JUDGMENT N.K. Mitra, C.J.
1. The question that surfaces for consideration in this appeal is as to what are the parameters of adjudging a teacher as 'unfit' for the purposes of ad hoc promotion under Section 18 of the U. P. Secondary Education Service Commission and Selection Boards Act. 1982.
2. Matrix of the facts beyond the pale of controversy is that one Sri Raghubans Singh, a permanent lecturer in Acharya Ram Chandra Shukla Inter College. Saron, district Deoria, retired from service on 30th June, 1996. The appellant and respondent Shambhu Nath Rao, the two permanent teaches in L.T- grade staked their respective claims for ad hoc promotion in place of Sri Raghubans Singh. it would appear that the matter suffered procrastination inasmuch as neither the Committee of Management of the institution nor the District Inspector of Schools took any decision in the matter and, therefore, the appellant herein knocked the door of this Court by means of Civil Misc. Writ Petition No. 37699 of 1996 which came to be disposed of by means of the judgment and order dated 30.11.1996 post-fixed with a direction to the District Inspector of Schools to decide the representation stated to have been filed by the appellant. It was made clear that appointment, if any, made in the meantime would abide by the decision of the District Inspector of Schools that might be taken on the representation preferred by the appellant. Thereafter, the District Inspector of Schools by his order dated May 12, 1997 held that the appellant being senior to respondent Shambhu Nath Rao would have precedence over the latter to be given ad hoc promotion on the post of lecturer (History) which fell vacant by reason of the retirement of Raghubans Singh. The Committee of Management was accordingly directed by the District Inspector of Schools to convene a meeting, pass a resolution for promotion of the appellant and submit the papers to his office within 15 days for further action in the matter. The said order was challenged by the respondent Shambhu Nath Rao in the writ petition from which stems the present Special Appeal. Accordingly, the learned single Judge held the view that the instances as given in the relevant rule as to when a teacher shall be deemed to be 'unfit' fall short of being exhaustive and that the discussion made by the District Inspector of Schools were not compatible with the law and the relevant facts were not taken into reckoning by the District Inspector of Schools. The learned single Judge allowed the writ petition, quashed the order dated 12.5.1997 and relegated the matter to the District Inspector of Schools for decision afresh in accordance with law after reckoning into consideration the service records of both the contesting parties and giving them opportunity of being heard.
3. We have heard Sri R. N. Singh, Senior Advocate, assisted by Sri A. P. Sahi for the appellant. The standing counsel for respondent No. 1 and Sri H, N. Srivastava for the respondent No. 4.
4. In order to get at the crux of the controversy involved in the case, it would be apposite to turn on the related provisions contained in the U. P. Secondary Education Services and Selection Boards Act. 1982 [hereinafter referred to as the 'Act'). Prior to enforcement of the Act, the appointments of teachers including Principal were governed by the provisions contained in the U. P. Intermediate Education Act, 1921. Section 16 of the Act has an overriding effect. Sub-section (1) of Section 16 as it stands amended upto date, provides that notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made therein but subject to the provisions of Section 18. 21B, 21C, 21D. 33, 33A. 33B. 33C and 33D, every appointment of a teacher shall on or after the date of commencement of the Uttar Pradesh Secondary Education Services Selection Boards (Amendment) Act, 1995 made by the Management only on the recommendation by the Board. Sub-section (2) of Section 16 clearly envisages that every appointment of a teacher in antagonism of the provisions of sub-section (1) shall operate in void. Section 18 which provides for ad hoc appointment is one of the exceptional fields where appointment can be made otherwise than on recommendations of the Board, Section 18, as it, originally stood, authorised the Management to make ad hoc appointment by direct recruitment or promotion, in case the Commission (now replaced by Board) failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of intimation of the vacancy to the Commission or where the post of such a teacher has actually remained vacant for more than two months. Section 18 has since undergone amendment by U. P. Act 24 of 1992, U. P. Act 1 of 1993 and U. P. Ordinance No. 3 of 1998. The amended section in so far as it is relevant is excepted below :
"18. Ad hoc teachers.--(1) Where the Management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher purely on ad hoc basis in the manner hereinafter provided in this section.
(2) .....
(3) A teacher other than the Principal or Head-master to be appointed by promotion may. In the prescribed manner, be appointed by promoting the senior-most teacher possessing prescribed qualification :
(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in the lecturer's grade ;
(b) in the Certificate of Teaching grade, as teacher in the trained graduate's grade, in the case of a vacancy in the trained graduate's grade."
It is evident from sub-section (3) of Section 18 that ad hoc appointment by promotion has to be made "in the prescribed manner". Section 18, as it originally stood, was completely silent as to the manner and procedure of ad hoc appointment whether by way of direct recruitment or by promotion. A Full Bench of this Court in the case of Radha Raizada, 1994 (3) UPLBEC 1551, held that the procedure for ad hoc appointment to be made under Section 18 would be the same as laid down in U. P. Secondary Education Service Commission (Removal of Difficulties) Order. 1981. The Legislature, however, intervened by means of Notification No. 3440/15/72 (6) 1992, dated 16.7.1992 published in U. P. Gazette Part I Ka dated 4th September, 1993 and added Rules 9A and 9B in the U. P. Education Service Commission Rules, 1983 providing thereby the procedure/manner for ad hoc appointment by direct recruitment and by promotion. In view of the notification aforestated, Radha Raizada has now lost its relevance in so far as ad hoc appointment of a teacher under Section 18 is concerned.
5. The U. P. Secondary Education Services Selection Board Rules, 1995 have superseded the rules aforestated and Rule 16 of the said Rules which prescribes the manner of ad hoc promotion to be made under Section 18 of the Act. being relevant is quoted below ;
"16. Procedure for ad hoc appointment promotion.--(1) Where ad hoc appointments of teachers, in respect of the vacancies to be filled in by promotion are to be made under Section 18 of the Act, the Management shall consider the cases of such teachers who are working in trained graduates (L.T.) or Certificate of Teaching (C.T) grades and possess the qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder and have put in at least five years' continuous service as such on the date of occurrence of vacancy, for promotion to the lecturers or trained graduates (L.T.) grade, as the case may be, on the basis of seniority subject to rejection of unfit without their having applied for the same.
Explanation.--For the purpose of the sub-rule-
(a) service rendered in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post ;
(b) a teacher shall be deemed to be unfit if :
(i) any criminal case Involving moral turpitude is pending enquiry or trial against him ; or
(ii) any disciplinary proceeding is being conducted against him.
(2) The Management shall forward the name of the selected teacher along with the copy of seniority list and his service record including character roll to the Inspector for approval.
(3) The Inspector shall, within ten days from the date of receipt of names under sub-rule (2) send the names of approved teachers to the management of the concerned institution and the provisions of sub-rules (6) and (7) of Rule 15 shall mutatis mutandis apply.
6. It is explicitly clear from the language used in Rule 16 of the U. P. Secondary Education Services Selection Board Rules, 1995 (in short the Rules) that the criterion for ad hoc appointment of teachers irrespective of vacancies to be filled in by promotion under Section 18 of the Act is "seniority subject to rejection of unfit". The thrust of the submissions made by Shri R. N. Singh is that regard being had to clause (b) of the Explanation appended to the Rule aforestated, there is no scope of comparative assessment of merit of rival claimants for promotion under Section 18 of the Act in that the senior most qualified and eligible teacher is entitled to be given ad hoc promotion except where such teacher suffers from any of the disabilities referred to in clause (b) of the Explanation appended to Rule 16. Shri H. M. Srivastava, on the other hand, urged that "unfitness" of a teacher as explained in clause (b) of the Explanation appended to Rule 16 is not exhaustive and a teacher may be held to be "unfit" for promotion depending upon his performance as a teacher. Learned counsel submitted that while adjudging the fitness of a person for the purposes of ad hoc promotion, the academic and job performance of rival claimants must be taken into account.
7. We have given our anxious consideration to the submissions made across the Bar. The criterion of promotion is "seniority subject to rejection of unfit". The word "unfit" has not been defined to 'mean' some thing or 'include' some thing but the Legislature in its wisdom has indicated the conditions under which a teacher shall be 'deemed' to be "unfit" for promotion on the basis of seniority alone. The words "deemed", and "if" used in the Explanation are significant in that they lay down the parameters within which a teacher may be adjudged as "unfit" for the purposes of ad hoc promotion under Section 18 of the Act read with Rule 16 of the Rules. The word "deemed" is normally used to create a legal fiction and the word 'if when used as conjunction, as in clause lb) of the Explanation, means--"in cases, in the event that, on condition that". In our opinion. Clause (b) of the Explanation to Rule 16 means that a teacher shall be deemed to be 'unfit' only in the event that any of the conditions referred to therein is satisfied. It would make no difference that the Legislature has used the word "if as distinguished from the words "only if". The rules are subservient to the Act, which by Section 18 (3) provides for promotion of the "senior most teacher".
8. In C.I.T.. Bombay v. Bombay Corporation. AIR 1930 PC 54. a legal fiction was created by the Indian Income-tax Act, 1922 which by Section 43 provided that under certain circumstances, an agent would for all he purposes of the said Act be deemed to be such agent of a non resident person and which by Section 42 further provided that such agent "shall be deemed to be, for all the purposes of this Act, the assessee", the Privy Council held that such agent was an assessee for all the purposes of the said Act and hence, chargeable to income tax, assessee being defined by Section 2 (2) as the person by whom income tax is payable. Viscount Dunedin in that connection observed that : "Now when a person is 'deemed to be' something, the only meaning possible is that whereas he is not in reality that something, the Act of Parliament requires him to be treated as if he were."
9. it is well settled principle of criminal jurisprudence that a person is to be presumed innocent unless proved guilty. The Legislature in the instant case has by creating a fiction provided that a teacher shall be deemed to be "unfit" if any criminal case involving moral turpitude is pending enquiry or trial against him : or any disciplinary proceeding is being conducted against him. The language used in clause (b) of the Explanation appended to Rule 16 clearly suggests that it is the conduct related 'unfitness' that renders a senior teacher to be passed over by a junior one and not his performance related 'unfitness'. The words 'subject to' occurring in the expression "on the basis of seniority subject to rejection of unfit" only mean that right of the senior most qualified and eligible teacher to be given ad hoc promotion under Section 18 (3) of the Act in respect of vacancies to be filled in by promotion is conditional upon his being not "unfit", i.e.. he would be given ad hoc promotion provided that he does not suffer from any of the disqualifications or demerits referred to in clause (b) of the Explanation appended to the Rule. In our considered view, it is the disqualifications/demerits referred to in sub-clauses (i) and (ii) of clause (b) of the Explanation which render a teacher to be unfit for being given ad hoc promotion under Section 18 (3) of the Act and the provisions of Rule 16 exclude comparative assessment of merits of the eligible and qualified teachers in order to determine, unfitness in that Section 18 (3) clearly provides for appointment of a teacher other than the Principal or Head master ; "by promoting the senior most teacher possessing prescribed qualifications".
10. In M. R. Melhotra v. State. AIR 1958 All 492, a Division Bench of this Court was called upon to construe the word 'deemed' occurring in Section 8 of the Criminal Law Amendment Act, 1952 which provided that for certain purposes, specified therein, "the Court of the special Judge shall be deemed to be a Court of Sessions". A. N. Mulla, J., wrote the leading judgment with whom V. Bhargava. J., (as he then was) agreed although he wrote a separate judgment. Construing the term "shall be deemed" occurring in Section 8, A. N. Mulla. J., held as under :
"The phrase 'shall be deemed' is frequently used in statutes when the Legislature wants to confer a status or an attribute to a person or thing which is not intrinsically possessed by that person or thing on whom this conferment is made."
And further :
"The true synonym for the word 'deemed' is 'judged' and the other shades of meaning came later. Even today the Judges in the Isles of Man and Jersey are called 'Deemsters'. Whenever the word 'deemed' is used in statute in relation to a person or thing, it implies that the Legislature after due consideration exercised its judgment in conferring that status or attribute to a person or thing."
In De Beauvoir v. Welch, (1827) 108 ER 722 at p. 727. (E) Littledale, J.. observed :
"The word deemed imports also that a judgment to be exercised."
Relying on the aforesaid observation, A. N. Mulla, J.. In the case of M. R. Melhotra (supra) observed as under :
"In the context of this subsection the word 'deemed' imports that a judgment has been exercised. The question, therefore, arises whether it is open to a Court to sit in judgment over the judgment of the Legislature and ignore the express direction contained in the statute on the, ground that the person on whom a status is conferred by statutory fiction is not the real person and so it can refuse to recognise him as such a person. In my opinion this approach is not open to a Court. The important thing is not the meaning of the word 'deemed' but the effect of its use in the statute. In the Law Lexicon of British India by P. Ramanatha Aiyar (1940) under the words 'deemed to be' the following extract appears :
"In Leonard v. Grant, 5 Fed 11 at p. 16 (F), it is said : Whatever an Act requires to be 'deemed' or 'taken' as true of any person or thing, must in law, be considered as having been duly adjudged or established concerning such person or thing and have force and effect accordingly."
And thereafter the learned Judge quoted the observation of Viscount Dunedin referred to hereinabove as made in Commissioner of Income Tax. Bombay v. Bombay Trust Corporation Ltd., AIR 1930 PC 54 at p. 55 (G) and held :
"It, therefore, cannot be doubted that when the Legislature directed that the Court of the Special Judge shall be deemed to be a Court of Session, the Courts of law had no option but to follow the direction of the statute and to regard the Court of the Special Judge as a Court of Session irrespective of the fact whether he was in essence a Sessions Judge or not."
11. It may be borne in mind that the criterion of ad hoc promotion is "seniority subject to rejection of unfit" and not "merit-cum-seniority" nor even "seniority-cum-merit" or "seniority-cum-efficiency". In B. V. Sivaiah and others v. K. Addanki Babu and others, (1998) 6 SCC 720, the distinction between the twin principles of "merit-curn-seniority" and "seniority-cum-merit" has been explained by the Apex Court and it has been held that the principle of "merit-cum-seniority" lays greater emphasis on ability and seniority plays a less significant role. According to this principle, seniority is to be given weight only when merit and ability are approximately equal. But the criterion of "seniorify-cum-merit" lays greater emphasis on seniority. In State of Mysore v. Syed Mahmood, AIR 1968 SC 1113, while considering the Rule 4 (3) (b) of the Mysore State Civil Services General Recruitment Rules. 1957 which required promotion to be made by selection on the basis of "seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion", it was held therein that where the promotion is based on "seniority-cum-merit", the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. As pointed out hereinabove, the criterion in the instant case is seniority subject to rejection of unfit. The word "unfit" unlike the word "merit" has a negative formulation. The principle of "seniority-cum-mertt" or "seniority-cum-efficiency", does envisage a comparative assessment of merit whereas the principle "seniority subject to rejection of unfit" in the context of clause (b) of the Explanation to Rule 16, does not visualise comparative assessment of the merits and performance of qualified and eligible teachers in that rejection of a senior teacher is to be based on his conduct related to disqualification visualised by clause (b) of the Explanation appended to Rule 16 of the Rules.
12. In B. V. Sivaiah (supra), the Supreme Court has held that "criterion of "seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made'. It was further held in that case that for assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. It would be seen from Rule 16 of the Rules that it does not lay down any standard of judging the minimum merit apart from prescribing the standard of judging unfitness. In other words, the merit of a teacher for the purposes of promotion under Rule 16 is that no criminal case involving moral turpitude is pending enquiry or trial against him ; and/or no disciplinary proceeding is being conducted against him. Absence of the disabilities referred to in clause (b) of the Explanation to Rule 16 of the rules, in our opinion, would be taken to be merit for the purpose of giving ad hoc promotion on the basis of "seniority subject to rejection of unfit". Accordingly, keeping in view the distinction, albeit very thin, between the principles of "seniority-cum-merit" and "seniority subject to rejection of unfit", we are of the considered view that for the purposes of ad hoc promotion in Section 18 of the Act read with Rule 16 of the Rules, seniority wilt prevail except where the senior teacher suffers from any of the demerits referred to in clause (b) of the Explanation appended to Rule 16. In so far as assessment of job performance is concerned, the same is not comprehended under Rule 16 of the Rules and since ad hoc promotion under Section 18 is required to be made in the manner prescribed in the Rules aforestated, it would not be permissible to cull out any other criterion of ad hoc promotion. On the admitted facts, the order passed by the District Inspector of Schools. In our opinion, did not suffer from any infirmity and the learned single Judge was not right in remitting the matter to the District Inspector of Schools with a direction to re-examine the matter on the basis of comparative assessment of the merits of the rival claimants.
13. Accordingly, the appeal succeeds and is allowed. The impugned Judgment of the learned single Judge is set aside. Parties are directed to bear their own costs.