JUDGMENT N.K. Mitra, C.J. and S.R. Singh, J.
1. Present Special Appeal arises out of the Judgment and order dated 25.9.1998 by which the learned single Judge has dismissed the Civil Misc. Writ Petition No. 24348 of 1995, preferred by the petitioner-appellant against the order contained in the letter dated 6.5.1994 of the Regional Inspectress of Girls Schools in which a reference was made to the Additional Director of Education. Secondary U. P. Allahabad for appropriate action under Section 16E (10) of the U. P. Intermediate Education Act. 1921 (in short 'the Act') in respect of initial appointment by promotion of the appellant herein in C.T. grade as well as her subsequent promotion in L.T. grade and till then, the approval to the appellant's promotion to the post of Lecturer (Urdu) has been put on hold by the Regional Inspectress of Girls Schools by the self-same order.
2. We have heard Sri P. C. Srivastava, for the appellant, standing counsel for respondent Nos. 1 to 3 and Sri Ashok Khare for respondent No. 5.
3. The facts shorn of unnecessary details are that the appellant was appointed Assistant Teacher in the J.T.C. grade in Abdul Salam Girls Inter College, Moradabad, sometime in the year 1970. In the course of time, she was promoted to the C.T. grade and later, to the L.T. grade in the year. 1976. A vacancy in the post of Lecturer (Urdu) was occasioned by the retirement of the incumbent-Begum Jahan on 30.2.1993. The appellant who, according to the seniority-11st, already published being the senior-most teacher in the L.T. grade, was promoted to the post of Lecturer in Urdu and the relevant papers were sent to the Regional Inspectress of Girls School on 24.11.1993 for approval qua the requirements of Regulation 6 (5) of Chapter 2 of the Regulations made under the Act. The 5th respondent who also happens to be the Assistant Teacher in L.T. grade, preferred a representation staking her claim for promotion, inter alia, on the premises that she happened to be the senior-most teacher in L.T. grade and that the initial appointment by promotion of the appellant in C.T. grade and later, in the L.T. grade was invalid and she was not qualified for being promoted to the post of lecturer. The Regional Inspectress of Girls Schools, it seems, issued notice to the parties to appear before her. On behalf of the college, service books, salary register, papers regarding pay fixation and other papers, were produced before the Regional Inspectress of Girls Schools, but the authorised controller did not produce any material regarding appellant's pay-fixation for the period between 1.8.1973 and 1.11.1973 nor was any document produced showing approval to the appellant's promotion from J.T.C. to C.T. grade. The Regional Inspectress of Girls Schools came to the conclusion that there was no material vouching for pay fixation of the appellant in L.T. grade nor was there any material to be eloquent of the fact that the promotion of the appellant from J.T.C. to C.T. grade was approved by the then Regional Inspectress of Girls Schools, Bareilly nor was there anything to manifest that her pay was fixed in C.T. grade with effect from 1.7.1970. The Regional Inspectress of Girls Schools being of (he opinion that the services of the appellant in C.T. grade were not lent approval and that she had not passed L.T. or B.Ed. and. therefore, she was not qualified for the post of Assistant Teacher in L.T. grade. Upon a consideration; therefore, the Regional Inspectress of Girls Schools referred the matter to the Additional Director of Education under Section 16E (10) of the Act. The reference was sought to be quashed fn the writ petition. Sri P. C. Srivastava, learned counsel for the appellant canvassed that the appellant was appointed to C.T. grade before Section 16E was supplanted by Section 14 of the U. P. Act 26 of 1975 and the Amending Act was not made to have retroactive effect and, therefore, proceeded the submission, the proceedings under Section 16E (10) could not be invoked in aid to emasculate the appointment already made. The submission made by the learned counsel has no cutting edge, Section 16E (10) empowers the Director in the case of appointment of teacher in an institution to rescind such appointment and pass such consequential orders as may be necessary, on being satisfied that the appointment has been made in antagonism of the provisions of the Act. The provision being germane to the controversy is excerpted below :
"(10) Where the State Government, in cases of the appointment of Head of institution, and the Director in the case of appointment of teacher in an institution, is satisfied that any person has been appointed as Head of institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be, the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary."
4. In our considered view. Section 16E (10) being an enabling and remedial provision, can be invoked to call in question even the appointments made before insertion of the Section and in that sense, it has retroactive effect. To rephrase it, the operation of Section 16E (10) is not confined to appointments made after the said provision was inserted by substituting the old Section 16 E vide Section 14 of the Amending Act, This follows from the expressions "has been appointed" used in subsection (10) of Section 16E of the Act. As a matter of fact, the provision is in its direct operation prospective, for it relates to future cancellation of appointments already made and in this way, it will not be appropriated to be called a retrospective statute merely "because a part of the requisites for its action is drawn from time antecedent to its passing". We, therefore, find no substance in the submissions made by the learned counsel for the appellant that the Director of Education is not clothed with the power to cancel an appointment, made prior to U. P. Act 26 of 1975. We, however, hasten to add that the power must be exercised within a reasonable time or not at all as discussed hereinbelow.
5. The next question that begs consideration is whether the Regional Inspectress of Girls Schools was justified in making reference under Section 16E (10) of the Act to the Director of Education for cancellation of the initial appointment of the appellant by promotion to C.T. grade and later, to L.T. grade after a lapse of about 23 years. The counsel for the appellant propounded with vehemence that it would be unjust to allow the appointment to be cancelled after a lapse of nearly 23 years of the appointment of the appellant to L.T. grade. The submission made by the learned counsel is loaded with substance. In Smt. S. K. Chaudhary v. Manager. Committee of Management Vidyawati Darbari Girls Inter College. Lookerganj, Allahabad and others. 11991) 1 UPLBBC 250, the validity of appointment of a teacher was sought to be challenged after lapse of 17 years. The Full Bench held as under :
"One fails to understand that after a lapse of nearly 17 years the Regional Inspectress of Girls Schools referred the matter to the Director of Education for adjudicating the question as to whether the appointments were valid or not. The exercise of power by the Regional Inspectress of Girls Schools on the facts and circumstances of the case is wholly arbitrary as that poser could not be exercised after lapse of 17 years.....In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a longer period.....It is true that there is power under Section 16E (10) of the Act to cancel the appointments but that power has to be exercised wtthin a reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16E (10), on the facts and circumstances of the case, can be said to be exercise of a power within a reasonable time."
6. The Court is no-doubt conscious of the maxim "quod ab-initio non valet in tractu temporis non convalescit", which implies that which was originally void, does not, by lapse of time, become valid but rule contained in the said maxim is subject to certain exceptions and one such exception is illustrated by the maxim, quod fieri non debet factum valet, which means the fact cannot be altered though it should not have been done, R. v. Lord Newborough, 4 QB 585. will illustrate the doctrine of facfum valet. There, the question was as to the payment of salary to certain special constables whose appointments had not been made in accordance with the requirements of the Special Constable Act, 1831 nor was there any valid order for payment of their salaries. Relying upon the doctrine of quod fieri non debet facfum valet. Lush. J., who decided that, as the order for payment had been acted upon, the account allowed, and the money paid, the proceedings should not be reopened. The appointment of the appellant herein to C.T. grade and later, to L.T. grade by promotion having been in fact acted upon, it would not be just and proper to reopen the question of validity of her appointment by promotion to C.T. grade and later, to L.T. grade after a lapse of about 23 years. In our opinion, the order of the Regional Inspectress of Girls Schools referring the matter to the Director of Education under Section 16E (10) is thus liable to be quashed.
7. As regards the appellant's promotion in Lecturer grade. Sri P. C. Srivastava, submitted that the promotion of the appellant to the post of Lecturer (Urdu) would, in the fact situation of the case, be deemed to have been approved by virtue of Regulation 6 (6) Chapter 11 of the Regulations which reads as under :
"(6) Within three weeks from the date of receipt of the proposal under clause (5), the Inspectors shall communicate his decision therein to the Manager failing which the inspectors shall be deemed to have given his concurrence to the resolution passed by the Committee of Management."
8. Under Regulation 6 (5) of the Regulations, the Management of the institution is required to forward the proposal for appointment by promotion of any teacher to the Inspector within a week from the date of resolution passed by the Committee of Management in regard to such appointment, in case of Girls Colleges, the resolution was required to be sent to the Regional Inspectress of Girls Schools who was competent to accord approval. The resolution along with other relevant paper was forwarded to the Regional Inspectress of Girls Schools on 24.11.1993. Concededly. Regional Inspectress of Girls Schools failed to communicate her decision on the resolution to the Management of the institution within three weeks of the date of receipt of the proposal and, therefore, as stipulated in clause (6) of the Regulation 6 of Chapter II of the Regulations made under the Act. the Regional Inspectress of Girts Schools would be deemed to have given her concurrence to the resolution passed by the Committee of Management in respect of appointment of the appellant by promotion to the post of Lecturer (Urdu).
9. However, regard being had to the fact that since the promotion of the appellant was not expressly approved by the Regional Inspectress of Girls Schools in writing, the Management promoted the 5th respondent who has been working as Lecturer (Urdu) and the same has been approved , by the Regional Inspectress of Girls Schools as also the fact that the petitioner-appellant is due to retire on 30th June. 1999 as stated across the bar by the counsel appearing for the parties as well as the fact that she has not actually worked as Lecturer after the 5th respondent was promoted to the post and the fact that her deemed promotion to the post of Lecturer, can still be rescinded in case the Director converges to the view that she is not equipped with the requisite qualification for the post, we are inclined to dispose of the appeal with the direction that although the appellant herein shall be deemed to have been promoted to the post of Lecturer (Urdu) which fell vacant on the retirement of permanent incumbent-Begum Jahan on 30.2.1993 and she shall be given all retiral benefits admissible to the post of Lecturer and for that purpose, she shall be deemed to have been in continuous service as Lecturer (Urdu), but at the same time, would not be entitled to the salary with effect from the date the promotion of the 5th respondent was approved by the Regional Inspectress of Girls Schools.
10. The appeal, therefore, succeeds and is allowed in terms of the above directions and the judgment , under challenge accordingly is set aside and the order impugned in the writ petition is quashed. The parties shall bear their respective costs.