JUDGMENT S.U. Khan, J.
1. First writ petition has been filed by Dr. Brij Lata and Smt. Gargi. Second writ petition has been filed by Kumari Poornima Rajvanshi, third writ petition has been filed by all the three lady teachers.
2. In the first writ petition stay order was passed on 8.8.1986 "till further orders of the Court the services of the petitioners shall not be deemed to have come to an end only because 30th June, 1986 has intervened they shall continue" and in the second petition on 23.8.1986 "till further orders of the Court services of the petitioner shall not be deemed to have come to an end only because 30th June, 1986 has intervened she shall continue". By virtue of the aforesaid stay orders which are still continuing all the three aforesaid lady teachers claim to be working in institution in question.
3. The main question to be decided in these writ petitions is as to whether services of the petitioners should be dispensed with on the basis of the law laid down by the Full Bench of this Court in Radha Raizada, 1994 VPLBEC 1551, after more than 17 years or they must be spared of this ordeal on equitable grounds due to continuance in service, by virtue of interim order of this Court which was perfectly in accordance with the view of this Court taken in several authorities which were good law at that time but overruled in the year 1994 by Full Bench authority of Radha Raizada (supra). Prior to the Full Bench authority of this Court of Radha Raizada (supra), the view of this Court was that Section 18 and first removal of difficulty order of U. P. Secondary Education Service Commission Act (Commission Act in short), two different modes of ad hoc appointment of teachers in recognised High Schools and Intermediate colleges were provided and that Section 18 of the Commission Act was de hors the first removal of difficulty orders. According to the said view, management after intimating a substantive vacancy to commission and on the failure of the commission to recommend the name of duly selected teacher was entitled and authorised to select on its own without intervention of D.I.O.S. a teacher on the said substantive vacancy on ad hoc basis and that such appointment was to remain in operation until a duly selected candidate from the commission joined. In Adarsh Kanya Inter College Garh Mukteshwar, District Ghaziabad (as it was at the relevant time) (hereinafter referred to as the College) all the three petitioners were granted ad hoc appointment as Lecturers by the Committee of Management of the college on 10.8.1984/25.6.1985, 25.6.1985 and 10.8.1984/ 26.6.1985 respectively. R.I.G.S. approved the appointment of all the three petitioners by orders dated 15.11.1984 ; 3.2.1986 and 13.2.1986. However, in the latter two orders it was directed that appointment should remain valid only until 30.6.1986.
4. It is stated in para 26 of the third writ petition that in May, 1995 advertisement was published by the commission inviting application for making regular selection/appointment against several posts of Lecturers including the post held by the petitioner. Through the said writ petition prayer was made for quashing the said advertisement and for other reliefs. This Court by order dated 20.2.1996 passed the following interim order "In the meanwhile the process of selection for appointment on the posts in question shall go on and appoint (sick) will also be made but the same shall not be given effect to and shall be subject to the result of this petition". There is no material in the file, which may suggest that any person was selected or appointed on the posts held by the petitioners. Through amendment in the earlier two writ petitions which was allowed it was prayed that respondents be commanded to consider the case of the petitioners for regularisation under Section 33A of the Commission Act and for granting selection grade. Through amendment it has been stated that the Committee of Management resolved to grant selection grade to the petitioners which was approved by D.I.O.S. and Accounts Officer and petitioners were given selection grade, however, D.I.O.S. by order dated 26.7.2002 directed that excess amount paid to the petitioner shall be recovered from them, in view of the fact that petitioners were continuing in service on the basis of interim order passed by High Court and their service had not been regularised. The said order has also been sought to be quashed.
5. In none of the aforesaid writ petitions counter-affidavit has been filed by the State authorities. In one of the writ petitions, i.e., Writ Petition No. 12380 of 1986 Principal filed counter-affidavit in August September, 1986 (sworn on 23.8.1986) stating therein that petitioners were not working and that stay order having been passed after petitioners ceased to be employees of the institution did not have the effect of reviving their services. In the rejoinder-affidavit the said assertion is denied. In February, 1987 application for payment of salary in the first two writ petitions was filed stating in the affidavit filed in support thereof that even though petitioners were working under interim order, however, they were not paid their salary.
6. Supplementary affidavit by the Principal (second supplementary-affidavit) was also filed in April, 1987 reiterating same facts which were stated in the earlier counter-affidavit and further asserting that in view of stay order, letters were issued by the Principal to the teachers to join but they did not join. There is nothing on the record in any of the writ petitions to show that from which date petitioners started getting salary under U. P. Payment of Salaries Act, 1971. Through amendment in the year 2002 which has been allowed on 25.11.2002, paras 5 to 14 of the affidavit filed in support of amendment application have been added as paras 13 to 22 of the writ petition. In para 5 of the aforesaid affidavit it has been stated, "petitioners are being paid their salary regularly". After the aforesaid two counter-affidavits, there is no affidavit of the Principal showing the state of affair with regard to joining of the petitioner and payment of salary to them. In para 8 of the affidavit filed in support of amendment application it has been stated that Committee of Management through its resolution dated 7.3.1998 recommended that as the petitioners had been in service for more than ten years hence, they were entitled for selection grade, A resolution to that effect was sent to the D.I.O.S. through letter dated 16.3.1998 by Committee of Management which according to para 9 of the said affidavit was approved by D.I.O.S and petitioners were given selection grade which was stopped by order of D.I.O.S. dated 26.7.2002 and through the said order recovery of excess amount paid to the petitioner with effect from 1.1.1996 was directed to be recovered. In the order dated 26.7.2002, D.I.O.S. has observed that petitioners are working by virtue of stay orders of the High Court.
7. From the above facts, it appears that if not Immediately after passing of the interim order then at least since after sometime from the said date petitioners are working and getting salary under U. P. Payment of Salaries Act, 1971.
8. It cannot be denied that petitioner's appointment was not in accordance with first removal of difficulties order framed under U. P. Secondary Education Service Commission Act (hereinafter referred to as the Commission). None of the procedure prescribed under the said order was followed. As held in Full Bench authority of this Court in Radha Raizada v. Committee of Management, 1994 UPLBEC 1551, management could make ad hoc appointment under Section 18 of the Commission Act (as it stood at the relevant time) only after their selection in accordance with first removal of difficulties order and under Section 18 of the Act, management had no power to select and appoint ad hoc teachers de hors first removal of difficulties order. However, it is also correct that prior to the said Full Bench authority, there were several decisions of this Court holding otherwise, i.e., recognizing power of Committee of Management under Section 18 of the Act to independently select and appoint ad hoc teachers. It was in view of such authorities that stay orders were granted to the petitioners in the first two writ petitions and by virtue of those stay orders which were perfectly in accordance with the view of this Court expressed in several authorities at that time, petitioners are working and getting salary under U. P. Payment of Salaries Act, 1971 for more than ten years. It is true that judgment of the Court does not lay down the law; it only interprets the law, which is always retrospective unless expressly made prospective. The net result, therefore, is that initial appointments of the petitioners were in accordance with law and protected by interim orders but became invalid since inception, by virtue of the aforesaid Full Bench authority of Radha Raizada. It is unfortunate that even after the decision of Radha Raizada, petitions could not be heard for about nine years. The appointment cannot be termed as fraudulent, arbitrary or completely against the rules when made as per the view of this Court prevalent at the relevant time.
9. In my view, it is a fit case in which equitable consideration must prevail upon strict legalities. It has been held in AIR 1991 SC 295 (also referred to in AIR 2001 SC 102) that even though appointments were not proper however, appointees were entitled to be treated a regularly appointment on humanitarian ground.
In para 12 of the said Judgment it has been held "having reached the conclusion about the invalidity of the impugned appointments made by the Chief Justice, we cannot, however, refuse to recognise the consequence that involves on uprooting the appellants." Para 13 of the said authority is quoted below ;
"There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or post graduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now overaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty of this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection. See Lila Dhar v. State of Rajasthan, (1982) 2 SCR 320 at 326 : AIR 1981 SC 1777 at p. 1780,"
10. In view of the above, I hold that the petitioners are entitled to be considered for regularisation and consequential benefits, if regularised, in accordance with the relevant provisions of Commission Act, as amended from time to time. Salary already deducted in pursuance of order of D.I.O.S.. dated 26.7.2002, shall not be refundable to the petitioners. Appropriate orders with regard to regularisation by competent authority/body must be passed within six months from the production of certified copy of this order.
11. Accordingly writ petitions is allowed as aforesaid.