the word regular as understood in ordinary parlance is in accordance with Rule, law or principle; in accordance with custom; normal; unvarying; orderly; properly authorized. In Black''s Law Dictionary, Fifth Edition, pp. 1155 defines the word ''Regular'' asConformable to law, steady or uniform in course, practice, or occurrence made according to rule arranged according to established plan, law or principle. Antonym of ''casual'' or "occasional".

Webster''s Dictionary, Volume II, page 1913 defines "regular" as to mean "formed" built, arranged or ordered according to some established rule, law principle........" Compare regular..........."Regular" may imply conformity to a prescribed rule.

The appointment of the petitioner stands saved under the Rules and, as such, in these circumstances, the appointment of the petitioner can be safely termed as regular. It is also admitted on record that the petitioner continued to serve as LT grade Teacher without any break and was also approved by the District Inspector of Schools. Thus, the definition as provided under Rule 14, quoted hereinabove clearly covers the case of the petitioner. The respondents seems to be confusing with the word substantive inasmuch as the word used in Rule 14, are not to the effect that the petitioner should be appointed on a substantive basis in LT grade.

The definition of the word substantive an understood ordinarily is lasting for a long time; spread over a long period; expressing existence; real; independently and separately existent; not merely inferential or implied; not subservient.

A comparison of the meaning of the aforesaid 2 words namely regular and substantive leave no room for doubt that the words are not synonymous. It is something different that services in a substantive capacity would almost in all cases be regular but the converse may not be true. Every regular service need not be substantive in nature. A regular service in the present Context would be an appointment made under the Rules and not de hors the same so as to make it irregular. The appointment on ad hoc basis is also under the Rules and under a regular procedure prescribed under the Rules. Not only this, such an appointment has the approval of the competent authority as indicated hereinabove and acknowledged by the respondents. Therefore, it would not be appropriate to equate the word "regular" with the word "substantive". In Rule 14 referred to hereinabove, the legislature has very consciously used the words regular and not substantive. The continuity in service for the purpose of coming within the zone of consideration in services acquired under a regular procedure prescribed in law and is not necessarily to be construed on substantive basis. However, the candidate should be occupying the post in the feeder cadre on substantive basis on the date when he is to be considered for promotion.

The suggestion of the learned Standing Counsel that in effect the phrase continuous regular service means substantive cannot be accepted. His further argument to the effect that the words suggest surplus age also cannot be countenanced as unless and until it can be shown that the words were used loosely, the legislature cannot be termed to have acted in its wisdom for having used words, which it intended to mean otherwise. Surplus age cannot be inferred when the phrase is emphatic and is not hedged by any confusion. At least the Court in such a situation cannot interpret otherwise.

The other reason to conclude in the manner aforesaid is that the process of Regularization take; a long time and is usually determined after a long passage of time making it almost uncertain. This procedure, therefore, will be presumed to be in the knowledge of the Rule framing authority, which has deliberately not used the words substantive in Rule 14 in such circumstances. Regularization of the services of the petitioner does not make his earlier services irregular. The ad hoc tenure attains the status of a substantive tenure which process is termed as Regularization. Regularization means in simple language to put in order and to bring about in accordance with Rules. An appointment, which is ad hoc, is made in accordance with Rules of substantive appointment, so as to enable a candidate to joint the main stream cadre for the purposes of viability what is required is continuity in service. The services of the petitioner continued uninterrupted even on ad hoc basis and where subsequently regularized.

The words are "continuous regular service". As already explained hereinabove, the petitioner fulfils the aforesaid condition and, therefore, the impugned order is erroneous in law and is liable to be set aside. The order dated 7.8.2004 is quashed. This Court is supported in its view by the decision in the case of Committee of Management v. Director of Education and others, Civil Misc. Writ Petition No. 22391 of 1999, decided on 27.8.1999 : (2001) 1 UPLBEC 46 (para 11).

Accordingly, the writ petition is allowed. The order dated 7.8.2004 is quashed with a direction to the Joint Director of Education to consider the case of the petitioner and pass appropriate order in the light of observations made hereinabove as expeditiously as possible preferably within a period of 6 weeks from the date of presentation of a certified copy of this order before him.