R.B Misra, J.:— The present petition under Article 226 of the Constitution of India seeks to challenge U.P Ordinance No. 22 of 1978. The facts leading up to the present petition are as under:
Petitioner No. 1 is a Society of the Secondary teachers of Uttar Pradesh registered under the Societies Registration Act. It looks after the welfare and interest of the secondary teachers of Uttar Pradesh and agitates for their rights. There are about 80,000 secondary teachers of privately managed institutions and the local bodies. Out of them, about 60,000 teachers are its members. The educational institutions in Uttar Pradesh can be classified in three categories:
1. Institutions managed and run by the Central Government.
2. Institutions run by the State Government and the local bodies, and,
3. Institutions run by private management.
2. The service conditions of the teachers in the aforesaid three categories of institutions are governed by the provisions of the various Acts. In the instant case, the petition is concerned with the teachers of the privately managed secondary schools. The service conditions of those teachers are governed by the Uttar Pradesh Intermediate Education Act, 1921 and the Regulations framed thereunder. In respect of the other two categories of the institutions, mentioned above, there are different Acts under which they are governed.
3. The service conditions of the teachers employed in the privately managed schools were very unsatisfactory on account of the mismanagement rampant on those institutions. It was mostly due to rival factions in the Committees of Management. The teachers of those institutions were working at the sweet will of the Managers or other influential members of the Committee of Management. The scale of pay of those teachers was also very low. Uttar Pradesh Madhyamik Shikshak Sangh, petitioner No. 1, was formed to ameliorate the lot of those teachers. Since its inception, it started agitating for their better service conditions and higher pay scales etc. with the result that various amendments were brought in the Uttar Pradesh Intermediate Education Act and several other Acts were passed by the Uttar Pradesh Legislature for the benefit of those teachers. Their pay scales were raised to the level of the teachers working in the institutions run by the State Government and their service conditions were also improved. In matters of appointment and dismissal, restrictions were placed on the capricious action of the Committee of Management. Despite the various measures taken by the Government for improving the conditions of the secondary teachers, there was not much appreciable change in their lot due to bad management. The teachers, therefore, have been crying hoarse for the nationalisation of those institutions.
4. On account of the spiral price increase in the country, petitioner No. 1 demanded for the pay revision by setting up Pay Commission and by granting Ad-hoc increase of Rs. 150/- per month. The stand of the teachers was that according to the recommendations of the Kothari Commission, the pay revision of the teachers should be made after every five years.
5. It appears that petitioner No. 1 submitted its character of 27 demands to the Government of Uttar Pradesh on 9th August, 1977. To enumerate a few of them they were:
1. Non-removal of the ‘Education’ from the current list.
2. Stoppage of retrenchment,
3. Pension parity.
4. Introduction of selection grade.
5. Payment of arrears of pay.
6. Refund of deductions made earlier under the Compulsory Deposit Scheme,
7. Parity in the pay-scales of teachers in different types of Junior High Schools.
8. Nationalisation of Higher Secondary Education.
9. Setting up of Education Service Commission.
10. Ad-hoc payment of Rs. 150/- each per month pending decision of the National Wage Policy.
6. As no settlement could be arrived at between the Government and the teachers, the petitioner No. 1, eventually, gave a call for an indefinite strike commencing from 2nd December, 1977. In response to the rail, fairly a sizeable section of the secondary teachers (about 90 per cent) went on strike from 2nd December, 1977.
7. The Government of Uttar Pradesh issued a notification on 24th December, 1977, declaring teaching work in educational institutions as essential service under the Uttar Pradesh Essential Services Maintenance Act (U.P Act No. 30 of 1966). The Governor of Uttar Pradesh also promulgated an Ordinance called U.P High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) (Amendment) Ordinance, 1977, whereby Section 4 of U.P Act No. 24 of 1971 was amended. In substance, the amendment provides in sub-section 3(a) that the Director may at any time by general or special order direct any teacher who goes or remains on or otherwise takes part in any strike which has been prohibited by an order under Section 3 of the Uttar Pradesh Essential Services Maintenance Act, 1966 to resume duty by the day or hour specified in the order. Section 3(b) provides that the contract of employment of the teacher with the management shall become void with effect from the day or hour specified in the aforesaid direction upon the failure of the teacher to resume duty in response thereto. Section 3(c) provides that where a contract becomes void under Clause (b), the teacher concerned shall not be entitled to any notice before such termination of his services, nor shall any disciplinary inquiry be required before such action, anything contained in the Intermediate Education Act, 1921, and the regulations or, as the case may be, conditions of his service notwithstanding. Section 3(d) provides that the State shall not be liable for payment of salary to any such teacher beyond the day or hour specified in such direction, anything contained in Section 10 notwithstanding, According to Section 4, “the management or failing it the Inspector may, notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921, or in the Regulations for the time being in force with respect to the mode of selection, appointment or approval of appointment, be competent to appoint on temporary basis any person possessing the requisite qualifications for discharging the duties of the post of any such teacher.”
8. It appears that the Director of Education, Uttar Pradesh, issued a notification dated 31st December, 1977, in pursuance of the amended Section 4 of U.P Act No. 24 of 1971, directing that the teachers on strike or otherwise taking part in the strike prohibited by order under Section 3 of U.P Act No. 30 of 1966, to resume duty positively by 11-00 A.M on January 5, 1978, but the striking teachers did not resume duty by 5th January, 1978, as directed by the Director of Education, with the result that the contract of employment of the teachers with the Management became void in view of clause (b) of Section 3 of the aforesaid Ordinance.
9. One Sri Raj Karan Singh, a striking teacher, filed a writ petition in this Court challenging the aforesaid Ordinance and the notification, which was, later on, numbered as Civil Misc. Writ No. 133 of 1978, in which an interim order was granted by this Hon'ble Court in the following terms:
“………We, therefore, direct that the services of the striking teachers who do not join their duties shall not stand terminated automatically as contemplated by the U.P High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) (Amendment) Ordinance No. 26 of 1977 if the striking teachers fail to join their duties by 9th January, 1978, it will be open to the State Government and the Director of Education to make alternative arrangement for carrying on the work of teaching and for that purpose fresh teachers may be appointed in place of striking teachers so that the teaching of the students in the various institutions, is not paralysed. In that event, the striking teachers in whose place the appointments are made shall not be entitled to any salary for that period.”
10. The striking teacher (the petitioner in that case) thereafter, resumed his duties. This Court on the basis of the undertaking given by the Solicitor General modified the interim order in the following terms:
“Learned Solicitor General stated before us that if the striking teachers resume their duties by tomorrow they will be allowed to join in case where fresh and ad hoc appointments have been made and the new appointees have not taken over charge. But the position would be different where new teachers have taken over charge, as those cases are under consideration. Shri S.C Khare, learned counsel for the petitioners has stated that petitioner Raj Karan Singh has already resumed his duties. In view of the statements made by the learned counsel for the parties, we are of the opinion that it is not necessary to continue the interim order dated 5-1-1978. We, accordingly, vacate the same.”
11. Later on, the writ petition No. 133 of 1978 itself was withdrawn in the changed circumstances.
12. A fairly large number of persons had been appointed between Jan, 9 and 16, 1978, on ad hoc basis, but their services were terminated with effect from 20th Jan., 1978, after giving them one month's salary. Although the services of the newly appointed teachers on ad hoc basis between January 9 and 16, 1978, were terminated, the Governor of Uttar Pradesh promulgated an Ordinance known as Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P Ordinance No. 10 of 1978). Section 4 of the said Ordinance provides that the District Inspector of schools shall maintain a register of “reserve pool teachers” consisting of persons who were appointed as teachers in any institution situated in the district either by the management or by the Inspector under sub-section (4) of S. 4 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 while the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) (Amendment) Ordinance, 1977, was in force, and who had actually joined their duties in pursuance of the said provision between Jan, 9, 1978, and Jan, 19, 1978.
13. Sub-section (2) of S. 4 of the said Ordinance contemplates that where any substantive vacancy in the post of a teacher in an institution recognised by the Board is to be filled by direct recruitment, such post shall at the instance of the Inspector be offered by the Management to a teacher whose name is entered in the register referred to in sub-sec. (1) of S. 4 of the said Ordinance.
14. Pursuant to the said Ordinance, the Deputy Secretary, Education, issued a D.O Letter dated 1st July, 1978, to the Director of Education, U.P, Lucknow, The Additional Director of Education, in his turn, issued a letter dated 4th July, 1978, to all the District Inspectors of Schools and the Regional Inspectresses of Girls Schools to make appointment in pursuance of the Ordinance No. 10 of 1978. The U.P Intermediate Education (Amendment) Act end the Regulations framed thereunder provide a meticulous procedure for selection and the appointment of a teacher in an institution, Regulation 10 of Chap. II provides that after the post is advertised, the applications shall be submitted to the District Inspector of Schools who will get the applications so received numbered and entered in the prescribed form. The Inspector of Schools shall award quality mark to each candidate according to the criteria laid down in Appendix ‘D’ and only those persons who rank amongst first seven, their applications shall be sent to the Committee of Management for selection. The Selection Committee consists of three experts who are nominated by the District Inspector of Schools from amongst the list of experts prepared by the Director of Education, From the aforesaid provision, it would be seen that a person seeking an appointment as a teacher has to undergo the ordeal before a selection committee.
15. But the persons appointed during the strike period on ad hoc basis did not go before the Selection Committee nor their selection was made on the basis of-the provisions of the Amended Intermediate Education Act and the Regulations framed thereunder. They only satisfied the bare minimum qualification for being appointed as a teacher in view of the amended Section 4 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) (Amendment) Ordinance, 1977. Ordinance No. 10 of 1978 provides that all the substantive vacancies occurring in the institutions shall be filled in exclusively from amongst those persons who were appointed under the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) (Amendment) Ordinance, 1977 and had actually joined their duties between 9th January, 1978, and 19th January, 1978. Such persons did not have to undergo any selection or competition at all and they were to be offered appointment against those vacancies and this process was to continue till the list of those pooled teachers was exhausted.
16. In pursuance of the advertisement issued by the various institutions, petitioners Nos. 3 to 8 applied for the post) of lecturers or teachers in various colleges. They were also called for interview but the selection was postponed by the District Inspector of Schools and directions were issued in pursuance of U.P Ordinance No. 10 of 1978 that the posts shall not be filled in by selection from amongst the applicants, but from those teachers who were appointed during the enforcement of the U.P High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) (Amendment) Ordinance, 1977, and had joined their duties between 9th Jan., 1978, and 16th Jan., 1978, Under the circumstances, the petitioners Nos. 1, 2, and 3 filed a writ petition (Civil Misc. Writ No. 6901 of 1978), Committee of Management of Kisan Inter College, Kakroli v. State of U.P challenging the U.P Ordinance No. 10 of 1978 and the letters dated 1st July, 1978, and 4th July 1978, issued in pursuance thereof. The petition was admitted and an ad interim order was passed to the effect that the impugned Ordinance No. 10 of 1978 shall remain inoperative and it shall not be given effect to till further orders. Petitioners Nos. 1, 4, 5, 6 and 7 filed another writ petition No. 6903 of 1978, Sohan Pal Singh v. State of U.P challenging the U.P Ordinance No. 10 of 1978. This petition was also admitted and an interim order in similar terms was passed in this petition also.
17. It appears that U.P Ordinance No. 10 of 1978 was passed by U.P Vidhan Sabha. It was placed in U.P Vidhan Parishad but somehow or the other it was not put for discussion and the Ordinance could not be made an Act and expired on 17th October, 1978. When the writ petition came up for final hearing, the chief Standing Counsel made a statement at the bar that U.P Ordinance No. 10 of 1978 had already lapsed and it could not ripen into an Act. The writ petition was, therefore, dismissed as infructuous. But, just thereafter, an Ordinance No. 22 of 1978 was promulgated, known as Uttar Pradesh (High Schools and Intermediate Colleges) (Reserve Pool Teachers) Ordinance, 1978 with retrospetive effect from 24th June, 1978 and published in the U.P Extraordinary Gazette dated 7th October, 1978. The provisions of this Ordinance were in parimateria with those of U.P Ordinance No. 10 of 1978 with some minor change.
18. The number of the secondary teachers kept in the reserved pool created by the Ordinance is 2257 and, at present, there are 2740 substantive vacancies spread over in the recognised and aided institutions which are about 3800 in number in the whole of Uttar Pradesh. Unless the reserved pool teachers numbering 2257 are absorbed in the substantive vacancies occurring at present, nobody else can be taken in.
19. The petitioners have under the circumstances come to challenge the validity of the Ordinance by filing the present petition. They pray for the issue of a writ of certiorari quashing U.P Ordinance No. 22 of 1978 and the various letters issued thereunder. They further pray for the issue of a writ of mandamus, order or direction in the nature of mandamus directing the respondent not to implement U.P Ordinance No. 22 of 1978 or to make any appointment on the basis of U.P Ordinance No. 22 of 1978.
20. Sri S.C Khare and Sri R.K Garg, appearing for the petitioners, have contended that the impugned Ordinance No. 22 of 1978 is hit by Arte. 14, 16 and 19(1)(g) of the Constitution of India inasmuch as it gives undue preference to the pooled teachers and unless the list of the pooled teachers is exhausted, no other person can be appointed as teacher in a privately managed institution. In substance, the Ordinance deprives other persons of the opportunity to seek appointment in any privately managed institution unless the list of the pooled teachers has been exhausted even though other persons are more qualified than the pooled teachers. As a second limb to this argument, it was urged that the trained teachers already working in those institutions could get promotion from L.T Grade to lecturers' grade, but the chances of their promotion as lecturer have also come to an end by the impugned Ordinance till the list of the pooled teachers is exhausted.
21. Article 14 of the Constitution enjoins that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 16 is only a species of Art. 14 and provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. A bare persual of Art. 14 of the Constitution makes it clear that there is no relaxation of the restriction imposed by it. All the same, Art. 14 of the Constitution is really not so absolute.
22. In this unequal world, the proposition that all men are equal has working limitations, since absolute equality leads to procrustean cruelty. Necessarily, therefore, an imaginative and constructive modus vivendi between commonness end excellence must be forged to make equality clauses viable. The pragmatism produced the judicial gloss of classification and differentia with the bye-product of equality, among equals and dissimilar things to be treated differently.
23. The equality clause forbids class legislation, but does not forbid classification, for, though classification involves putting persons or things together in a class, the equality clause requires that the class thus formed must not leave out any person or thing which falls within the class, as the class formed for the purpose of class legislation unmistakably does.
24. Article 14 of the Constitution combines the English doctrine of the rule of law and equal protection clause of the 14th amendment to the U.S Constitution. But for making a classification, the Courts have laid certain norms. Permissible classification must satisfy two conditions:
(i) It must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and,
(ii) The differentia must have a rational relation to the object sought to be achieved by statute in question.
25. In view of the various decisions of the Supreme Court, now Art. 14 will virtually mean that the State shall not deny to any person equality before the law or equal protection before the law provided that nothing herein contained shall prevent the State from making a law based on or involving a classification founded on an intelligible differentia having a rational relation to the object sought to be achieved by law. If the prohibition contemplated by Art. 14 of the Constitution has been violated, the law will be void howsoever laudable the motives of its makers. It is not necessary, to maintain a challenge under Art. 14 of the Constitution to show an intention on the part of the legislature to discriminate. What has to be seen is whether in its operation, the State discriminates no matter whether such discrimination is a result of conscious or unconscious act of the Legislature. The real question is, does the impugned law violate the provisions of Art. 14 of the Constitution of India.
26. We have now to examine the impugned Ordinance on the touch-stone of the above principles laid down by the Supreme Court. The Ordinance makes a classification of pooled teachers from other teachers. Pooled teachers are those teachers who were appointed as an emergency measure during the continuance of the strike by a sizeable section of the teachers.
27. The teachers had every right to make a collective demand from the State Government and to resort to strike also, but by notification dated 24th December, 1977, teaching work in educational institutions was declared as essential service under U.P Act No. 30 of 1966. The Director, Education, U.P as stated earlier, issued a notification dated 31st December, 1977, under Section 4(3)(a) of the U.P High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 directing all teachers who had on or after 24th December, 1977, gone on or remained on or otherwise taken part in the strike, to resume duty positively on January 5, 1978. This date was extended by the court with the consent of the Standing Counsel. The contract of service of the teachers on strike, who did not join within the time specified, became void and new persons were appointed as teachers in their place. They had not to appear before the Selection Committee, as required by the U.P Intermediate Education Act and the Regulations framed thereunder. Under Section 16, they were required only to satisfy the minimum qualification. The reason was obvious. As their appointment was at a critical time and it was not feasible to observe the formalities required by Section 16-E of the U.P Intermediate Education Act, 1921, if the teachers on strike refused to join and resume duty, there was no option for the State but to appoint new teachers, so that the education of students may not hamper.
28. The difficulty has, however, arisen when the teachers on strike whose contract of service had been terminated were reinstated and the services of the newly appointed persons during strike period were terminated on payment of one month's salary even though they had worked only for about a week. Those teachers have now been included in a pool and the ordinance contemplates that those teachers must be provided for in vacancies as and when they occur in the privately managed institutions and after the list of the pooled teachers is exhausted, any other person can be appointed. The vacancies, at present, are a little more than the number of the pooled teachers and, therefore, all those pooled teachers could be accommodated in the vacancies that are existing at present in various institutions, and it is only when the list of those pooled teachers is exhausted that any new appointment can be made in those institutions or a teacher in L.T Grade could be promoted to the lecturers' grade, as under the Rules, 40 per cent of the L.T Grade teachers can be promoted in lecturers' grade, but the door for all those persons will remain closed till the list of the pooled teachers is exhausted.
29. In procedure also, there is a material difference. For others, who do not fall under the category of pooled teachers, they have to satisfy the requirements of Section 16-E of the U.P Intermediate Education Act and they shall have to appear before a Selection Committee and the Selection Committee will select the best amongst them for appointment, but in case of the pooled teachers, the requirement of Section 16-E of the U.P Intermediate Education Act has been dispensed with. Thus, a discrimination has been made in case of pooled teachers as against those who are outside the class. Now the question is whether such a classification satisfies the two criteria, mentioned above.
30. The object of the impugned Ordinance was to promote the cause of education and the cause of education can be promoted by best teachers. It is better to be untaught than ill taught. The teachers selected by the Selection Committee strictly in accordance with Section 16-E of the U.P Intermediate Education Act, 1921 will obviously be after a good deal of scrutiny and only best of the lot would be selected, but in case of pooled teachers, who satisfied just a bare minimum qualification, as given in Appendix ‘A’ to the U.P Intermediate Education Act, cannot promote the cause of education, as efficiently as the teachers selected by the experts in a Selection Committee. Thus the differentia for the classification, in my opinion, does not have a nexus to the object sought to be achieved by the statute in question. In our opinion, the impugned Ordinance also does not satisfy the other criterion, namely, Intelligible differentia. The only basis for the classification is that the pooled teachers had worked for seven days at a time when a majority of the teachers was on strike. If they worked at such a time, they were paid for their work, but that is hardly an intelligible differentia for relaxation of the mandatory requirements of Section 16-E of the U.P Intermediate Education Act. It blocks the door for the other candidates, who may be even better qualified than the pooled teachers, merely on the basis that they had worked for seven days during the strike period. Reliance was placed on State of Kerala v. N.M Thomas (1976) 2 SCC 310 : AIR 1976 SC 490. In that case, relying on the case of All India Station Masters' and Asst. Station Masters' Association, Delhi v. General Manager, Central Rly. AIR 1960 SC 384, the Supreme Court observed: (At p. 508)
“that equality of opportunity in matters of employment could be predicated between persons who were either seeking the same employment or had obtained the same employment. The essential object of various rules dealing with appointment to posts under the State and promotion to higher posts is to ensure efficiency of service. Classification upheld under clause (1) of Article 16 sub-served and in no case militated against the attainment of that object. Exemption granted to a class of employees, even though for a limited period, from passing the departmental tests which have been prescribed for the purpose of promotion would obviously be subversive of the object to ensure efficiency of service. It cannot be disputed that departmental tests are prescribed with a view to appraise and ensure efficiency of different employees. To promote employees even though they have not passed such efficiency test can hardly be consistent with the desideratum of ensuring efficiency in administration.”
31. Sub-clause (4) of Article 16 of the Constitution of India provides for the reservation of appointment or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State. Clause (4) of Article 16 has no application to the facts of the instant case. The reservation for the pooled teachers had been made I not on the basis that they are backward. Therefore, the Ordinance defies the equality clause of Articles 14 and 16 of the Constitution of India.
32. Sri Garg further supports his contention by referring to Article 30 which gives absolute right to all minorities, whether based on religion or language to establish and administer an educational institution of their choice and the State has been enjoined not to criminate against any educational institution in granting aid to the educational institution on the ground that it is under the management of a minority, whether based on religion or language Yet, on that account, the standard of education cannot be lowered and the standard of education was to be maintained even in such a situation. This view finds support from a decision of the Supreme Court in State Of Kerala, Etc. v. Very Rev. Mother Provincial, Etc (1970) 2 SCC 417 : AIR 1970 SC 2079. In that case, dealing with Article 30 of the Constitution, the Supreme Court observed: (At pp. 2081-2082)
“Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two lights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.
The next part of the right relates to the administration of such institutions. Administration means ‘management of the affairs’ of the institution. This management must be free of control so that the founders or their nominees canmould the institution as they think fit and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.
There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if Universities establish the syllabi for examinations, they must be followed subject, however, to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students.”
33. In case of Article 30 of the Constitution where absolute right has been given to minority community yet they cannot in course of management lower down the standard of education in those institutions. There seems to be no reason why the State should promulgate an Ordinance which might eventually result in hampering the cause of education rather than enhancing it.
34. Sri S.N Kacker, the Solicitor General of India, has, however, supported the impugned Ordinance and his contention is that the Ordinance satisfies the requirements of a valid classification. According to him, the pooled teachers were qualified teachers who respected the essential nature of teaching service and contingency of education together with an extraordinary sense of discipline in a most difficult position and, therefore, the classification made by the Ordinance was a valid classification based on a rational basis and it had a nexus to the object sought to be achieved by the Ordinance, namely, the continuation of the proper education. According to him, the appointment of the pooled teachers was made at a time when there was no occasion for them to appear before the Selection Committee, as contemplated by Section 16-E of the U.P Intermediate Education Act, 1921. It was a question of now or never.
35. There is no denying the fact that the pooled teachers were appointed at such I time when it was not feasible to undergo the long process of selection and sanction by the District Inspector of Schools etc. But, the question here is whether this could be perpetuated in future. Sri Kacker, however, contended that there is no question of perpetuating this state of affairs for all times to come. The actual vacancy in various institutions occurring at the present time is far more than the number of the pooled teachers and they would all be absorbed within one year. Whether the discrimination is for one year or for one day, it will be a discriminatory (sic) invalidating the ordinance.
36. Mr. Kacker further contended that no teacher is being ousted if the pooled teachers are accommodated. I feel difficulty in accepting even this contention. If the Ordinance contemplates that till the list of the pooled teachers is exhausted, no appointment of any person in any institution can be made, it completely not only ousts, but shuts the door for the new-comer even though they may be better qualified than the pooled teachers. Sri Kacker also argued that in the absence of any specific plea taken by the petitioners, that the Ordinance has prejudiced than or will prejudice them, a writ of certiorari, cannot be issued. The petitioners have to show that their right has been directly affected. I have perused the petition and the various affidavits exchanged between the parties. In the supplementary affidavit, it has been alleged that some of the teachers were in L.T Grade and according to Rule, 40 per cent of those teachers were to be promoted in lecturers' grade, but that is not possible till the list of the pooled teachers is exhausted. The petition has, however, been filed, not only on behalf of the individual petitioners, but also on behalf of the petitioner No. 1, which is an Association, registered under the Societies Registration Act. If Article 19 of the Constitution confers a right to form an association or union, the existence of the petitioner No. 1 is justified and as an Association, it has been fighting for the cause of its members and, therefore, the Association has a right to file the writ petition under Article 228 of the Constitution of India, as it has a right to protect the rights of its members. If authority be needed, reliance can be placed on Sudershan Transport Service (Pvt.) Ltd., Bilaspur v. State Transport Appellate Authority, Madhya Pradesh, Gwalior AIR 1961 Madh Pra 233. Dealing with this point, a Division Bench of that Court held as under:—
“Article 226 says nothing as to the person who can apply for an appropriate order or writ or direction. But there is no doubt that a person or a body whose interests are directly affected by a statute or an order can have redress under that Article. Thus, an association of persons, which had applied for a permit for stage carriage on certain route in a district in the name of the firm under the Motor Vehicles Act, is entitled to apply under Art. 226 in the name of the firm for a writ of certiorari to quash certain order of the Transport Authorities under the Act.”
37. The petitioner No. 1, therefore, has a right to challenge the Ordinance on behalf of the other persons (its members) and in that view of the matter, the allegations have been made in the supplementary affidavit specifying the teachers who were in L.T Grade or C.T Grade and who could be promoted in lecturers' grade according to 40 per cent rule. Likewise, the supplementary affidavit gives the names of those teachers who had applied for selection in various institutions, but their selection was stayed on account of the directions issued by the Director of Education in pursuance of the impugned Ordinance.
38. There is yet another aspect from which the point in question can be considered. The education is a provincial subject in Appendix 7. But standard of education is the Union's subject. It is also doubtful whether the State can promulgate an Ordinance or make a law relaxing the standard. For all these considerations, we have not the slightest doubt that the impugned Ordinance is hit by Articles 14 and 16 of the Constitution.
39. Sri S.C Khare has also challenged the Ordinance on the ground that it takes away the right of the management to appoint teachers of its liking and to hold the property. I am afraid, this contention cannot be accepted for two reasons; firstly, because the appointment of teachers is now to a very large extent governed by the provisions of the U.P Intermediate Education Act, 1921 and it is not at the sweet will of the management to appoint a teacher of its liking, and, secondly, no material has been placed to indicate that the Ordinance takes away the right of the management to manage the property of the institution.
40. Lastly, it was contended that the promulgation of the impugned. Ordinance was at a time when at least one House was in session and in view of Article 213 of the Constitution, the Governor had no power to promulgate the impugned Ordinance. Article 213 of the Constitution, in so far as it is material for the purposes of the contention raised, reads:
“213.(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances may appear to him to requires:
Provided ……………”
41. The exception to Article 213 of the Constitution provides that in a State which has Legislative Assembly and Legislative Council and both the Houses are in session, the Governor has no power to promulgate an Ordinance. U.P State has got two Houses. It is not in dispute that on the date when the Ordinance was promulgated, only one House was in session and, therefore, there was no bar on the power of the Governor to promulgate the Ordinance.
42. Therefore, the last contention raised by Sri Garg cannot be accepted for a moment.
43. For the reasons given above, this petition succeeds and is allowed. The impugned Ordinance is declared to be void being violative of Articles 14 and 16 of the Constitution of India. The telex message dated 18th October, 1978, of the Education Secretary, U.P, Lucknow, as also the telex message dated 19th October, 1978, of the Additional Director of Education, U.P are quashed. In the circumstances of the case, parties will bear their own costs.
44. Petition allowed.
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