JUDGMENT Sudhir Narain, J.
1. The petitioner seeks writ of rnandamus commanding the respondents to regularise the services of the petitioner on the post of Principal of Bundelkhand Inter College, Veer Nagar, Madho Garh, Jalaun (hereinafter referred to as the institution) and further to declare the provisions of Section 33C (6) of U. P. Secondary Education Services and Selection Board Act, 1982 (in short the Act) as ultra vires and unconstitutional.
2. Briefly stated the facts are that one Pratap Singh Chandel was Principal of the institution. He retired on 30.6.1992 on attaining the age of superannuation and as the petitioner was senior most teacher in the institution, he was promoted on ad hoc basis as provided in the proviso to Regulation 2 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921. His ad hoc promotion was approved by the District Inspector of Schools on 17-4.1993.
3. The Committee of Management notified the vacancy of the post of Principal to the U.P.
Secondary Education Services Commission (in short the Commission). The Commission advertised the post in the newspapers on 13.12.1995. Respondent No. 6, Anil Kumar Singh, applied for the said post. He was declared successful on 30.8.1996 and his name was recommended by the Commission.
The District Inspector of Schools, Jalaun, respondent No. 4, issued a letter dated 12.9.1996 directing the Manager of the institution for appointing respondent No. 6 as Principal of the institution. The Committee of Management passed a resolution on 15.9.1996 for issuing appointment letter to respondent No. 6 to the post of Principal of the institution. He, on receiving the letter, joined the institution on the post of Principal on 16.9.1996.
4. The petitioner filed Writ Petition No. 30855 of 1996 against the selection of respondent No. 6. This Court passed an interim order on 25.9.1996 whereby the petitioner was permitted to continue as ad hoc Principal of the institution in question till further orders. The District Inspector of Schools wrote a letter to the Manager of the Institution to permit the petitioner to work in the institution on the post of Principal in pursuance of the interim order passed by this Court on 25th September. 1996. The Deputy Manager of the Committee of Management of the Institution wrote a letter dated 14.10.1996 to the District Inspector of Schools that respondent No. 6 having already joined the institution, the petitioner cannot be permitted to join. Respondent No. 4 again wrote a letter to the Manager on 8.11.1996 asking the Manager to permit the petitioner to join the institution to avoid any complication. The Manager of the institution sent a letter dated 30.6.1998 to respondent No. & to hand over the charge of the post of Principal to the petitioner. Respondent No. 6 has filed Writ Petition No. 22855 of 1998 against that order,
5. During the pendency of the Writ Petition No. 30855 of 1996 U. P. Secondary Education Service Commission (Amendment) Ordinance, 1998 (U. P. Ordinance No. 3 of 1998] came into force with effect from 20th April, 1998. By clause 10 of this Ordinance, Section 33C was inserted in U.P. Secondary Education Services Commission and Selection Board Act, 1982. Sub section (1) (a) (i) of Section 33C provided that any teacher who was appointed by promotion or by direct recruitment on or after May 14. 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade, and clause (ii) provided that if he was appointed on promotion on or after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of a Principal or Headmaster in accordance with Section 18, shall be given substantive appointment by the Management. Sub-section (6) of Section 33C, however, made an exception that nothing in this section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Ordinance referred to in clause (c) of sub-section (1), such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act. Subsections (1) and (6) of Section 33C are reproduced hereunder :
"33C. Regularisation of certain more appointments.--
(1) Any teacher who,--
(a) (i) was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade :
(ii) was appointed by promotion on or after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of a Principal or Headmaster in accordance with Section 18;
(b) possesses the qualifications prescribed under, or exempted from such qualifications in accordance with the provisions of the Intermediate Education Act. 1921 ;
(c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Ordinance, 1998 ;
(d) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under subsection (2) ;
shall be given substantive appointment by the Management.
* * * * * (6) Nothing in this section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Ordinance referred to in clause (c) of subsection (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act."
6. Sri V. K. Shukla, learned counsel for the petitioner, has challenged the vires of sub-section (6) of Section 33C of the Act (as amended) on the ground that a teacher so having been appointed or promoted on ad hoc basis prior to August 6, 1993, have been given substantive appointment or in other words, their services have been regularised but this benefit has not been given to such teachers where the Commission had selected any candidate. The act of the selection by the Commission will not deprive a teacher who has already been promoted on ad hoc basis and is entitled to be regularised under subsection (1) of Section 33C of the Act.
7. Clause (c) sub-section (1) of Section 33C of the Act itself provides that a teacher promoted on ad hoc basis prior to August 6, 1993 has been continuously serving the institution from the date of such appointment up to commencement of U. P. Secondary Education Services Commission, (Amendment) Ordinance. 1998 shall be given substantive appointment by the Management. Respondent No. 6 was selected by the Commission and on 12.9.1996 the District Inspector of Schools had Issued direction to the Management to appoint him on the post of Principal. He already joined the institution on 16th September. 1996. The petitioner filed Writ Petition No. 30855 of 1996 challenging his selection. He was permitted to continue in pursuance of the interim order passed by this Court on 25.9.1996 and it was on 30.6.1998 the Manager of the institution asked respondent No, 6 to hand over the charge to the petitioner. The said writ petition filed by the petitioner has been dismissed. The petitioner, even if worked under the orders of the Court, cannot be treated to have been continued regularly as contemplated under Section 33C (1) (c) of the Act.
8. Sub-section (6) of Section 33C of the Act, in fact, saves the rights of a candidate who has been duly selected by the Commission or vacancy has been filled in by appointment of such candidate. A person who is duly selected, gets a right to be appointed to the post on which he is selected unless there is any rule or law which prohibits such appointment. In Anti Devi Kanti and others u. Karnataka Public Service Commission and others, 1990 (3) UPLBEC 1955, wherein the subsequent order of the Government made changes in regard to reservation of backward and scheduled tribes, the Supreme Court held that the subsequent order will not effect the selection already made.
The candidates who apply and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in advertisement unless the advertisement itself indicates a contrary intention.
9. The petitioner, before he seeks regularisation on the post of Principal on which he was appointed on ad hoc basis under Section 33C (1) of U. P. Secondary Education Services Commission and Selection Board Act, 1982, has to satisfy that he complies with all the conditions mentioned therein. One of the conditions in clause (c) of sub-section (1) of Section 33C is that the teacher has been continuously serving the institution from the date of appointment up to the date of commencement of U.P. Secondary Education Services Commission (Amendment) Ordinance. 1998. This Ordinance came into effect on 20.4.1998. The District Inspector of Schools on 12.9.1996 had directed the Committee of Management of the institution to issue appointment letter to respondent No. 6 and in pursuance of the said direction the Committee of Management issued appointment letter to him on 15.9.1996 and thereafter he joined on 16.9.1996. He continued to work till he was relieved on 30.6.1998 because the letter was issued by the Management to hand over the charge to the petitioner. The petitioner was not working on 20.4.1998.
10. Even assuming the petitioner having obtained interim stay order on 25.9.1996 in Writ Petition No. 30855 of 1996 filed by him challenging the selection of respondent No. 6 and the said writ petition having been dismissed, the petitioner cannot claim any benefit on the basis of interim stay order granted in the said writ petition of continuing in service for the purpose of regulatisation under Section 33C of the Act. In Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur and another v. Shree Kumar Tiwary and another, (1997) 2 UPLBEC 1133, the Hon'ble Supreme Court held that the benefit of regularisation under Section 33B (1) of U. P. Secondary Education Services Commission Act, 1982 was not available on the strength of stay order granted by the High Court in the writ petition in favour of the petitioner. A teacher, who continues in service on the basis of the interim stay order granted by the High Court, cannot be treated as has been continuously serving the institution entitling him to avail all the benefits of the third Removal of Difficulties Order. The continuance in service must be in his own right. Had the petitioner not obtained stay order, respondent No. 6 was entitled to continue in service. The petitioner had filed the writ petition challenging the selection. The writ petition has been dismissed in view of the decision given by the Division Bench in Balak Singh Kushwaha v. State of U.P. and others, 1998 (3) ESC 1970,
11. The next submission of the learned counsel for the petitioner is that the selection proceedings were initiated for six regions out of seventeen regions and in those regions where the selection did not take place, the rights of ad hoc Principals were not affected and they stood regularised but where selection took place and candidates were selected, the rights of ad hoc Principals were affected resulting in two different classes of ad hoc Principals and that creates unreasonable discrimination. The mere fact that in some regions the selection has not taken place does not carve out distinct class itself. It is a matter of procedure which is adopted for the purpose of selection by the appropriate authorities. In case the selection is held, it is the right of the selected candidate to claim for appointment. The provision of Section 33C of the Act is not hit by Article 14 of the Constitution.
12. As regards the post in question, the petitioner had also applied for appointment along with Respondent No. 6. The Selection Committee had considered the suitability and merits of all the candidates but the petitioner was not selected. He, in these circumstances, cannot claim that there was any discrimination as against him.
13. There is no merit in the writ petition. It is accordingly dismissed.