# Anil Kumar v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 673
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-25
- **Case number:** Civil Misc. Writ Petition No. 44384 of 2009
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-v-state-of-u-p-and-others-41415
- **Pages:** 4

## Headnote

Service of Teachers Rules 1978-Rule-28Temporary appointment of Head master
by management-could be extended 6
months only-term expired in the month
of May 2009-come to an end on 30.6.09No further extension permissible.

Held: Para 9

Consequently
this
Court
holds
that
petitioner is not entitled to any further
extension, inasmuch as period of six
months
subsequent
to
temporary
appointment would expire in the month
of May, 2009 and since the academic
674 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

session for the relevant period would be
2008-09, the same inturn would come to
an end on 30th June, 2009. Therefore,
there cannot be any further extension,
even under the proviso to Rule-20 of
Rules, 1978 in the facts of the case.

## Text

2 All] Anil Kumar V. State of U.P. and others

673
Sadar Munsarim. The entire counter
affidavit filed by respondents no. 2 and 3
nowhere show as to how and in what
circumstances the respondent no. 3 could
be
appointed
as
Sadar
Munsarim
particularly
when
there
was
no
recommendation that a suitable clerk is
not available for promotion to the post of
Sadar Munsarim. On the contrary, it
appears that the selection committee
found one Sri Sukhu Prasad who was
senior most person in clerical staff
working in the next lower grade suitable
for promotion to the post of Sadar
Munsarim but despite that the District
Judge was chose to make respondent no. 3
as
Incharge
Sadar
Munsarim
and
thereafter made him permanent on the
post of Sadar Munsarim and later on
promoted him on the post of Senior
Administrative
Officer.
This
is
a
circuitous way adopted by the District
Judge to promote and confirm respondent
no. 3 with undue benefit to give him
promotion on the post of Sadar Munsarim
as well as Senior Administrative Officer
though it was not permissible under the
Rules. The question as to when a
Stenographer can be considered for
promotion to the post of Grade I has been
considered by Lucknow Bench of this
Court in Civil Misc. Writ Petition No.
1267 of 1988, Balwant Singh Vs. State
of U.P. and others and the Court held
that promotion to the post of Sadar
Munsarim is confined to clerical staff but
when the clerical staff is not found
suitable for promotion to the post of Sadar
Munsarim only then a Stenographer may
be considered and that promotion also
cannot
be
made
without
previous
approval of the High Court.

15. I, therefore, do not find that the
promotion of respondent no. 3 has been
made in accordance with law. In the
circumstances,
the
writ
petition
is
allowed. The impugned orders dated
31.07.2004 and 27.05.2006 (Annexures-6
& 7 to the writ petition) are hereby
quashed. The District Judge shall proceed
to make promotion to the post of Sadar
Munsarim
in
accordance
with
law
expeditiously. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 44384 of 2009

Anil Kumar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri D.P. Singh
Smt. Archana Singh
Sri S. Niranjan

Counsel for the Respondents:
Sri K. Ajit
S.C.

U.P. Recognised Basic School (Junior
High School) Recruitment and Condition
Service of Teachers Rules 1978-Rule-28Temporary appointment of Head master
by management-could be extended 6
months only-term expired in the month
of May 2009-come to an end on 30.6.09No further extension permissible.

Held: Para 9

Consequently
this
Court
holds
that
petitioner is not entitled to any further
extension, inasmuch as period of six
months
subsequent
to
temporary
appointment would expire in the month
of May, 2009 and since the academic
674 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

session for the relevant period would be
2008-09, the same inturn would come to
an end on 30th June, 2009. Therefore,
there cannot be any further extension,
even under the proviso to Rule-20 of
Rules, 1978 in the facts of the case.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri D.P. Singh, learned
Senior
Advocate,
assisted
by
Smt.
Archana Singh, learned counsel for the
petitioner, Sri K. Ajit, learned counsel for
respondent nos. 6 and 7 and learned
Standing
Counsel
for
the
Staterespondents.

2. Assistant Director of Education
(Basic), Aligarh/Agra Division, Agra
under the impugned order dated 22nd
July, 2009 has held that temporary
appointment of the petitioner as head
master of a recognised junior high school,
referable to Rule 20 of Uttar Pradesh
Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service
of
Teachers)
Rules,
1978
(hereinafter referred to as the 'Rules,
1978') could be made for a period of six
months only. The said period of six
months expired long back inasmuch as he
was appointed on 30th November, 2008,
under the approval dated 31st December,
2008. The Committee of Management,
however, illegally forwarded a resolution
for extension of the appointment of the
petitioner, which was approved by the
Basic Shiksha Adhikari on 3rd January,
2009. He has directed that the order of
approval dated 3rd July, 2009 granted by
the Basic Shiksha Adhikari, wherein
temporary appointment of the petitioner
on the post of headmaster was again
extended for six months, was illegal and
is therefore, set aside. A direction to hold
fresh selection for regular appointment on
the post of principal of the institution and
in the meantime charge of the post of
principal being given to the senior most
teacher of the institution has also been
issued.

3. Learned counsel for the petitioner
with reference to proviso to Rule-20 of
Rules, 1978 contends that such temporary
appointment could be extended till the
end of the academic session and in the
facts of the present case, the academic
session would expire only on 30th June,
2010.

4. The contention so raised on behalf
of the petitioner is objected to by the
respondents, on the ground that proviso to
Rule-20 has to be read along with the
main provision. He contends that the said
proviso would be applicable only when
the period of six months expires during an
academic
session,
and
in
that
circumstance
appointment
can
be
extended till the end of the academic
session, the purpose being that the work
of the institution may not suffer in
absence of principal/headmaster, during
mid-academic session. He clarifies that
such extension of appointment cannot be
overstretched so as to read that even after
expiry of six months, further extension for
next academic session can be asked for or
granted. He further contended that the
petitioner is not possessed of the
prescribed minimum qualification qua the
post of Principal.

5. I have considered the submissions
made on behalf of the parties and have
gone through the records of the present
writ petition.

6. I am of the considered opinion
that the contention raised on behalf of the
2 All] Anil Kumar V. State of U.P. and others

675
respondents has force. Rule-20 of Rules,
1978 reads as follows:

"20.
Temporary
appointment.---
Notwithstanding anything contained in
these rules, the Management may, with
the previous approval of the District
Basic Education Officer, appoint for a
period not exceeding six months any
person as Headmaster or Assistant
Teacher, as the case may be, provided
that no person shall be so appointed,
unless
he
possess
the
minimum
qualification prescribed for the post :
Provided further that the District
Basic
Education
Officer
may,
for
reasons to be recorded, extend the
aforesaid period of six months for a
period co-terminous with the end of the
academic session in which extension is
granted."

7. From a bare reading of the
aforesaid Rule, it would be apparent that
power to make temporary appointment
with the approval of the District Basic
Education Officer without following the
procedure
prescribed
for
regular
appointment by direct recruitment on the
post of Headmaster has to be for a limited
duration of six months only with a
condition that the person must be
possessed of prescribed qualification.
Proviso to Rule-20 confers a power for
extension of such period of six months
upto the period co-terminous with the end
of the academic session in which
extension is granted. Meaning thereby
that
if
the
term
of
temporary
headmaster/teacher i.e. six months period
expires, during mid academic session,
than such temporary teacher/headmaster
may be granted extension for the period
co-terminous with the end of the
academic session. For example, if the
term
of
six
months
of
a
teacher/headmaster is to expire in the
month of April, he may be granted
extension till 30th June of the same year
i.e. when the academic session would
expire.

8. Proviso to Rule-20 cannot be
overstretched, as suggested by the learned
counsel for the petitioner and cannot
confer a right for any extension of
temporary appointment for any period
after end of the academic session. The
relevant
point
to
determine
the
applicability of the proviso to Rule 20 is
the date on which the period of six
months expires and it is with reference to
this date only that further extension of
temporary appointment can be granted for
the remaining term of the said academic
session i.e. till the end of the academic
session in which the period of six months
expires.

9. Consequently this Court holds
that petitioner is not entitled to any further
extension, inasmuch as period of six
months
subsequent
to
temporary
appointment would expire in the month of
May, 2009 and since the academic session
for the relevant period would be 2008-09,
the same inturn would come to an end on
30th June, 2009. Therefore, there cannot
be any further extension, even under the
proviso to Rule-20 of Rules, 1978 in the
facts of the case.

10. This Court is not inclined to
enter into the issue as to whether the
petitioner is possessed of the prescribed
minimum qualification or not. The said
issue is left open to be agitated at
appropriate stage.
676 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

The writ petition lacks merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 44297 of 1992

Suresh Prasad

...Petitioner
Versus
District Magistrate & others ...Respondents

Counsel for the Petitioner:
Sri Dr. R.G. Padia
Sri Prakash Padia

Counsel for the Respondent:
S.C.

Constitution of India-Article-226: Writ of
Mandamus -petitioner was appointed for
42 days-extended from time to timeafter 17.6.1992 no extension grantedappointment made dehores the Ruleworking pursuant to interim order for
four month only-no mandamus can be
issued-either for continuance in service
or regularization.

Held: Para 15

Something which is not conferred by
rules cannot be given by means of a
judicial order since it would amount to
direct the respondents to act in the teeth
of
the
statutory
rules
which
is
impermissible, therefore, this request is
also rejected.
Case law discussed:
2009 (1) UPLBEC 321, 1975 (2) SCC 831, 1992
SC 2070, 2007(2) ESC 987, 1975 Allahabad
280, 1986 (4) LCD 196, 1994 Allahabad 273,
2009 (2) SC 520, 2006(4) SCC 1, 2009(6) SC
463

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Dr. R.G. Padia, learned
Senior Advocate assisted by Sri Prakash
Padia for the petitioner and learned
Standing Counsel for the respondents.

2. The petitioner has sought the
following the reliefs:

"A. a writ, order or direction,
including a writ in the nature of
Mandamus commanding the respondent
to permit the petitioner to continue as
Class IV employee till such time regular
selection is made by the respondent in
case
a
permanent vacancy exists in respect of a
Class IV post with respondent no. 3 or in
case any person junior to the petitioner is
being permitted to work as Class IV
employee;
B. a writ, order or direction
including a writ in the nature of
mandamus commanding the respondent to
pay salary to the petitioner month-bymonth as and when it falls due along with
arrears of salary w.e.f. 18.6.1992;
C. a writ, order or direction
including a writ in the nature of
mandamus commanding the respondents
to pass appropriate orders in respect of
the judgment passed by this Hon'ble
Court in a writ petition filed by the
petitioner dated 31.08.1992;
D. any
other
writ,
order
or
direction, which this Hon'ble Court may
deem fit and proper in the circumstances
of the case;
E.
 award costs of the writ petition
throughout to the petitioner."

3. It appears that the petitioner was
engaged for a limited tenure from time to
time and his last engagement was for the