# Amar Nath v. D.I.O.S., Deoria and another

- **Citation:** (2004) 1 ILRA 50
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-08-30
- **Case number:** Civil Misc. Writ Petition No. 1900 of 1994
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-nath-v-d-i-o-s-deoria-and-another-40274
- **Pages:** 4

## Headnote

Constitution of India-Article 226-Service
law-appointment-Asstt. Clerks appointed
by Management without advertisementfinancial approval denied-Vacancy fall
under promotion quota-D.I.O.S. rightly
denied the approval-Direct appointment
must under promotion quota not proper.

Held- Para 8

Writ petition filed by the petitioner
claiming
appointment
on
direct
recruitment for a post under promotion
quota was not maintainable as the
vacancy in question was to be filled-up
by
way
of
promotion
the
District
Inspector of Schools has not accorded
approval to the appointment of the
petitioner and he is not entitled to the
salary from the District Inspector of
Schools.

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
50
which in case the physical requirements,
and categories of disabilities are provided,
in which O.L., i.e. one leg affected, is
included. With this reservation applicable
to the post of Assistant Clerk, the
petitioner Sri Neeraj Kumar Pandey who
claims to be physically handicapped could
not have been denied consideration for
horizontal
reservation
in
his
own
category. Annexure-4 is certificate issued
to him by Orthopedic Surgeon and
counter-signed by the Chief Medical
Officer which shows that he has disability
on right lower limb by fifty percent
(PPRP).

18. Interim orders were passed by
this Court not to give appointment to the
last
eight
selected
candidates.
The
vacancies were reduced from 54 to 42 for
the junior clerks and it is stated that last
eight candidates have not been given
appointment. The Court is thus left to
decide the validity of appointment of 36
junior clerks out of the select list prepared
by the District Selection Committee. This
Court did not grant interim order as the
matter related to Allahabad itself and it
was expected that the counter affidavit
may be filed on 7.8.2003. Inspite of a
statement given by Sri H.P. Upadhyay,
learned
Additional
Chief
Standing
Counsel, on 22.5.2002 no appointment
were to be made until next date of
hearing, but still the appointment letters
were issued. The respondents have,
therefore, breached the assurance given
by learned Additional Chief Standing
Counsel to this Court. The matter was
subjudice, and almost all the affected
persons
had
knowledge
of
the
proceedings. The appointment letters
were, therefore, illegally issued and
cannot defeat petitioners right on the
ground that the selected persons have not
been impleaded.

19. In the facts and circumstances of
the case, all the writ petitions are allowed.
It is held that the respondents have
illegally
and
arbitrarily
refused
to
consider petitioners for the post of
Assistant Clerk in Government Press
advertised
vide
advertisement
dated
30.8.2001 published in Dainik Jagran,
Allahabad.
All
the
petitioners
and
similarly situate candidates, are entitled to
be considered for the post of junior clerks
irrespective of the fact whether they
disclosed that they had knowledge of
typing. All appointments made out of
select list are quashed. Respondents are
directed to rearrange the select list in
accordance with Rules 2001, as well as
directions issued in this judgement, and to
prepare a fresh select list and to offer
appointment strictly in accordance with
law. In writ petition Nos. 18791 of 2003
and No. 20213 of 2002, petitioners is held
entitled to be considered for reservation as
dependent
of
freedom
fighter
and
physically handicapped post for the post
of Assistant clerk and shall be considered
accordingly. The costs are quantified at
Rs. 5,000/- to be paid by the respondents.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 1900 of 1994

Amar Nath

...Petitioner
Versus
District Inspector of Schools, Deoria and
another

 ...Respondents
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1 All] Amar Nath V. D.I.O.S., Deoria and another
51
Counsel for the Petitioner:
Sri S.N. Shukla

Counsel for the Respondents:
Sri R.C. Dwivedi
Sri K.M. Shahi
S.C.

Constitution of India-Article 226-Service
law-appointment-Asstt. Clerks appointed
by Management without advertisementfinancial approval denied-Vacancy fall
under promotion quota-D.I.O.S. rightly
denied the approval-Direct appointment
must under promotion quota not proper.

Held- Para 8

Writ petition filed by the petitioner
claiming
appointment
on
direct
recruitment for a post under promotion
quota was not maintainable as the
vacancy in question was to be filled-up
by
way
of
promotion
the
District
Inspector of Schools has not accorded
approval to the appointment of the
petitioner and he is not entitled to the
salary from the District Inspector of
Schools.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri S.N. Shukla, learned
counsel for the petitioner at length.

2. The petitioner was appointed as
an Assistant Clerk in Lala Karam Chand
Thapar Inter College, Deoria by the
Committee
of
Management
vide
resolution-dated 26.11.92, which has been
appended as Annexure-1 to the writ
petition. He submits that there was no
advertisement issued by the respondents
for the appointment of the petitioner on
the post in question. Vide Annexure-2 the
D.I.O.S.
had
made
certain
queries
regarding sanctioned strength of the post
of Clerk in the college in question.
According
to
the
D.I.O.S.
the
appointment of the petitioner was not in
accordance with law and he did not
accord
financial
approval
to
his
appointment.

3. The contention of the petitioner is
that vide Annexure-8 the D.I.O.S. had
granted approval to the appointment of
one Bhatrendu Sharma but this letter is
silent about the petitioner. He also
contends that there is no provision for
making appointment on the post of Class
III and class IV posts in Intermediate
College. The standing counsel submits
that the Committee of Management has
passed
the
resolution
without
any
authority of law for filling up the vacancy
and that the vacancy has to be filled up by
way of 50% promotion amongst the
senior most class IV employee. It is
contended by the learned Standing
counsel that the petitioner has no claim
for payment of salary and it can not be
released in his favour as the appointment
of the petitioner was neither in accordance
with law nor financial sanction was
granted to him by the D.I.O.S.

4. Learned counsel for the petitioner
was given an opportunity to file an
affidavit annexing therewith copy of the
advertisement for the post in question.
The petitioner has not filed copy of the
advertisement. Referring to annexure 1 to
the Writ Petition, it is submitted that in
meeting dated 26.11.92 it was resolved
that Petitioner may be appointed in place
of Gorakh Nath Verma and approval for
financial sanction may be taken from
District
Inspector
of
Schools.
This
resolution is signed only by Sri B.L. Rai
alleged to be Chairman but it does not
show who were the members of the
committee of management who had
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
52
attended meeting dated 26.11.92 and
other person except B.L. Rai is signatory
of said resolution. Annexure-2 is the
appointment letter of the petitioner dated
27.11.92 said to have been issued in
pursuance of resolution by the Committee
of
Management
dated
26.11.92,
appointing the petitioner on the post of
Assistant
Clerk
on
ad-hoc
basis.
According to the letter dated 1.12.1992
annexure 3 to the petition it appears that
the petitioner joined as Assistant Clerk
and by letter dated 21.12.1992 (Annexure
4 to the writ petition) the Manager had
requested
the
District
Inspector
of
Schools for grant of financial approval to
the appointment of petitioner, Amar Nath.

5. The counsel for the petitioner
submits
that
annexure-5
is
the
representation filed by the petitioner
before the District Inspector of Schools
Deoria in which he has requested the
District Inspector of Schools to accord
financial approval to the appointment of
the petitioner.

6. A perusal of letter dated 9.2.1993
and Annexure no.7 to the writ petition
sent by District Inspector of Schools,
Deoria to the manager of the institution
shows that a query was made by the
District Inspector of Schools from the
management of the college as to how the
appointment of the petitioner had been
made as there was no post of clerk vacant
for being filled up by direct recruitment
on the date of the resolution. Letter dated
9.2.1993 is as under:

"vkids i=kad 3786@92&93 fnuk¡d 21-12-92
rFkk i=kad 3787@92&93 }kjk la0 df.kZd inksa ij dh
x;h rnFkZ fu;qfDr;ksa ij foRrh; lgefr fuEu vkifRr;ksa ds
dkj.k fn;k tkuk lEHko ugha gS d`i;k vkifRr;ksa dk
fujkdj.k djsa rkfd fuLrkj.k fd;k tk lds A

1- vkids fo|ky; esa izLrko frfFk dks l0 fyfid dk in
fjDr ugha gS fQj fdl izdkj ls Jh vej ukFk ,oa Jh
HkjrsUnz th 'kekZ dh fu;qfDr dh x;h A
2- f'k{k.ksRrj deZpkfj;ksa ds Hkfo"; esa ysus okyh fjfDr ij
50% dksVs ds vUrZxr prqFkZ oxhZ; deZpkfj;ksa ds
izksUufr ij fopkj fd;k tkuk pkfg, Fkk tks ugha fd;k
x;k gS A

vr% Hkfo"; esa gksus okyh fjfDr;ksa ij fjfDr frfFk ds
i'pkr mi;qZDr fcUnqvksa ij fopkj djrs gq, izdj.k izsf"kr
djsaA

Hkonh;

egsUnz flag

ftyk fo|ky; fujh{kd] nsofj;k A"

7. By Annexure 8 to the writ petition
the financial sanction was given to the
appointment of Bhartendu Ji Sharma.

8. From the counter affidavit filed
on behalf of the District Inspector of
Schools it appears that the petitioner
could not have been granted financial
sanction due to reason that the vacancy on
which he was claiming appointment as
direct recruitment was to be filled-up by
way of promotion from eligible class IV
employees. Attention of the Court has
also been drawn to paragraph 3 of the
counter affidavit by the Standing Counsel
in which it has been stated that one Sri
Kuber Chauhan has already filed writ
petition No. 28083 of 1995 and the writ
petition filed by the petitioner claiming
appointment on direct recruitment for a
post under promotion quota was not
maintainable as the vacancy in question
was to be filled-up by way of promotion
the District Inspector of Schools has not
accorded approval to the appointment of
the petitioner and he is not entitled to the
salary from the District Inspector of
Schools.
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1 All] Amar Nath V. D.I.O.S., Deoria and another
53

9. Admittedly appointment of the
petitioner having been made by the
committee of management and having
worked since 1992 cannot be left in a
lurch without payment. It appeals to
reason and justice that one who has
appointed him should pay his salary. The
committee of management had appointed
the petitioner it is responsible for payment
of salary to him. It is also been apparent
from the resolution dated 26.11.1992
(Annexure no.1 to the writ petition) and
letter of appointment dated 27.11.1992
(Annexure no.2 to the writ petition) that
payment of salary of the petitioner by
District Inspector of Schools was subject
to approval of financial sanction by the
District Inspector of School, which has
not accorded by him from the record.

10. It appears that the petitioner's
appointment was fraudulent and dehors
the rules. Such appointment can not give
any right to the petitioner to claim salary
from the District Inspector of Schools. At
best the petitioner can claim salary from
the committee of management which had
appointed him.

11.

In
view
of
facts
and
circumstances of the case the writ petition
has no force and it is liable to be
dismissed.

12. For the reasons stated above, it is
not a fit case for interference by this Court
under article 226 of the Constitution of
India. The writ petition fails and is
dismissed. It is however, provided that the
petitioner may claim his salary for the
period
he
had
worked
from
the
Committee
of
Management
of
the
institution.

No order as costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 5.8.2003

BEFORE
THE HON'BLE U.S. TRIPATHI, J.
THE HON'BLE D.P. GUPTA, J.

Criminal Appeal No. 1850 of 1981

Lokendar and others

...Appellants
 (In Jail)
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellants:
Sri G.S. Chaturvedi
Sri Sanjai Srivastava
Sri S.K. Chaturvedi
Sri S.S. Chauhan
Sri Lalji Sahai Srivastava

Counsel for the Opposite Party:
Sri Mohan Chandra
Sri Ghanshyam Joshi
A.G.A.

Indian Panel Code 1860-circumstantial
evidence- Section 302, 148, 149 & 14713 accused convicted and sentencedagainst judgment/order appeal filedprosecution contended spear and fire
arms injury-Medical Report denied such
injury-Enemity and parti bandi providedNo independent witness-no evidence
adduced in defence-conviction can not
sustain-appeal allowed.

Held- para 33 and 34

After careful scrutiny of the evidence of
the eye-witnesses we find that the
prosecution has proved involvement of
the appellants Jagdish, Pyare, Hakim,
Nathi, Govind, Radhey Shyam and Salig
Ram in the murder of the deceased in
prosecution of common object of their
unlawful assembly.