# Ashutosh Patel v. State Of U.P. & Ors

- **Citation:** (2016) 3 ILRA 839
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-30
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashutosh-patel-v-state-of-u-p-ors-43611
- **Pages:** 11

## Text

3 All. Ashutosh Patel Vs State Of U.P. & Ors.
839
sessions court is hereby confirmed. Therefore criminal appeal no. 2642 of 1982, preferred
by appellant Imtiyaz is hereby dismissed.

30. As stated earlier, three appellants of criminal appeal no. 2528 of 1982 Vijai & Ors.
v. State have died during pendency of appeal, therefore the said appeal had abated.

31. Let a copy of this judgment be sent to the learned Sessions Judge, Farrukhabad, for
ensuring compliance.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.03.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No. - 5890 of 2015

Ashutosh Patel ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:-
Sanjay Mishra

Counsel for Respondents:-
C.S.C., R.K.S.Suryavanshi

Proceedings:

Bunch of writ petitions under Article 226 of the Constitution of India seeking a writ of mandamus
for payment of salary from the State-Exchequer on the basis of ad-hoc/temporary
appointments made by Committees of Management of recognized and aided Intermediate
Colleges against alleged substantive vacancies.

Statutory Provisions / Sections Involved

Article 226, Constitution of India
Section 16, U.P. Secondary Education (Services Selection Board) Act, 1982
Section 16-E(11), U.P. Intermediate Education Act, 1921
Section 9, U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other
Employees) Act, 1971
Relevant Regulations framed under the Intermediate Education Act, 1921

Facts:

Petitioners were appointed by Committees of Management on ad-hoc/temporary basis as
teachers in recognized and aided institutions.
Appointments were made against substantive vacancies, mostly arising due to retirement or
promotion of incumbent teachers.
840 INDIAN LAW REPORTS ALLAHABAD SERIES
No recommendation was made by the Selection Board as required under the Act of 1982.
Petitioners claimed salary from the State-Exchequer, relying on Section 16-E(11) of the Act of
1921 and earlier Single Bench decisions.
The State opposed the claim, contending that such appointments were de-hors statutory
provisions and void

Held / Legal Position:

Committee of Management has no authority to make appointments against substantive
vacancies except in accordance with Section 16 of the Act, 1982.
Section 16-E(11) permits temporary appointments only against fortuitous vacancies (leave,
death, termination, resignation) arising during an academic session and only till the end of
that session.
Vacancies due to retirement or promotion are not fortuitous, are pre-determinable, and
therefore cannot be filled under Section 16-E(11).
Appointment made in contravention of statutory provisions is void, and no mandamus can be issued
for payment of salary from public funds.
Salary cannot be directed unless the appointment is against a sanctioned post under Section 9 of
the Act, 1971.
Law settled by:
Full Bench - Santosh Kumar Singh v. State of U.P.
Division Bench - Abhishek Tripathi v. State of U.P.

Result:

All writ petitions dismissed.
Petitioners held not entitled to salary from the State-Exchequer.
Appointments declared de-hors statutory provisions.
No order as to costs.
Writ Petition No. 5423 (SS) of 2015 ordered to be delinked and listed separately.
Judgement

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard learned counsel for the parties.

2. All these writ petitions involve same issues relating to the entitlement of the
Committee of Management to make appointment of teachers against substantive vacancies
and the consequential entitlement of such teachers to salary from the State-Exchequer,
therefore, they have been heard and are being decided by a common judgment.

3. In all these writ petitions, the petitioners have been appointed by the Managing
Committee of the Educational Institutions which are recognized and are allegedly aided by
the State.

4. It is contended on behalf of the petitioners that in absence of regularly selected
candidate the teaching in the institution could not be allowed to suffer, therefore, in these
compelling circumstances the Managing Committee proceeded to make appointments on adhoc temporary basis against sanctioned post. They have placed reliance on the judgment of
Rakesh Chandra Misra vs. State of U.P. and others reported in (2004) 3 UPLBEC 2671 as
3 All. Ashutosh Patel Vs State Of U.P. & Ors.
841
upheld in the case of Daya Shanker Mishra vs. District Inspector of Schools and others
reported in [2010(28) LCD 1375] on the applicability of Section 16-E(11). They have
claimed that the appointments are referable to the said provision and therefore, they are
entitled to the payment of salary from the State-Exchequer.

5. The issue involved herein is no longer res-integra as the same has been considered
and decided by a Division Bench of this Court on 17.12.2015 in the case of Abhishek
Tripathi vs. State of U.P. through Secretary, Secondary Education, Lucknow and others
wherein their Lordships have held as under:-

"We hence, find merit in the contention which has been urged on behalf of the
State that the general considerations which weighed with the learned Single Judge in the
decision in Sanjay Singh (supra) cannot form the foundation of a sustainable direction in
law, that the State can be issued a writ of mandamus to pay salaries from the public
exchequer in respect of an appointment made by the management against a substantive
vacancy on an ad-hoc basis. The scope and ambit of the power of the management to fill up
temporary vacancies is clearly defined by the provisions of Section 16-E (11) of the Act of
1921 and its regulations. The legislature in its wisdom has enacted the Act of 1982 so as to
provide in Section 16 that notwithstanding anything contained in the Act of 1921, an
appointment shall be made by the management only on the recommendation of the Board.
The legislature further specified that any appointment made in contravention of the
provisions of sub- section (1) of Section 16 would be void. During the period when the
Removal of Difficulties Orders held the field, which contained a provision for making ad
hoc appointments, the law was well settled both by the Supreme Court and by this Court that
any appointment made in violation of the provisions contained in those orders would be void
and that a direction for the payment of salary could not be sustained on the basis of such an
appointment. After Section 18 was amended successively, a procedure was provided initially
for making ad-hoc appointments but, as we have noticed, Section 18, in its present form is
confined only to Principals and Headmasters. The only source of power then for making
appointments of an ad-hoc nature is relatable to the provisions of Section 16-E (11) of the
Act of 1921 read with regulations. Any appointment which is de-hors the provisions of the
Act of 1921 and the regulations cannot be countenanced in law. A mandamus cannot be
issued to the State for the payment of salary where the appointment by its very nature is in
contravention of law and void.

There can be no dispute about the basic principle of interpretation which was
sought to be emphasized by the petitioner that, in the course of interpreting a statute, it
would be open to the Court to adopt an interpretation which, while being in accord with the
terms of the statute, makes the statute workable. But equally in this process, it would not be
open to the Court to re-write statutory provisions or to mandate an act such as the payment
of salary in respect of an appointment which is made otherwise than in accordance with the
statutory provisions and the rules. Article 21-A of the Constitution upon which reliance has
been placed by the learned Single Judge in Sanjay Singh's case (supra) mandates that the
State shall provide free and compulsory education to all children between ages of six to
842 INDIAN LAW REPORTS ALLAHABAD SERIES
fourteen in such manner as the State may, by law, determine. The law undoubtedly, has to be
fair, just and reasonable.

This Court in repeated judgments has drawn the attention of the State to the need
to streamline the procedures in a line of precedent from this Court culminating in the
judgment of the Full Bench in Santosh Kumar Singh (supra). The observations of this Court
shall be taken up by the State with a sense of the highest priority and with all seriousness to
ensure that a situation does not emerge where vacancies of a substantive nature are left
unfilled over a long period of time to the detriment of education. The State Government must
take up the matter with necessary alacrity and immediacy.

For these reasons, we have come to the conclusion that the view of the learned
Single Judge in Sanjay Singh's case (supra) cannot be upheld as laying down the correct
position in law. The view of the learned Single Judge shall stand, accordingly, overruled.
The judgment in Pradeep Kumar (supra) is upheld subject to the principles which, we have
enunciated in this judgment.

The second issue which has been referred for decision before the Division Bench
is the scope of Section 16-E (11) when read in the context of Sections 16, 22, 32 and 33-E of
the Act of 1982. We have already dealt with the interpretation of these provisions in the
course of the judgment.

The reference to the Division Bench shall stand answered in the aforesaid terms.
The record of these proceedings shall now be remitted back to the learned Single Judge,
according to roster, for disposal in the light of the questions answered".

6. In view of the above the Managing Committee of a College does not have any
statutory authority to appoint a teacher against a substantive vacancy de-hors the provisions
of Section 16 of the U.P. Secondary Education (Services Selection Board) Act, 1982,
consequently such appointee is not entitled to salary from the State-Exchequer.

7. As far as appointment under Section 16-E (11) of the Intermediate Act, 1921 is
concerned, the law in this regard has already been explained and settled by the Full Bench
decision in the case of Santosh Kumar Singh Vs. State of U.P. and others reported in 2015
(33) LCD 2402 as also in the aforesaid Division Bench decision in the case of Abhishek
Tripathi (supra).

8. The relevant extracts of the Full Bench decision in Santosh Kumar Singh (supra) are
quoted herein below:-

19. Sub-section (11) of Section 16-E has thus made a specific provision in regard
to appointments in the case of temporary vacancies caused by (i) the grant of leave to an
incumbent for a period not exceeding six months; or (ii) by death, termination or otherwise
of an incumbent occurring during an educational session. The object of the provision is to
ensure that where a temporary vacancy arises as a result of fortuitous circumstances, such
3 All. Ashutosh Patel Vs State Of U.P. & Ors.
843
as leave, death, termination or otherwise, the educational needs of students should not be
disturbed. The purpose of making an arrangement in the case of a temporary vacancy is to
protect the interest of education so that students are not left in the lurch by the absence of a
teacher in the midst of an academic session. The proviso to sub-section (11), however,
stipulates that an appointment which is made under the provisions of sub-section (11) shall,
in no case, continue beyond the end of the educational session during which the
appointment was made. The proviso is intended to ensure that the purpose of appointment
against a temporary vacancy caused due to the absence of a teacher in the midst of an
academic session is met by continuing the appointment during and until the end of the
academic session but not further. This is a provision which has been made by the state
legislature in its legislating wisdom. The statutory provision provides both for the
circumstances in which a temporary vacancy can be filled up and the length of an
appointment made against a temporary vacancy. The difficulty which arises is because the
Board, which has been constituted under the Act, does not fulfill its mandate of promptly
selecting teachers for regular appointment. The District Inspector of Schools is in
possession of necessary factual data in regard to the dates of appointment and retirement of
teachers of aided institutions. This can be summoned by the Board even if the management
does not comply with its duty to intimate vacancies. There can be no justification for the
Board not to discharge its duties with dispatch and expedition. This is liable to result in a
situation where the educational needs of students are seriously disturbed due to the
unavailability of duly selected teachers. Ad hoc appointments in temporary vacancies also
cause a state of uncertainty for teachers and lay them open to grave exploitation at the
hands of certain managements of educational institutions. Thus, considering the matter both
from the perspective of the interest of education as well as the welfare of teachers, it is
necessary that the Board must take due and proper steps well in advance of an anticipated
vacancy to initiate the process of selection. Similarly, the State Government would do well
to streamline the procedure for making appointments in respect of temporary vacancies
consistent with the mandate of Section 16-E (11) so that, while the interest of students is
protected, the teachers are not exposed to exploitation.

"20. We consequently answer the reference in the following terms:

(a) .................

(b) ................

(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of
Management is empowered to make an appointment against a temporary vacancy caused by
the grant of leave to an incumbent for a period not exceeding six months or in the case of
death, termination or otherwise, of an incumbent occurring during an educational session.
An appointment made under sub-section (11) of Section 16-E as provided in the proviso
thereto shall, in any case, not continue beyond the end of educational session during which
the appointment was made; and
844 INDIAN LAW REPORTS ALLAHABAD SERIES

(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is
affirmed as laying down a correct interpretation of the judgment in A A Calton (supra)."

9. In view of the above pronouncement, appointment against temporary vacancy in
terms of Section 16-E (11) of the Uttar Pradesh Intermediate Education Act, 1921 (For short
'the Intermediate Act, 1921') can be made only till the end of academic session meaning
thereby such appointments can be made in the academic session in which the vacancy arises
thereby creating a corresponding need for such appointment till the end of the academic
session and not beyond that. Thus, appointment under Section 16-E (11) of the U.P.
Intermediate Act, 1921 can not be made in a subsequent academic session.

10. Apart from an appointment against a temporary vacancy caused on account of leave
of an incumbent for a period not exceeding six months, appointment in the case of a vacancy
caused by 'death, termination or otherwise' of an incumbent during an educational session
is also permissible under Section 16-E(11) of the Act 1921, with the rider that such
appointments shall not in any case continue beyond another educational session during
which such appointment was made.

11. Purport of the word 'or otherwise' has not been considered in any of the
pronouncements referred to hereinabove and no such pronouncement has been placed before
the Court by either of the parties wherein it may have been considered. As in the present
case, most of the vacancies have arisen on account of retirement or promotion of the
incumbent, which is not specifically mentioned in Section 16-E(11) of the Act, therefore, it
is necessary to consider the purport and meaning of the words 'or otherwise' so as to
determine the applicability of Rules 16-F (11) as has been pressed by the petitioners.
Etymologically, the word 'otherwise' as per Black's Law Dictionary means "in a different
manner; in another way; or in other ways". The word 'other' has been defined in the same
dictionary to mean "different or distinct from that already mentioned; additional, or further,
"following an enumeration of particular classes "other" must be read as "other such like" and
includes only others of like kind and character." The use of words 'death or termination' is
indicative of the fortuitous circumstances giving rise to the vacancy referred in the
provision. In the pronouncements of this Court referred and quoted hereinabove it has
already been said that the object of Section 16-E(11) is to ensure that where a temporary
vacancy arises as a result of fortuitous circumstances, such as leave, death, termination or
otherwise, the educational needs of students should not be disturbed, therefore, the aforesaid
provision caters to the need created by fortuitous circumstances. The word 'Fortuitous' is
defined in Black's Law Dictionary to mean "happening by chance or accident. Occurring
unexpectedly, or without known cause, Accidental; undesigned; adventitious. Resulting
from unavoidable physical causes". Vacancies on account of Death and Termination cannot
be anticipated. They are based on fortuitous circumstances.

12. The rule of Ejusdem generis is that words of a general nature following specific and
particular words should be construed as limited to things which are of the same nature as
those specified. This rule is not to be applied where the context manifests a contrary
intention.
3 All. Ashutosh Patel Vs State Of U.P. & Ors.
845

13. In the present case the context is the provision contained in Section 16-E(11) of the
Act providing for filling up of temporary vacancies and those of a fortuitous nature other
than the vacancies which are to be filled up substantively under other provisions. Death and
termination also creates a substantive vacancy but they are distinct from other substantive
vacancies as they are fortuitous. They cannot be anticipated or known before hand nor predetermined, therefore, they have been included under sub section 11 for being filled up
temporarily in keeping with the object of the said provision.

14. Applying the principle of Ejusdem generis the general word "otherwise" is to be
understood by giving a restricted meaning limited to matters of the same class, category or
genus as the specific words preceding it. The principle underlying this approach to statutory
is that the subsequent general words were only intended to guard against some accidental
omission in the objects of the kind mentioned earlier and were not intended to extend to
objects of a wholly different kind. The specific words preceding the general word "or
otherwise" i.e. death and termination can be placed under a common category indicative of
vacancies arising out of fortuitous circumstances, therefore, the general word "otherwise"
following the specific words death and termination has to be read and understood as
indicative of other vacancies which may also arise fortuitously such as resignation etc. If the
word "otherwise" is given a wide meaning so as to include all other kinds of vacancies it
will render the very provision of section 16-E (11) nugatory being contrary to its very object
and the spirit underlying it. If this was the intention then there was no necessity of using the
words death or termination, therefore, it has to be understood as referring to other vacancies
of similar nature i.e. fortuitous vacancies. This is in consonance with the object of the
provision as explained by Full Bench of this Court in the case of Santosh Kumar Singh
(Supra).

15. A vacancy created by retirement is a substantive vacancy which is not fortuitous in
nature. It can be anticipated and in fact is pre-determinable, therefore, against such
vacancies appointments can not be made under Section 16-E(11) of the Act but can only be
made under Section 16 of the Act, 1982, afortori because of Regulations of 21 of the
Regulations made under U.P. Intermediate Act 1921 under which a teacher who attains the
age of superannuation in the midst of an academic session is entitled to continue till the end
of the session. Likewise a vacancy created by promotion can also not be said to be purely
fortuitous, as, it can, in a given situation, very well be anticipated. Moreover it does not
create absence of a teacher in the institution which is also one of the consequences of a
vacancy arising out of death or termination. On promotion the teacher is very much
available in the institution and he can also teach the lower classes if the need arises,
therefore, the said vacancy is not covered by the aforesaid provision of Section 16-E(11).
The provision does not evince any contrary intention so as to allow substantive vacancies,
which are not of a fortuitous nature, to be filled under the said provision.

16. In the case of an appointment against temporary vacancy in terms of Section 16E(11) of the U.P. Intermediate Act, 1921 a teacher may be entitled for salary but only till the
end of academic session and not beyond that, that too, only if the appointment is against a
846 INDIAN LAW REPORTS ALLAHABAD SERIES
post sanctioned/created as per Section 9 of the U.P. High School and Intermediate Colleges
(Payment of Salaries of Teachers and other Employees) Act 1971 (hereinafter referred to as
'the Act 1971).

17. As per the dictum of the Full Bench decision of this Court in the Special Appeal
defective No. 673 of 2014 (State of U.P. vs. Committee of Management, Sri Sukhpal
Intermediate College) no direction for payment of salary to a teacher of an Educational
Institution governed by the Payment of Salary Act, 1971 can be issued by this Court unless
he has been appointed against a post sanctioned/created with compliance of Section 9
thereof. The relevant extracts of the aforesaid Full Bench decision are quoted herein below:-

"In our view, the field of dispute in the present case, is governed by the judgment
of the Full Bench in Gopal Dubey (supra). The judgment in Gopal Dubey clearly holds that
the Act of 1971 operates in a field which is distinct from the Act of 1921. The mere fact that
recognition has been granted to an institution or, for that matter, for conducting a new
course or subject or for an additional section, would not give rise to a presumption of a
financial sanction having been granted to the creation of a post. A financial liability cannot
be foisted on the State to reimburse the salary payable to the employee or the teacher on the
basis of such a presumption. For the purpose of creating a new post of a teacher or other
employee, the management has to obtain the prior approval of the Director as required
under Section 9 of the Act 1971. Without the prior approval of the Director, a new post
cannot be sanctioned or created. Section 9 is mandatory. This principle in Gopal Dubey's
case follows specifically the judgment of the Supreme Court in Gajadhar Prasad Verma's
case which was rendered while interpreting the provisions of Section 9 of the Act of 1971.
The High Court cannot issue a direction contrary to the mandate of Section 9. Orders under
Article 226 must conform to law and cannot be contrary to the mandate of law. No
mandamus can issue - interim or final - for the payment of salary by the state in the absence
of the prior approval of the Director.

For these reasons, we answer the questions which have been framed for reference
to the Full Bench in the following terms:

In the absence of a sanctioned post, a direction cannot be issued to the state in the
exercise of powers under Article 226 of the Constitution for the payment of salary. The
position in law, with which we respectfully concur, is as laid down in the judgment of the
Full Bench in Gopal Dubey's case. The judgment in Om Prakash Verma is consistent with
the law laid down in Gopal Dubey's case. In the absence of a sanctioned post, the High
Court under Article 226 of the Constitution would not be justified in issuing a mandamus for
the payment of salary, particularly since a mandamus cannot lie in the absence of a legal
right, based on the existence of a statutory duty."

18. When considered against the aforesaid legal backdrop the factual position which
emerges in these bunch of petitions and the alleged entitlement of petitioners to salary from
the State Exchequers is as under:-
3 All. Ashutosh Patel Vs State Of U.P. & Ors.
847

19. As far as the Writ Petition No. 5890(SS) of 2015 is concerned, the appointment
having been made by the Managing Committee against a substantive vacancy said to have
arisen on 01.07.2013 due to retirement of the then incumbent, clearly the appointment is dehors the Provisions of the Act, 1982 and the Act of the U.P. Intermediate Education Act,
1921 as also the regulations made thereunder, therefore, no direction for payment of salary
from the State-Exchequer can be issued in favour of the petitioner. Moreover, even if such a
vacancy could be filled under Section 16-E (11), the same could not have been done in the
year 2015 but only in the academic session in which it occurred.

20. In Writ Petition No. 5957(SS) of 2015, the petitioner claims to have been appointed
by the Managing Committee against a substantive vacancy which occurred on 30.06.2011
due to retirement of the then incumbent, therefore, clearly this appointment is also de-hors
the statutory provisions thereby dis-entitling the petitioner to salary from the StateExchequer. Assuming such a vacancy could be filled under Section 16-E (11) of the Act,
1921, the same could have been done only in the academic session in which it fell vacant
and not in the succeeding academic session.

21. In Writ Petition No. 6490(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
30.06.2008 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

22. In Writ Petition No. 6516(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2014 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

23. In Writ Petition No. 6539(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2012 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

24. In Writ Petition No. 6529(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2014 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

25. In Writ Petition No. 6612(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2011 due to retirement of the then incumbent, therefore, for the reasons already stated
848 INDIAN LAW REPORTS ALLAHABAD SERIES
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

26. In Writ Petition No. 6613(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2012 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

27. In Writ Petition No. 6177(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
30.06.2011 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

28. In Writ Petition No. 6193(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
30.06.2011 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

29. In Writ Petition No. 6558(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2004 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

30. In Writ Petition No. 7034(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2013 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

31. In Writ Petition No. 7076(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
30.06.2015 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

32. In Writ Petition No. 7094(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2012 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.
3 All. Shri Sushil Kumar Tripathi Vs State Of U.P. & Ors.
849

33. In Writ Petition No. 7177(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
01.07.2014 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

34. In Writ Petition No. 7214(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
02.01.2013 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

35. In Writ Petition No. 5950(SS) of 2015, the petitioner herein claims to have been
appointed by the Managing Committee against a substantive vacancy which occurred on
30.06.2011 due to retirement of the then incumbent, therefore, for the reasons already stated
hereinabove the appointment being de-hors the statutory provisions, no direction for
payment of salary from the State-Exchequer can be issued.

36. For the reasons already stated in the earlier part of the judgment, the appointment of
all these petitioners of the aforesaid writ petitions being de-hors the statutory provisions and
the law laid down by the Full Bench of this Court at Allahabad in Santosh Kumar Singh
(supra) and the Division Bench of this Court in Abhishek Tripathi (supra) as also the recent
judgment of this Court dated 08.02.2016 passed in Writ Petition 6978(SS) of 2015 referred
hereinabove, no direction for payment of salary to the petitioners from the State-Exchequer
can be granted.

37. These writ petitions are accordingly, dismissed. There shall be no orders as to
costs.

38. Writ Petition No. 5423(SS) of 2015 is ordered to be delinked and listed separately
in the next cause list.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW- 31.03.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE ADITYA NATH MITTAL, J.

Misc. Bench - 6420 of 2016

Shri Sushil Kumar Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents