# Ashika Prasad Shukla v. The District Inspector of Schools & Ors

- **Citation:** (2024) 3 ILRA 452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-21
- **Case number:** Special Appeal No. 1131 of 2018
- **Bench:** Ashwani Kumar Mishra, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashika-prasad-shukla-v-the-district-inspector-of-schools-ors-51655
- **Pages:** 7

## Headnote

A. Service Law - UP Secondary Education
Service Selection Boards Act, 1982 - UP
Secondary education Services Commission
(Removal of Difficulties) Second Order,
1981 - Cl. 2 (3) (ii) and (iii) - Post of
Assistant Teacher - Payment of salary -
Appointment against short term vacancy -
Papers was sent for approval, but no
communication of decision on approval
was intimated to the Committee within a
period of seven days or even after expiry
of seven days - Issuance of appointment
letter before approval - Effect - Principle
of deemed approval - Applicability - Held,
learned Single Judge is not justified in
3 All. Ashika Prasad Shukla Vs. The District Inspector of Schools & Ors.
453
dismissing the writ petition only on the
ground that appointment was offered to
the
appellant-petitioner
even
before
deemed approval could be granted to such
appointment.
The
appointment
of
appellant-petitioner made on 05.081992
become effective only from the date of
deemed approval. (Para 10 and 13)

Appeal allowed. (E-1)

List of cases cited :-

## Text

452 INDIAN LAW REPORTS ALLAHABAD SERIES
impermissible in view of the observations
made by the Hon'ble Supreme Court in the
case
of
Managing
Director,
ECIL,
Hyderabad (supra).

11. We are of the considered opinion
that for the limited purposes of enabling the
employer to conduct proper enquiry a
direction ought to have been issued to
reinstate the respondent-petitioner for the
purposes of conduct of enquiry. In the
event, charges were found serious, it would
have to be left to the discretion of the
employer either to take work from the
employee concerned or to place him under
suspension. The proceedings of enquiry
would have to be restored to the stage from
where it had gone bad. Question of paying
arrears of salary ought to have been
deferred to be decided on the basis of the
fresh enquiry. Since such course has not
been followed by the learned Single Judge,
therefore to that extent, we are inclined to
interfere in the judgment of the learned
Single
Judge
and
consequently
the
direction issued by the Writ Court stands
modified to such extent. We are informed
that subsistence allowance has already been
paid to the respondent petitioner. We,
therefore, provide that till conclusion of
fresh enquiry in Rule 7, the appellant
employer shall continue to pay subsistence
allowance in case they opt to place the
respondent petitioner under suspension. We
also provide that the enquiry proceedings
would be undertaken expeditiously and
concluded within a period of four months
from today. The respondent undertakes to
co-operate in the enquiry.

12. In light of the above
observations
and
subject
to
the
modification made in the judgment of
learned Single Judge, this special appeal
stands disposed of.

13. Lastly we are informed that
contempt proceedings have been initiated
by the respondent for enforcement of the
judgement of the Writ Court in which 4th
March of 2024 is the date fixed for
personal appearance of officers. Since we
have modified the judgment of the learned
Singe Judge it shall be open for the
appellants to inform the contempt court
about the order passed today and seek
appropriate protection.
----------
(2024) 3 ILRA 452
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2024
BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 1131 of 2018

Ashika Prasad Shukla ...Appellant
Versus
The District Inspector of Schools & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Shivendu Ojha, Sri Radha Kant Ojha

Counsel for the Respondents:
C.S.C., Sri Satyendra Chandra Tripathi

A. Service Law - UP Secondary Education
Service Selection Boards Act, 1982 - UP
Secondary education Services Commission
(Removal of Difficulties) Second Order,
1981 - Cl. 2 (3) (ii) and (iii) - Post of
Assistant Teacher - Payment of salary -
Appointment against short term vacancy -
Papers was sent for approval, but no
communication of decision on approval
was intimated to the Committee within a
period of seven days or even after expiry
of seven days - Issuance of appointment
letter before approval - Effect - Principle
of deemed approval - Applicability - Held,
learned Single Judge is not justified in
3 All. Ashika Prasad Shukla Vs. The District Inspector of Schools & Ors.
453
dismissing the writ petition only on the
ground that appointment was offered to
the
appellant-petitioner
even
before
deemed approval could be granted to such
appointment.
The
appointment
of
appellant-petitioner made on 05.081992
become effective only from the date of
deemed approval. (Para 10 and 13)

Appeal allowed. (E-1)

List of cases cited :-

1. Ashika Prasad Shukla Vs D.I.O.S. & ors.;
1998 (3) UPLBEC 1722

2. A. K. Pathshala Vs Smt. M.D. Agnihotri; 1971
Alld.LJ 983

3. Lalit Mohan Misra Vs D.I.O.S.; 1979 All. 1075

4. Pramod Kumar Pandey Vs D.I.O.S.; 2019 (11)
ADJ 127

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. This appeal is directed against the
judgment and order dated 31.10.2018,
passed by learned Single Judge in Writ-A
No.5050 of 2001, whereby the claim of
appellant-petitioner of appointment as
Assistant Teacher is turned down primarily
on the ground that the procedure prescribed
in Clause 2(3)(ii)&(iii) of Uttar Pradesh
Secondary education Services Commission
(Removal of Difficulties) Second Order,
1981 (hereinafter referred to as 'Second
Order of 1981') was not followed and
consequently the appointment of appellantpetitioner was nullity.

2. There exists an educational
institution known as Krishak Inter College,
Kashauta,
Allahabad
(Prayagraj)
[hereinafter referred to as 'Institution'],
which is duly recognized under the
provisions of U.P. Intermediate Education
Act, 1921 (hereinafter referred to as 'Act of
1921') and provisions of U.P. High Schools
and Intermediate Colleges (Payment of
Salaries of Teachers and other Employees)
Act, 1971 are applicable upon it. The
provisions of U.P. Secondary Education
Service
Selection
Boards Act,
1982
(hereinafter referred to as 'Act of 1982')
regulated the appointment of Teachers in
the Institution.

3. Vide letter/order dated 13.11.1991,
which was effective from 01.04.1991, one
post of Principal; two post of L.T. Grade
Teacher; and four post of C.T. Grade
Teacher were sanctioned by the competent
authority in the Institution. The senior most
teacher in the Institution, namely Surendra
Prasad Tripathi, was appointed as ad-hoc
Principal. Resultantly, a short-term vacancy
on the post of Assistant Teacher (L.T.
Grade) came into existence against which
the appellant-petitioner claims to have been
appointed on 05.08.1992 under the Second
Order of 1981.

4. Though the appellant-petitioner
claimed to have been validly appointed but
his salary was not paid. Consequently, he
filed a Writ Petition No.31694 of 1994,
which was dismissed on 31.10.1995,
observing that the procedure laid down by
the Full Bench in the case of Radha Raijada
vs. State of U.P. and others, 1994 UPLBEC
1551 regarding publication of vacancy in
two newspapers etc. has not been followed.
This order of learned Single Judge has been
reversed in Special Appeal No.948 of 1995
vide judgment dated 18.08.1998. The
Division Bench held that the procedural
requirement made applicable in case of
short-term vacancy in Radha Raijada's case
(supra) was to apply prospectively and
454 INDIAN LAW REPORTS ALLAHABAD SERIES
since
the
appointment
of
appellantpetitioner
was
made
prior
to
such
judgment,
therefore,
the
rigours
of
procedure laid down in Radha Raijada's
case (supra) would not be attracted. It was
thereafter that the matter was again
considered and rejected by the District
Inspector
of
Schools,
Allahabad
(hereinafter referred to as 'Inspector') vide
his order dated 17.11.1998. Appellantpetitioner then filed Writ Petition No.40140
of 1998 challenging the order dated
17.11.1998, which was allowed relying
upon the previous adjudication made in the
special appeal. The authorities, however,
again reiterated their stand while rejecting
the claim of appellant's appointment, which
came to be challenged by the appellantpetitioner in Writ-A No.5050 of 2001.

5. Writ Petition No.5050 of 2001 was
entertained and an interim protection was
granted. The appellant-petitioner continued
to work under the interim order and also
received salary. We are informed that he
has attained the age of superannuation on
31.03.2020. The writ petition, however,
came to be dismissed by the learned Single
Judge vide impugned judgment and order
31.10.2018, wherein the facts relating to
appointment and creation of vacancy etc.
have been elaborately noticed. In para 17 of
the judgment learned Single Judge has
crystallized following three issues that
required examination in the writ petition:-

"(1) Whether ban imposed
by Government Order dated 29.06.1991
could be extended to short term vacancies?

(2) Whether ad hoc appointment
of petitioner was validly made by following
relevant Removal of Difficulties Order i.e.
'Second Order'?

(3) Whether vacancy in question
could have been treated to be a substantive
vacancy or short term vacancy? "

6. So far as the issue no.1 is
concerned, learned Single Judge has
categorically held that the ban imposed
vide Government Order dated 29.06.1991
could not have been extended to short-term
vacancy. The first issue, therefore, stands
adjudicated in favour of the appellantpetitioner. The other two issues have been
dealt with in para 19 of the judgment.
Clause 2 of the Second Order of 1981 is
relied upon which is quoted hereinafter:-

"2. Procedure for filling up shortterm vacancies.-(1) If short-term vacancy
in the post of a teacher caused by grant of
leave to him or on account of his
suspension duly approved by the District
Inspector of Schools or otherwise, shall be
filled by the Management of the Institution
by promotion of the permanent senior-most
teacher of the institution, in the next lower
grade. The Management shall immediately
inform the District Inspector of Schools of
such promotion along with the particulars
of the teacher so promoted.

(2) Where any vacancy referred
to in Clause (1) cannot be filled by
promotion, due to non-availability of a
teacher in the next lower grade in the
institution,
possessing
the
prescribed
minimum qualifications, it shall be filled by
direct recruitment in the manner laid down
in Clause (3).

(3) (i) The management shall
intimate the vacancies to the District
Inspector of Schools and shall also
immediately notify the same on the notice
board of the institution, requiring the
candidates to apply to the Manager of the
Institution along with the particulars given
in Appendix "B" to this Order. The
selection shall be made on the basis of
quality point marks specified in the
Appendix to the Uttar Pradesh Secondary
Education Services Commission (Removal
3 All. Ashika Prasad Shukla Vs. The District Inspector of Schools & Ors.
455
of Difficulties) Order, 1981, issued with
Notification No. Ma-1993/XV-7(79)-1981,
dated July 31, 1981, hereinafter to be
referred to as the First Removal of
Difficulties Order, 1981. The compilation
of quality point marks shall be done under
the personal supervision of the Head of
Institution.

(ii) The names and particulars of
the candidate selected and also of other
candidates and the quality point marks
allotted to them shall be forwarded by the
Manager to the District Inspector of
Schools for his prior approval.

(iii) The District Inspector of
Schools shall communicate his decision
within seven days of the date of receipt of
particulars by him failing which the
Inspector will be deemed to have given his
approval.

(iv) On receipt of the approval of
the District Inspector of Schools or, as the
case may be, on his failure, to communicate
his decision within seven days of the
receipt of papers by him from the Manager,
the Management shall appoint the selected
candidate and an order of appointment shall
be issued under the signature of the
Manager.

Explanation-For the purpose of
this Paragraph-

(i) the expression "senior-most
teacher" means the teacher having longest
continuous service in the institution in the
Lecturer's
grade
or
the
Trained
prabhatgraduate (L.T.) grade or Trained
under-graduate (C.T.) grade or J.T.C. or
B.T.C. grade as the case may be;

(ii) in relation to institution
imparting instructions to women, the
expression ''District Inspector of Schools'
shall mean the Regional Inspectress of
Girls' Schools;

(iii) short-term vacancy which is
not substantive and is of a limited
duration." (emphasis added) "

7. Learned Single Judge after
referring to the series of judgments
delivered by this Court has ultimately
opined in para 33 that since appointment
letter to the appellant-petitioner was issued
on the date of selection itself i.e.
05.08.1992 and he was actually joined on
the next day i.e. 06.08.1992, therefore,
there was no compliance of the procedure
laid down in Clause 2(3)(ii) of the Second
Order of 1981. Learned Single Judge has
noticed that the appointment was not
approved by the educational authority and
occasion had not arisen even for deemed
approval of short-term appointment of the
appellant-petitioner.

8. Learned counsel for the appellantpetitioner has invited our attention to the
previous judgment delivered in the case of
appellant-petitioner reported in 1998 (3)
UPLBEC 1722, wherein import of nonapproval to appointment against short-term
vacancy was examined. In para 15 and 16
of the judgment the Division Bench
observed as under:-

"15. The next question that falls
for
consideration
is
whether
the
appointment of the petitioner-appellant
could still stand invalidated on the ground
that it was made without prior approval of
the District Inspector of Schools. Sri
Yatindra Singh placed reliance on a
Division Bench decision of this Court in A.
K. Pathshala v. Smt. M. D. Agnihotri, 1971
All LJ 983, wherein it was held, on
construction of Section 16F (1) of the U. P.
Intermediate Education Act, 1921, that
appointment without prior approval by the
Competent Authority would, in the eye of
456 INDIAN LAW REPORTS ALLAHABAD SERIES
law, be no appointment. The ratio of the
said decision as held by a subsequent
Division Bench in Lalit Mohan Misra v.
District Inspector of Schools. 1979 All LJ
1025, is that a "person gets the status of a
teacher
when
requisite
formality
is
completed." The relevant observations are
as under :

"Without approval the person
does not get the status of a teacher even
though the approval is to be followed by
formal letter but in the absence of formal
letter the person gets the status of a teacher
after approval to the appointment is given
by the District Inspector of Schools. The
appointment of a person as a teacher
becomes effective only from the date
approval is given and even if a person is
allowed to work before that the same has
no recognition under the U. P. Intermediate
Education Act."

16. Paragraph 2 (3) (iv) of the
Second Removal of Difficulties Order is
not phrased in a prohibitory language as
was the language used in Section 16F (1) of
the U. P. Intermediate Education Act, 1921.
The words 'prior approval' have been used
in sub-clause (ii) of paragraph 2 (3) of the
Second Removal of Difficulties Order and
a conjoint reading of sub-clauses (it), (Hi)
and (iv) of clause (3) of paragraph 2. no
doubt, leads to an inescapable conclusion
that the appointment would be issued under
the signature of the Manager only on the
approval having been communicated by the
District Inspector of Schools within seven
days of the receipt of the papers or where
the approval is deemed to have been
accorded as visualised by sub-clause (Hi)
of clause (3) of paragraph 2 of the Second
Removal of Difficulties Order. However,
appointment, if made prior to approval or
deemed approval, would become effective
from the date of approval or deemed
approval as held by the Division Bench of
this Court in Lalit Mohan Misra (supra).
There is nothing on the record to connote
that
prerequisite
conditions
attracting
deemed approval were not satisfied in the
instant case. The learned single Judge has
also not addressed himself to this facet of
the matter and the Judgment under appeal
on this score too cannot be sustained."

9. The Division Bench has noticed the
language employed in Clause 2(3)(ii)&(iii)
of the Second Order of 1981 as per which
selection on a short-term vacancy could be
made on the basis of quality point marks
specified in the appendix to the Second
Order of 1981. As per Clause 2(3)(ii), the
names
and
particulars
of
selected
candidates and other candidates alongwith
quality point marks allotted to them shall
be forwarded by the Manager to the
Inspector, who shall communicate his
decision within seven days as per Clause
2(3)(iii) and in the event no decision is
intimated by the Inspector, within seven
days of the receipt of particulars by him,
the approval shall be deemed to have been
granted.

10. In the facts of the present case, the
papers relating to selection proceedings
alongwith quality point marks and other
details were sent by the Manager to the
Inspector on 12.08.1992 in terms of Clause
2(3)(ii) of the Second Order of 1981. It is
also admitted that within a period of seven
days or even after expiry of seven days no
decision was intimated to the management
regarding
appointment
of
appellantpetitioner. It is therefore to be seen as to
whether the appointment made even before
expiry of seven days period could be
treated as legal or not.

11. In the previous round of litigation
inter se between the parties the Division
3 All. Ashika Prasad Shukla Vs. The District Inspector of Schools & Ors.
457
Bench of this Court had relied upon the
judgment of this Court in A. K. Pathshala
vs. Smt. M.D. Agnihotri, 1971 Alld.LJ 983,
which
recognized
the
principle
that
appointment of a teacher would become
effective only from the date approval is
given to it. In law any working prior to the
date of approval or deemed approval
cannot be counted or relied upon. In the
facts of the present case, papers relating to
selection had been sent to the Inspector for
his approval on 12.08.1992 and since for a
period of one week no decision was
intimated as such the approval would be
deemed to have been given in law to the
selection for appointment on the expiry of
one week. It is only with the deemed
approval
granted
to
the
appellant's
appointment that legality would be attached
to the appointment offered to him.

12. The mere fact that appointment
letter was issued even before deemed
approval was accorded to the appellantpetitioner would not mean that appointment
offered to the appellant-petitioner would
become invalid. In the previous round of
litigation, inter-se between the parties, this
Court had relied upon the judgment of this
Court in Lalit Mohan Misra vs. D.I.O.S.,
1979 All. 1075, which held the approval to
be the date when recognition is granted to
the teacher. This Court also held that
appointment made prior to approval or
deemed approval would become effective
only from the date of approval. A finding
was also returned that deemed approval had
occurred. Similar view has also been taken
by the Division Bench of this Court in
Pramod Kumar Pandey vs. D.I.O.S., 2019
(11) ADJ 127. In paragraph 17, this Court
held as under:-

"17. In the present case, it is
admitted fact that the papers relating to
selection
and
appointments
of
the
appellant-petitioners were sent to DIOS by
the Management on 17.10.1997 for his
grant of approval after having issued letters
of appointment to the appellant-petitioners.
It is also not in dispute that the DIOS did
not bestow his consideration on these
papers within statutory specified period of
seven days. As such the appointment of
appellant-petitioners stood approved by
deemed fiction of law and in view of the
law settled by this court in above
authoritative pronouncements (Lalit Mohan
Misra and Another (supra), and Abhay Pal
Singh (supra)]."

13. In that view that matter, we find
that the learned Single Judge is not justified
in dismissing the writ petition only on the
ground that appointment was offered to the
appellant-petitioner even before deemed
approval
could
be
granted
to
such
appointment.
The
appointment
of
appellant-petitioner made on 05.081992
become effective only from the date of
deemed approval i.e. upon expiry of one
week from 12.08.1992. The authorities,
therefore, were not justified in non-suiting
the appointment of appellant-petitioner for
such reason.

14.

Consequently,
this
appeal
succeeds and is allowed. Judgment and
order dated 31.10.2018, passed by learned
Single Judge in Writ-A No.5050 of 2001, is
hereby set aside. Respondents shall treat
the appointment of appellant-petitioner to
be validly made in terms of Clause
2(3)(ii)&(iii) of the Second Order of 1981
upon expiry of seven days period from the
date when particulars of selected candidates
alongwith quality point marks were sent to
the Inspector i.e. 12.08.1992, treating it to
be a case of deemed approval. The
respondents shall also accord consideration
458 INDIAN LAW REPORTS ALLAHABAD SERIES
to the appellant's case for regularization in
accordance with the applicable provisions
of the Act of 1982, within a period of two
months from the date of presentation of a
certified copy of this order. Since the
appellant-petitioner has superannuated on
31.03.2020, his claim for superannuation
benefits as per his entitlement shall be dealt
with, in accordance with law, within a
further period of six weeks, thereafter.
----------
(2024) 3 ILRA 458
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2024
BEFORE
THE HON'BLE PRAKASH PADIA, J.

Writ A No. 1191 of 2024

Sanoj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anand Tiwari

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Government Servant
(Disciplinary and Appeal) Rules, 1999 -
Rules 7, 8 & 9 - Termination - Disciplinary
enquiry - Charged employee denied the
charges, but neither the documents relied
upon by the inquiry Officer was supplied
nor the list of the witnesses was given to
the petitioner - No show cause notice was
issued - Effect - Held, if the charged
employee denies the charges levelled
against him, the Inquiry Officer appointed
by
the
Disciplinary
Authority,
shall
proceed to call the witnesses proposed in
the chargesheet and record their oral
evidence in presence of the charged
employee and shall give an opportunity to
the charged employee to cross-examine
such witnesses - Held further, the Inquiry
Officer is in the position of an independent
adjudicator and acting in a quasi-judicial
authority with a duty enjoined upon him
that
even
in
the
absence
of
the
delinquent, he is to see whether the
unrebutted evidence is sufficient to hold
that the charges are proved - The
procedure prescribed under Rule-7 has
not been followed by the Inquiry Officer.
(Para 4, 8, 12 and 18)

Writ petition allowed. (E-1)

List of cases cited :-

1. St.of U.P. & ors.Vs Saroj Kumar Sinha; (2010)
2 SCC 772

2. Ministry of Finance & anr.Vs S.B. Ramesh;
AIR 1998 SC 853

3. Radhey Kant Khare Vs U.P. Cooperative
Sugar Factories Federation Ltd.; 2003 (1) AWC
704

4. Kaptan Singh Vs St. of U.P. & anr.; 2014 0
SCC (All) 868

5. Writ A No. 71261 of 2005; Brijesh Kumar
Tripathi Vs St. of U.P. & ors. decided on
21.11.2005

6. Writ A No. 3786 of 2022; St. of U.P. & ors. Vs
St. Public Service Tribunal & ors. decided on
25.3.2022

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Anand Tiwari, learned
counsel for petitioner and learned Standing
Counsel for the respondent-State.

2. The petitioner has preferred the
present writ petition inter-alia with the
following prayer:-

"Issue a writ, order or direction
in the nature of certiorari quashing the
impugned
termination
order
dated
30.12.2023 passed by the respondent no. 3.