# Ashok Singh & Ors v. D.I.O.S

- **Citation:** (2023) 9 ILRA 391
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-24
- **Case number:** Writ-A No. 8466 of 1989
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-singh-ors-v-d-i-o-s-50803
- **Pages:** 9

## Headnote

Service Law - U.P. Secondary Education
Service
Commission
(Removal
of
Difficulties) Order, 1991 - Section 2 - U.P
Secondary Education Services Selection
Boards Act, 1982 - Sections 18, 33-A(1-C)
- Termination of ad hoc appointment -
392 INDIAN LAW REPORTS ALLAHABAD SERIES
Two posts of Assistant Teachers (L.T.
Grade) fallen vacant in institution and
Manager of College informed DIOS with
request to fill up vacancies or to issue
directions,
however,
DIOS
neither
appointed any reserve pool teacher nor
took
any
steps,
Committee
of
Management made ad hoc appointments,
issued notification and after considering
merit of applicants, found petitioner No.1
suitable, one post was filled up by
candidate of Scheduled Caste Category,
petitioner No.2 selected for said post,
resolution
passed,
DIOS
accorded
approval - After receiving complaints,
DIOS issued direction to Accounts Officer
and
Manager
of
Committee
of
Management to stop payment of salary,
no information was given to Committee of
Management by DIOS - No opportunity of
hearing given to person in whose favour
earlier order passed - Held, no fraud or
misrepresentation
proved
against
petitioners, order stopping salary appears
to be arbitrary, without jurisdiction, liable
to be quashed. (Para 19, 20, 21)

Writ Petition allowed. (E-13)

List of Cases cited:

## Text

9 All. Ashok Singh & Ors. Vs. D.I.O.S.
391
of
order
which
was
dismissed
on
25.01.2017 being barred by limitation, as
such, the period between 20.03.2015 and
25.01.2017 cannot be considered excluded
in
terms
of
Section
5(1)(b)(ii)
for
approaching
the Tribunal
so
far
as
challenge to the punishment order dated
23.03.2015 is concerned. Thus the claim
petition so far as it challenged the
punishment order dated 20.03.2015 was
clearly barred by limitation. It is not a case
where the punishment order on being
challenged in appeal under Rule 11 of the
Rules of 1999 was affirmed partially or
wholly in which case the period of
pendency of appeal would have to be
excluded for computing limitation for fresh
claim petition, but, it was a case where the
appeal was not filed within the limitation
prescribed under Rule 11 thus it was not in
accordance with Rules, consequently, the
period of pendency of appeal would neither
stop nor extend the limitation and it will
not be excluded from such computation and
limitation will have to be calculated from
the date of the punishment order i.e.
20.03.2015.

23. So far as challenge to the said
order is concerned. It being so the claim
petition filed in the year 2017 was clearly
barred by limitation which was one year
from 20.03.2015, so far as challenge to the
appellate
order
dated
25.01.2017
is
concerned the claim petition was within
limitation but its scope was confined only
to the validity of the appellate order which
was not on merits but only on the point of
limitation. Thus, the Tribunal at best could
have gone into the question as to whether
the appeal was rightly dismissed as barred
by limitation or not, nothing more.

24. We have already held that the
appellate order did not suffer from any
error and the tribunal rightly held the
appeal to be barred by limitation. Thus, it
rightly did not interfere with the appellate
order.

25. Thus, the Tribunal, in the opinion
of this Court, upon due consideration
rightly declined to entertain the claim
petition preferred by review-applicant so
far as challenge to order dated 20.03.2015
is concerned and thereafter, this Court
dismissed the petition upholding the view
of
the
Tribunal.
Now,
this
review
application has been filed, which, to the
view of this Court, for the reasons
aforesaid, is completely mis-conceived as
there is no error apparent on the face of the
record nor any valid ground for review of
judgment dated 28.03.2019 and it is
accordingly dismissed. Costs made easy.
----------
(2023) 9 ILRA 391
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 8466 of 1989

Ashok Singh & Ors. ...Petitioners
Versus
D.I.O.S. ...Respondent

Counsel for the Petitioners:
H.S. Sahai, Girish Chandra Verma, H.G.S.
Parihar, M.S. Rathore, Priti Saxena. U.S. Sahai

Counsel for the Respondents:
C.S.C., I.P. Shukla, O.P.M. Tripathi

Service Law - U.P. Secondary Education
Service
Commission
(Removal
of
Difficulties) Order, 1991 - Section 2 - U.P
Secondary Education Services Selection
Boards Act, 1982 - Sections 18, 33-A(1-C)
- Termination of ad hoc appointment -
392 INDIAN LAW REPORTS ALLAHABAD SERIES
Two posts of Assistant Teachers (L.T.
Grade) fallen vacant in institution and
Manager of College informed DIOS with
request to fill up vacancies or to issue
directions,
however,
DIOS
neither
appointed any reserve pool teacher nor
took
any
steps,
Committee
of
Management made ad hoc appointments,
issued notification and after considering
merit of applicants, found petitioner No.1
suitable, one post was filled up by
candidate of Scheduled Caste Category,
petitioner No.2 selected for said post,
resolution
passed,
DIOS
accorded
approval - After receiving complaints,
DIOS issued direction to Accounts Officer
and
Manager
of
Committee
of
Management to stop payment of salary,
no information was given to Committee of
Management by DIOS - No opportunity of
hearing given to person in whose favour
earlier order passed - Held, no fraud or
misrepresentation
proved
against
petitioners, order stopping salary appears
to be arbitrary, without jurisdiction, liable
to be quashed. (Para 19, 20, 21)

Writ Petition allowed. (E-13)

List of Cases cited:

1. Tarlochan Dev Sharma Vs St. of Punj. & ors.;
(2001) 6 SCC 260

2. Gauri Shankar Rai & ors. Vs Dr. Ram Lakhan
Pandey, DIOS, Ballia & ors.; 1984 UPLBEC 166

3. Prabhu Dayal & ors. Vs District Inspector of
Schools, Firozabad & ors.; Special Appeal
No.461 of 1993 decided on 11.08.1994

4. Manohar Lal (Dead) by LRs, Vs Ugrasen
(Dead) By LRs & ors.; Civil Appeal No.973 of
2007 (with Civil Appeal No.794 of 2007) decided
on 03.06.2010

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri G.C. Verma, learned
counsel for the petitioners and learned
Standing Counsel for the respondent No.1
and Sri Diwakar Singh Kaushik, learned
counsel for respondent No.2.

2. The present writ petition has been
preferred before this Court seeking a writ,
order or direction in the nature of certiorari
quashing the impugned orders dated
22.07.1988 (Annexure-9) as well as order
dated 19.09.1989 (Annexure-11) with a
further prayer to issue a writ, order or
direction in the nature of mandamus
commanding the respondents to pay salary
to the petitioners since the date of their
joining. A further prayer has been made to
treat the petitioners to be substantively
appointed on the post of Assistant Teacher
(L.T.
Grade)
with
all
consequential
benefits.

3. Brief facts giving rise to the present
writ petition are as under:

a.
The Rashtriya Intermediate College,
Tinduwai Kala, District Faizabad (for
short, 'College') is a recognized and
added institution and the provisions of
U.P. Intermediate Education Act, 1921
and the allied acts applies to the
services
of
teachers
and
other
employees of the College.
b.
One Sri Ram Dutt Singh, Lecturer in
the College on attaining the age of
superannuation retired from service on
30.06.1987 resulting a post of Lecturer
fallen vacant in the College.
c.
Another
Teacher
(L.T.
Grade),
namely, Sri Shanker Tripathi also
retired from service on attaining the
age of superannuation on 30.06.1986
resulting a post of Assistant Teacher
(L.T. Grade) fallen vacant in the
College.
d.
Upon retirement of Sri Ram Dutt
9 All. Ashok Singh & Ors. Vs. D.I.O.S.
393
Singh, an Assistant Teacher (L.T.
Grade), namely, Sri Arjun Prasad
Pandey being eligible was promoted in
Lecturer grade and as such, another
post in Assistant Teacher (L.T. Grade)
fallen vacant in the College.
e.
Accordingly, two vacancies occurred
in L.T. Grade in the College and ad
hoc appointments were to be made to
fill up the vacancies.
f.
The Manager of the College wrote
letter dated 24.07.1987 to the District
Inspector of Schools (DIOS) apprising
him the affairs with a request to fill up
the vacancies or to issue directions for
filling up the said posts.
g.
The DIOS neither appointed any
reserve pool teacher nor took any
steps
for
filling
up
those
two
vacancies in L.T. Grade and as such,
looking to the interest of the students,
the
Committee
of
Management
proceeded
to
make
ad
hoc
appointments
to
fill
up
those
vacancies.
h.
The
Committee
of
Management
notified two posts for filling up two
vacancies of Assistant Teachers (L.T.
Grade)
vide
notification
dated
20.05.1988 and after considering the
merit of the applicants, the Committee
of Management found petitioner No.1,
namely, Ashok Singh at first place and
since one post was to be filled up by
the candidate of Scheduled Caste
Category, petitioner No.2, namely,
Subhash
Chand,
who
was
sole
candidate belonging to Scheduled
Caste Category, was selected for the
said post. A resolution in this regard
was passed on 12.06.1988.
i.
Vide order dated 04.07.1988, the
DIOS accorded approval to the ad hoc
appointment of the petitioners.
j.
After grant of approval from the
DIOS, the Committee of Management
issued appointment letters to the
petitioners on 07.08.1988 and in
pursuance thereof, the petitioners
joined
their
duties
as
Assistant
Teachers (L.T. Grade) in the College
on 08.07.1988 and submitted their
joining. Since then, they are regularly
functioning as Assistant Teachers
(L.T. Grade).
k.
Vide letter dated 22.07.1988, the
DIOS issued direction to the Accounts
Officer and Manager of Committee of
Management
that
since
some
complaints were received against the
petitioners, therefore, payment of
salary could not be made to them and
the same requires investigation.
l.
Since passing of aforesaid impugned
order, one year and two months have
lapsed but no inquiry has been made
in the matter.
m. For redressal of their grievances in
regard to payment of salary, the
petitioners made a representation on
23.09.1989, which is lying pending
consideration and no order whatsoever
has been passed till date.
n.
Hence, the present writ petition has
been preferred before this Court.

4. Submission of learned counsel for
the petitioners is that while passing the
impugned order, no opportunity of hearing
was afforded to the petitioners. He
submitted that once the approval was
accorded to appointment of the petitioners
and they are continuing on their respective
posts, respondent No.1 could not stop
394 INDIAN LAW REPORTS ALLAHABAD SERIES
payment of salary to them till conclusion of
the inquiry.

5. He next submitted that Section 33A(1-c) was inserted by U.P. Act No.25 of
1991 w.e.f. 06.04.1991, which provides
that the teachers appointed either by
promotion or by direct recruitment before
31.07.1988 on ad hoc basis against
substantive vacancy in accordance with
Section
18
possessing
requisite
qualification or is exempted from such
qualification, shall, with effect from date of
commencement
of
U.P.
Secondary
Education Service Commission Selection
Board (Amendment) Act, 1991 shall be
deemed
to have been
appointed
in
substantive capacity providing that such
teachers should be continuously serving in
the
institution
from
the
date
of
commencement of the Act. The petitioners
were appointed prior to 31.07.1988 and
were continuously working on the date of
commencement of U.P. Act No.26 of 1991
w.e.f. 06.04.1991, therefore, they are
deemed
to
have
been
substantively
appointed on the post of Assistant Teachers
(L.T. Grade).

6. He further submitted that there has
been no power vested in the DIOS to
revoke / review its own order, therefore, the
impugned order dated 19.09.1989 is illegal
and without jurisdiction. He submitted that
while passing the said order, no opportunity
of hearing was provided to the petitioner,
therefore,
the
order
is
violative
of
principles of natural justice.

7. He lastly submitted that Regional
Level Committee has considered the matter
of appointment of petitioner No.1 on
15.12.2022 and regularized his service
under Section 33-A(1-C) of Act of 1982
and in pursuance thereof, the Joint Director
of Education issued an order on 17.12.2022
in regard to same. However, the matter of
regularization of service of petitioner No.2
is
pending
consideration
before
the
Regional Level Committee and no decision
has been taken till date. In support of his
submissions, he placed reliance upon
following judgments:

a) Tarlochan Dev Sharma Vs. State
of Punjab and others; (2001) 6 SCC 260.

b) Gauri Shankar Rai and others
Vs. Dr. Ram Lakhan Pandey, DIOS,
Ballia and others; 1984 UPLBEC 166.

c) Prabhu Dayal and others Vs.
District Inspector of Schools, Firozabad
and others; Special Appeal No.461 of
1993 decided on 11.08.1994.

d) Manohar Lal (Dead) by LRs, Vs.
Ugrasen (Dead) By LRs and others; Civil
Appeal No.973 of 2007 (with Civil
Appeal No.794 of 2007) decided on
03.06.2010.

8. On the other hand, learned
Standing Counsel for the respondent No.1
submitted that as the ad hoc appointment of
the petitioners was against the rules and
regulations, therefore, it is incumbent
upon the respondent to stop salary of the
petitioner.
He
submitted
that
no
requisition to U.P. Secondary Education
Service Commission was submitted for so
called vacancies in L.T. Grade, therefore,
there was no occasion for the DIOS to take
any action regarding filling up the posts
and the action taken by the respondent
No.2 - Committee of Management was
illegal.

9. He next submitted that the inquiry
so called has been completed and as a
result, rejecting the approval to the said ad
hoc appointments of petitioners has been
communicated to respondent No.2.
9 All. Ashok Singh & Ors. Vs. D.I.O.S.
395

10. He further submitted that
appointment of the petitioners was not
made in accordance with law, therefore,
there was no occasion to afford any
opportunity of hearing to them before
passing the impugned order.

11. He submitted that, as the
vacancies were not communicated to the
Commission before making the ad hoc
appointments
of
the
petitioners,
the
provisions of Section 2 of U.P. Secondary
Education Service Commission (Removal
of Difficulties) Order, 1991 and Section 18
of Act of 1982 are not attracted to present
facts and circumstances of the case.

12. He next submitted that only the
selection for ad hoc appointment of the
petitioners was approved by respondent
No.1 and once the ad hoc appointment was
found illegal, there is no question for
payment of salary and requested that the
writ petition being misconceived, is liable
to be dismissed.

13. However, learned counsel for
respondent No.2 submitted that previous
Manager of the Committee of Management of
the Institution, namely, Sri Tej Pratap Singh
expired on 20.12.1988 and present Manager,
namely, Sri Ram Lakhan Misra was appointed
in his place vide resolution dated 29.12.1988.
One Sri Jeet Bahadur Singh, previous
Principal of
the
institution
retired on
30.06.1988 and the present Principal, namely,
Sri Sheo Kumar Misra took over the charge as
officiating Principal on 30.06.1988. However,
at the time of handing over the charge, the then
Principal has not handed over the agenda
register and proceedings of register of
Committee of Management of the institution,
therefore, there is no record of proceedings of
committee of management available with the
institution.

14. However, on the basis of
statement of fact made in paragraph 15, 16,
21, 23, 25, 28 & 34, he submitted that the
petitioners are teaching on the post of ad
hoc Lecturer since 08.07.1988 on the basis
of approval granted by the DIOS on
04.07.1988. He submitted that the salary of
the petitioners has been stopped vide order
dated 22.07.1988 passed by the DIOS adn
no prior information in this regard was
given to the respondent No.2. He further
submitted that respondent No.2 vide letter
dated 19.10.1989 has informed respondent
No.1 in regard to order dated 06.10.1989
passed by this Hon'ble Court, whereby
direction was issued for payment of salary
to the petitioners on the post, which they
are working.

15. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record as well
as the judgments relied upon by learned
counsel for the petitioners.

16. To resolve the controversy
involved in the matter, relevant paragraphs
of the judgments relied upon by learned
counsel for the petitioners are being
extracted herein below:

a) Tarlochan Dev Sharma (Supra):

"16.
In
the
system
of
Indian
Democratic Governance as contemplated
by
the
Constitution
senior
officers
occupying key positions such as Secretaries
are not supposed to mortgage there own
discretion, volition and decision making
authority and be prepared to give way or
being pushed back or pressed ahead at the
behest of politicians for carrying out
commands having no sanctity in law. The
Conduct Rules of Central Government
Services command the civil servants to
maintain at all times absolute integrity and
396 INDIAN LAW REPORTS ALLAHABAD SERIES
devotion to duty and do nothing which is
unbecoming of a Government servant. No
Government
servant
shall
in
the
performance of his official duties, or in the
exercise of power conferred on him, act
otherwise than in his best judgment except
when he is acting under the direction of his
official superior. In Anirudhsinhji Jadeja
(1995) 5 SCC 302, this court has held that
a
statutory
authority
vested
with
jurisdiction must exercise it according to
its own discretion; discretion exercised
under the direction or instruction of some
higher authority is failure to exercise
discretion altogether. Observations of this
court in The Purtabpur Company Ltd., AIR
1970 SC 1896, are instructive and
apposite. Executive officers may in exercise
of their statutory discretions take into
account considerations of public policy and
in some context policy of Minister or the
Government as a whole when it is a
relevant factor in weighing the policy but
they are not absolved from their duty to
exercise
their
personal
judgment
in
individual cases unless explicit statutory
provision has been made for instructions by
a superior to bind them. As already stated
we are not recording, for want of adequate
material, any positive finding that the
impugned order was passed at the behest of
or dictated by someone else than its author.
Yet we have no hesitation in holding that
the impugned order betrays utter nonapplication of mind to the facts of the case
and the relevant law. The manner in which
the power under Section 22 has been
exercised by the competent authority is
suggestive of betrayal of the confidence
which the State Government reposed in the
Principal Secretary in conferring upon him
the exercise of drastic power like removal
of President of a Municipality under
Section 22 of the Act. To say the least what
has been done is not what is expected to be
done by a senior official like the Principal
Secretary
of
a
wing
of
the
State
Government. We leave at that and say no
more on this issue."

b) Gauri Shankar Rai and others
(Supra):

"10. Both these points are being dealt
with together. The legal position seems
indisputable namely that the District
Inspector of Schools was not invested
either
under
the
U.P.
Intermediate
Education Act or the Regulations framed
thereunder to review an order passed on
merits recognising a Managing Committee
as a body which is for the time being in
effective control of the management of the
Institution. As an administrative authority,
the District Inspector of Schools, could
exercise only such powers and functions as
were specifically conferred upon him by the
applicable statutes. It is thus apparent that
the District Inspector of Schools ahd no
jurisdiction to review the order dated 13-61980. The same view has been taken in the
case of Jaswant Singh v. The District
Inspector of Schools report in 1980 U.P.
Local Bodies and Educations Cases 43, in
which a Division Bench of this Court held
that the District Inspector of Schoosl after
having once passed an order on merits for
the limited purpose of performing duties
and functions cast upon him under the
relevant statutes, recognising any group of
individuals as being in effective control of
the management, has no jurisdiction to
review his order later, unless it is
established that the said order was
obtained by fraud or misrepresentation.
The Division Bench further held that even
in cases of fraud or misrepresentation, the
District Inspector of Schools must not
recall his earlier order without giving
opportunity of hearing to the persons in
9 All. Ashok Singh & Ors. Vs. D.I.O.S.
397
whose favour the earlier order was
passed."

c)
Prabhu
Dayal
and
others
(Supra):

"3. Under Section 18(1) (b) the
appointment can be made if the post of a
teacher, which has been notified to the
Commission, has remained vacant for more
than two months. What is required to be
done after two months is the appointment
issuing advertisement inviting applications
for such appointment within the period of
two months, is not prohibited. As the
process of selection on the basis of which
the appointment is to be made, is likely to
take time, there is no prohibition in the law
against inviting applications for such
appointment even before expiry of two
months."

d) Manohar Lal (Dead) by LRs
(Supra):

21. In Tarlochan Dev Sharma Vs.
State of Punjab & Ors. (2001) 6 SCC 260,
this Court, after placing reliance upon a
large number of its earlier judgments,
observed as under:

"In the system of Indian democratic
governance
as
contemplated
by
the
Constitution, senior officers occupying key
positions such as Secretaries are not
supposed to mortgage their own discretion,
volition and decision-making authority and
be prepared to give way or being pushed
back or pressed ahead at the behest of
politicians for carrying out commands
having no sanctity in law. The Conduct
Rules of Central Government Services
command the civil servants to maintain at
all times absolute integrity and devotion to
duty and do nothing which is unbecoming
of a government servant. No government
servant shall in the performance of his
official duties, or in the exercise of power
conferred on him, act otherwise than in his
best judgment except when he is acting
under the direction of his official superior."
(Emphasis added)

22. Therefore, the law on the question
can be summarised to the effect that no
higher authority in the hierarchy or an
appellate or revisional authority can
exercise the power of the statutory
authority nor the superior authority can
mortgage its wisdom and direct the
statutory authority to act in a particular
manner. If the appellate or revisional
Authority takes upon itself the task of the
statutory authority and passes an order, it
remains unenforceable for the reason that
it cannot be termed to be an order passed
under the Act."

17. On perusal of aforesaid judgment in
the case of Gauri Shankar Rai and others
(Supra), it is evident that the DIOS was not
invested either under the U.P. Intermediate
Education Act or the Regulations framed
thereunder to review an order passed on merit
and notice has been taken of the case of
Jaswant Singh v. The D.I.O.S., in which a
Division Bench of this Court has held that
the DIOS after having once passed an order
on merits for the limited purpose of
performing duties and functions cast upon
him under the relevant statutes, recognizing
any group of individuals as being in
effective control of the management, has no
jurisdiction to review his order later, unless
it is established that the said order was
obtained by fraud or misrepresentation. It
has further been held that in case of fraud or
misrepresentation, the DIOS must not recall
his earlier order without giving opportunity
of hearing to the person in whose favour the
earlier order was passed.
398 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In the case of Prabhu Dayal and
others (Supra), the Court has held that
under Section 18(1)(b) the appointment can
be made if the post of a teacher, which has
been notified to the Commission, has
remained vacant for more than two months,
what is required to be done after two
months
is
the
appointment
issuing
advertisement inviting applications for such
appointment within the period of two
months, is not prohibited. As the process of
selection on the basis of which the
appointment is to be made, is likely to take
time, there is no prohibition in the law
against inviting applications for such
appointment even before expiry of two
months.

19. In the case in hand, two posts of
Assistant Teachers (L.T. Grade) fallen
vacant in the institution and Manager of the
College informed the DIOS vide letter
dated 24.07.1987 with request to fill up the
vacancies or to issue directions for filling
up the said posts, however, The DIOS
neither appointed any reserve pool teacher
nor took any steps for filling up those two
vacancies in L.T. Grade and as such,
looking to the interest of the students, the
Committee of Management proceeded to
make ad hoc appointments to fill up those
vacancies.

20. The Committee of Management
notified two vacancies for the post of
Assistant Teachers (L.T. Grade) vide
notification dated 20.05.1988 and after
considering the merit of the applicants,
found petitioner No.1, namely, Ashok
Singh at first place and since one post was
to be filled up by the candidate of
Scheduled Caste Category, petitioner No.2,
namely, Subhash Chand, who was sole
candidate belonging to Scheduled Caste
Category, was selected for the said post and
a resolution in this regard was passed on
12.06.1988
and
vide
order
dated
04.07.1988, the DIOS accorded approval to
the ad hoc appointments.

21. After grant of approval by the
DIOS, the Committee of Management
issued appointment letters to the petitioners
on 07.08.1988 and in pursuance thereof,
they joined duties as Assistant Teachers
(L.T. Grade) in the College on 08.07.1988
and
since
then,
they
are
regularly
functioning as Assistant Teachers (L.T.
Grade).
However,
vide
letter
dated
22.07.1988, the DIOS issued direction to
the Accounts Officer and Manager of
Committee of Management that since some
complaints were received against the
petitioners, therefore, payment of salary
could not be made to them as the same
requires investigation.

22. However, the Regional Level
Committee has considered the matter of
appointment
of
petitioner
No.1
on
15.12.2022 and regularized his service
under Section 33-A(1-C) of Act of 1982
and in pursuance thereof, the Joint Director
of
Education
issued
an
order
on
17.12.2022, but matter of regularization of
service of petitioner No.2 is pending
consideration before the Regional Level
Committee and no decision has been taken
till date.

23. In view of submission advanced
by learned counsel for respondent No.2 that
no prior information was given to the
respondent No.2 by respondent No.1 for
stoppage of salary of the petitioners and in
view of judgments relied upon by learned
counsel for the petitioners in the case of
Gauri Shankar Rai and others (Supra)
and Prabhu Dayal and others (Supra),
that the DIOS has no jurisdiction to review
9 All. Subhash Chand Vs. State of U.P. & Ors.
399
his order later, unless it is established that
the said order was obtained by fraud or
misrepresentation and in case of fraud or
misrepresentation, the DIOS must not
recall his earlier order without giving
opportunity of hearing to the person in
whose favour the earlier order was passed.

24. In the present case, no such fraud
or misrepresentation has been proved
against the petitioners, therefore, the order
stopping salary of the petitioners appears to
be arbitrary and without jurisdiction and is
liable to be quashed.

25. For the reasons recorded above,
the writ petition succeeds and is allowed.

26. The impugned orders dated
22.08.1988 & 19.08.1989 are hereby
quashed.

27. However, the petitioners are
entitled to get salary w.e.f. their date of
joining i.e. 08.07.1988, therefore, direction
is issued to ensure payment of salary to the
petitioners w.e.f. 08.07.1988.

28. It is further directed that the
Chairman, Regional Level Committee will
pass orders on the matter of regularization
of petitioner No.2 pending before him
within a period of three months from the
date of production of a certified copy of
this order.
----------
(2023) 9 ILRA 399
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 8741 of 2023
Subhash Chand ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Kumar Kesherwani

Counsel for the Respondents:
C.S.C., Sri Ashutosh Mishra, Sri Rajesh Yadav

A.
Service
Law
-
Compassionate
appointment - Class III/Class IV post -
GO dated 04.09.2000 - Time limit for
submission of application fixed is five
years - Earlier, petitioner's appointment
as Assistant Teacher was terminated as he
did not passed Teachers Eligibility Test
(TET) - Writ against it was dismissed in
the light of Hari Shankar's case leaving it
open to the petitioner to claim for existing
Class III/Class IV post - However, claim
of the petitioner for Class III/Class IV
post was rejected on the ground of delay
of 11 years - Validity challenged - Held,
once petitioner submitted application for
compassionate appointment immediately
after the death of his father, it was
obligatory on the part of the authority to
offer him a legal appointment - Even he
was issued appointment order but later
on, it was found that the said appointment
of the petitioner was dehors the rules,
therefore,
it
was
incumbent
on the
authority
to
offer
compassionate
appointment to the petitioner on ClassIII/Class-IV post. (Para 29, 33 and 34)

Writ petition allowed. (E-1)

List of Cases cited:

1. Civil Misc. Writ Petition No. 33828 of 2012;
Hari Shankar & ors. Vs St. of U.P. & ors. decided
on 25.07.2012

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing
for the petitioner, Sri Ashish Kumar
Nagwanshi,
learned
Additional
Chief
Standing Counsel appearing for the State