LexNAGAR MAHAPALIKA KANPUR versus SMT. VIBHA SHUKLA AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
NAGAR MAHAPALIKA, KANPUR
-~
v.
SMT. VIBHA SHUKLA AND ORS.
MAY 18,2007
B
[S.B. SINHA AND MARKANDEY KA TJU, JJ.]
~
"
U.P. Intermediate Education Act, 1921-s. 16(GG) and 16 E-U.P.
--t-
Municipal Corporations Adhiniyam, 1959-s. JOB-Appointment of incumbent
c on a temporary post in terms of 1959 Act-Services extended from time to
time-Termination thereafter-Claim for regularization in terms of 1921 Act-
Applicability of I 92 I Act vis-a-vis I 959 Act-Held: Incumbent was appointed
in terms of 1959 Act-Section 16 (GG) Act raises a legal fiction where/or the
conditions precedent laid down must be strictly complied with-Thus, having
not been appointed in conformity with the provisions of the 1921 Act, section
D 16(GG) of the 1921 Act has no application.
Respondent No.I was appointed for a period of one year on a temporary
...
post in terms of U.P. Municipal Corporations Adhiniyam, 1959. Her services
--r-
were extended from time to time and were later terminated. Respondent no. 1
E
challenged the termination and claimed regularization of services in terms
of section 16(GG) of the UP Intermediate Education Act, 1921. Tribunal allowed
the application. Aggrieved appellant filed writ petition which was dismissed.
Hence, the present appeal.
The question which arose for consideration in this appeal was with
F
regard to the applicability of UP Intermediate Education Act, 1921 vis-a-vis
U.P. Municipal Corporations Adhiniyam, 1959.
'
Allowing the appeal, the Court
-{
-.
HELD: 1.1 Appointment of the first respondent on a temporary post was '
G
extended from time to time. Having regard to the statutory embargo contained
in section 108 of the U.P. Municipal Corporations Adhiniyam, 1959, each of
such extension must be treated to be a fresh appointment Her appointment
was not made in terms of section 16 E of the UP Intermediate Education Act,
1921. Whereas an appointment in terms of section 108 of 1959 Act cannot
--r
be made for a period exceeding one year, in terms of section 16-E (11) of 1921
H
488
(
-J
....
~
'
~
-<r-
NAGARMAHAPALIKA. KANPUR v.VIBHA SHUKLA
489
Act, an appointment can be made for a period not exceeding six months and, A
that too subject to the condition that no appointment made under the said
section would not, in any case, continue beyond the end of the educational
session during which such appointment was made.
[Para 14) [494-E-G]
1.2. The 1959 Act, being a later Act, ordinarily would prevail over the B
1921 Act. Rules have also been framed under the 1959 Act. The provisions
of the said Rules being in consonance with the provisions of the 1959 Act
would be treated to be a part thereof as it is well settled that Rules validly
framed would become part of the main legislation. Thus, any appointment made
in terms of section 108 of the 1959 Act must conform to the provisions c
contained therein as also the rules framed thereunder. Section 108 of the
1959 Act is an exception to the provisions of Section 107 thereof, which in
turn is in tune with the constitutional scheme laid down under Articles 14
and 16 of the Constitution of India. Prior to 1.12.1977 when section 108-A
· was introduced, an appointment of a teacher to be made by a Municipal Council
was to be governed by the provisions contained therein or the rules framed D
thereunder. Section 108-A does not incorporate the provisions of the 1959
Act by reference. It merely carves out an exception to sections 107 and 108
of the Act provided that all such appointments were made in terms of the 1921
Act. Therefore, section 16 (GG) of the 1921 Act per se would not apply when
no appointment has been made in terms thereof. Section 16 (GG) of the 1921 E
Act raises a legal fiction wherefor the conditions precedent laid down must
be strictly complied with. [Para 15) (494-H; 495-A-C]
Di/ip S. Dahanukar v. Kotk Mahindra Ltd., (2007) 5 SCALE 452,
referred to.
1.3. Respondent No. 1 was appointed during the period August 18, 1975 F
and 30th September, 1976 on temporary basis. The appointment as also the
terms and conditions of services of the first respondent are governed by the
1959 Act. Such an appointment was not made in terms of sub-section (11) of
section 16-E of the 1921 Act. There is nothing to show that there existed a
clear vacancy or she was appointed in terms of the Act.
G
[Paras 16 and 19) [495-D; 497-A; 495-E]
1.4. Procedures for appointments under the 1921 Act and the 1959 Act
are diExcerpt shown. Read the full judgment & AI analysis in Lexace.