# Bal Krishan Misra v. State of U.P. & Ors

- **Citation:** Chairman Town Area Committee and another (Writ A No. 19889 of 1991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Chairman Town Area Committee and another (Writ A No. 19889 of 1991
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-krishan-misra-v-state-of-u-p-ors-46214
- **Pages:** 11

## Headnote

(A) Service Law- U.P Secondary Education
[Services Selection Boards] Act, 1982 -
Section 18 read with U.P Secondary
Education Service Commission (Removal
of Difficulties) Order, 1981 - ad-hoc
appointment should be made by the
Committee of Management on substantive
vacancy
-
it
can
be
done
if
the
management notified the vacancy to the
Commission
-
the
post
of
Lecturer,
Sanskrit
fell
vacant
substantively
on
10.07.1989 on which DIOS treated the
said vacancy as substantive vacancy

Writ Petition Rejected.(E-10)

## Text

3-5 All. Bal Krishan Misra Vs. State of U.P. & Ors.
765

48. Similarly, in Director of
Settlement
V.M.R
Apparao,
MANU/SC/0219/2002 : (2002) SCC 638
in para 17 Court held that the power
vested in High Court under Article 226 of
the Constitution is discretionary.

49. Following the principle laid
down in the aforesaid decisions, this
Court has reiterated the same view in a
number of cases, including R.K. Shukla v.
Chairman Town Area Committee and
another (Writ A No. 19889 of 1991
decided on 17.1.2013). Suffice it to say
that this Court is not bound to interfere
even if technically or otherwise, order
impugned, is found to be illegal or
erroneous.

50. In Amrendra Singh v. State
of U.P. and others, MANU/UP/1480/2007
: 2008(1) ADJ 397 (DB), this Court has
declined to interfere in intra Court
appeal with an order of Single Judge
even though legally it was not sustainable
since substantial justice had been done
therein and setting aside order may have
resulted in revival of another pernicious
order."

43. The settled principles considered by
this Court in the judgment passed in the case
of Sachchida Nand Chaturvedi (supra), in my
view, are fully applicable in the present case.

44. For the reasons aforesaid, this Court
is of the view that order dated 21.11.1998 is
not liable to be interfered in exercise of
power under Article 226 of the Constitution
of India and the petitioner is not entitled to
the reliefs sought in the present writ petition.
Writ petition lacks merit and it is dismissed.
No order as to costs.
----------
(2020)03-05ILR A765
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.02.2020

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 1772 of 1995

Bal Krishan Misra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
L.P. Shukla

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

(A) Service Law- U.P Secondary Education
[Services Selection Boards] Act, 1982 -
Section 18 read with U.P Secondary
Education Service Commission (Removal
of Difficulties) Order, 1981 - ad-hoc
appointment should be made by the
Committee of Management on substantive
vacancy
-
it
can
be
done
if
the
management notified the vacancy to the
Commission
-
the
post
of
Lecturer,
Sanskrit
fell
vacant
substantively
on
10.07.1989 on which DIOS treated the
said vacancy as substantive vacancy

Writ Petition Rejected.(E-10)

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Som Kartik, learned
counsel for the petitioner and Sri Jogendra
Nathi Verma, learned State counsel.

2. In view of the order proposed to be
passed and keeping in view the age of
litigation,
 notice to respondent Nos. 4 and 5 is
dispensed with.

3. Initially, the writ petition was filed
for the following main reliefs:-
766 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i) Issue a writ, direction or
order
in
the
nature
of
mandamus
commanding the opposite parties no. 1 to 3
to grant approval to the Petitioner's
appointment on the post of ad-hoc Sanskrit
Lecturer
and
allow
him
all
the
consequential benefits including salary on
the said post from the date of joining the
said post i.e. 1.8.1985.

(ii) Issue a writ, direction or
order
in
the
nature
of
mandamus
commanding the opposite parties no. 1 to 3
to regularise the petitioner's appointment
on the post of Sanskrit Lecturer from the
date of the G.O. dated 6.4.1991 and allow
him all the consequential benefits of the
post from the said date including arrears of
salary."

4. During the pendency of the present
writ
petition,
the
respondent
No.
5/Regional
Selection
Committee,
Allahabad Region, Allahabad passed the
order dated 21.12.2010, whereby the case
of the petitioner for regularization on the
post of Lecturer, Sanskrit was taken up he
was regularized keeping in view the
provisions of Section 33-C of the U.P.
Secondary Education [Services Selection
Boards] Act, 1982 (in short "Act, 1982"),
which reads as under:-

"[33C. Regularisation of certain
more appointments. - (1) Any teacher who
-

(a)(i)
was
appointed
by
promotion or by direct recruitment on or
after May 14, 1991 but not later than
August 6, 1993 on ad hoc basis against
substantive vacancy in accordance with
section 18, in the Lecturer grade or the
Trained Graduate grade;

(ii) was appointed by promotion
on or after July 31,1988 but not later than
August 6,1993 on ad hoc basis against a
substantive vacancy in the post of a
Principal or Head Master in accordance
with Section 18;

(b) possesses the qualification
prescribed under, or is exempted from such
qualification in accordance with, the
provisions of the Intermediate Education
Act, 1921;

(c) has been continuously serving
the Institution from the date of such
appointment up to the date of the
commencement of the Uttar Pradesh
Secondary Education Services Commission
(Amendment) Act, 1998;

(d) has been found suitable for
appointment in a substantive capacity by a
Selection Committee constituted under subsection (2);

shall
be
given
substantive
appointment by the Management.

(2) (a) For each region, there
shall be a Selection Committee comprising,
-

(i) Regional Joint Director of
Education of that region, who shall be the
Chairman;

(ii) Regional Deputy Director of
Education (Secondary) who shall be
member;

(iii) Regional Assistant Director
of Education (Basic) who shall be a
member.

In addition to above members, the
District Inspector of Schools of the
concerned district shall be co-opted as
member while considering the cases for
regularisation of that district.

(b) The Procedure of selection for
substantive appointment under sub-section
(1) shall be such as may be prescribed.

(3) (a) The names of the teachers
shall be recommended for substantive
appointment in order of seniority as
determined
from
the
date
of
their
appointment.
3-5 All. Bal Krishan Misra Vs. State of U.P. & Ors.
767

(b) If two or more such teachers
are appointed on the same date, the teacher
who is elder in age shall be recommended
first.

(4) Every teacher appointed in a
substantive capacity under sub-section (1)
shall be deemed to be on probation from
the date of such substantive appointment.

(5) A teacher who is not found
suitable under sub-section (1) and a
teacher who is not eligible to get a
substantive appointment under that subsection shall cease to hold the appointment
on such date as the State Government may
by order specify.

(6) Nothing in this Section shall
be construed to entitle any teacher to
substantive appointment, if on the date of
commencement of the Ordinance referred
to in clause (c) of sub-section (1) such
vacancy had already been filled or
selection for such vacancy has already
been made in accordance with this Act.]"

5. As per the order of regularization
dated 21.12.2010, the petitioner was
regularized w.e.f. 20.04.1998. It is without
going to say that Section 33-C was inserted
in the Act, 1982 vide U.P. Act No. 25 of
1998 dated 25.07.1998 w.e.f. 20.04.1998.

6. After the order dated 21.12.2010
passed by the respondent No. 5, the
petitioner
moved
an
application
for
amendment in the writ petition, thereby
seeking incorporation of certain facts and
grounds as well as the reliefs. The reliefs
incorporated in the writ petition by moving
the application for amendment, which was
allowed vide order dated 04.03.2013, are as
under:-

"(ii)(a) To issue a writ, order or
direction in the nature of certiorari
quashing the order dated 21.12.2010
[Annexure No. 11(a)] of the Regional
Committee to the extent it has regularized
the services of the petitioner w.e.f. 20-41998.

(ii)(b) To issue a writ, order or
direction in the nature of mandamus
commanding the Regional Committee to
regularize the petitioner w.e.f. the date of
his appointment i.e. 1-8-1985."

7. Sri Som Kartik, learned counsel for
the petitioner submitted that the present
writ petition survives only for the relief
Nos. (ii) (a) and (ii) (b).

8.

Assailing
the
order
dated
21.12.2010, whereby the services of the
petitioner have been regularized w.e.f.
20.04.1998 and consequential relief(s)
sought by the petitioner to the effect that
his regularization be considered w.e.f.
01.08.1985,
learned
counsel
for
the
petitioner submitted that the petitioner was
initially appointed on the post of Lecturer,
Sanskrit vide order of appointment dated
27.07.1985, for which the resolution was
also
passed
by
the
respondent
No.
3/Committee
of
Management
on
25.07.1985.

9. The appointment on the post of
Lecturer, Sanskrit was made by way of
promotion on vacant post of Lecturer,
Sanskrit as per the procedure prescribed
under
para-2
of
the
Uttar
Pradesh
Secondary Education Service Commission
(Removal of Difficulties) Order, 1981 (in
short "Order, 1981").

10. Keeping in view the appointment
of the petitioner by way of promotion by
the competent Authority in the year 1985,
as per the procedure prescribed under para2 of Order, 1981 as well as the provisions
inserted in the Act, 1982 i.e. Section 33-A
768 INDIAN LAW REPORTS ALLAHABAD SERIES
(1-A), inserted in the Act, 1982 vide U.P.
Act No. 26 of 1991, which provides
deemed regularization, the case of the
petitioner ought to have been considered by
the respondents for regularization under
Section 33-A (1-A) of the Act, 1982 and
ignoring the same, the appointment of the
petitioner by way of promotion was
considered by the respondent No. 5 for
regularization under Section 33-C of the
Act, 1982 and accordingly, the respondent
No. 5 committed error of law and fact both.
Section 33-A of the Act, 1982 on
reproduction reads as under:-

"[33A. Regularisation of certain
appointment. - (1) Every teacher directly
appointed before the commencement of the
Uttar
Pradesh
Secondary
Education
Services Commission and Selection Boards
(Amendment) Ordinance, 1985, on ad hoc
basis against a substantive vacancy in
accordance with paragraph 2 of the Uttar
Pradesh Secondary Education Services
Commission
(Removal
of
Difficulties)
Order, 1981, as amended from time to time,
who possesses the qualifications prescribed
under,
or
is
exempted
from
such
qualification in accordance with the
provisions of the Intermediate Education
Act, 1921, shall, with effect from the date of
such commencement, be deemed to have
been appointed in a substantive capacity
provided
such
teacher
has
been
continuously serving the Institution from
the date of such appointment up to the date
of such commencement.]

[(1A) Every teacher appointed by
promotion on ad hoc basis against a
substantive vacancy in accordance with
paragraph
2
of
the
Uttar
Pradesh
Secondary Education Services Commission
(Removal of Difficulties) Order, 1981, as
amended from time to time, who possesses
the qualifications prescribed under or, is
exempted from such qualifications in
accordance with the provisions of the
Intermediate Education Act, 1921 shall,
with effect from the date of commencement
of the Uttar Pradesh Secondary Education
Services Commission and Selection Boards
(Amendment) Act, 1991, be deemed to have
been appointed in a substantive capacity,
provided
such
teacher
has
been
continuously serving the Institution from
the date of such ad hoc appointment to the
date of such commencement.

(1B)
Every
teacher
directly
appointed after June 12, 1985 and before
May 13, 1989 on ad hoc basis against a
substantive vacancy in the Certificate of
Teaching
Grade
in
accordance
with
paragraph
2
of
the
Uttar
Pradesh
Secondary Education Services Commission
(Removal of Difficulties) Order, 1981 as
amended from time to time who possesses
the qualifications prescribed under, or is
exempted
from
such
qualification
in
accordance with the provisions of the
Intermediate Education Act, 1921 shall
with effect from the commencement of the
Uttar
Pradesh
Secondary
Education
Services Commission and Selection Boards
(Amendment) Act, 1991, be deemed to have
been appointed in substantive capacity
provided
such
teacher
has
been
continuously serving the Institution from
the date of such ad hoc appointment to the
date of such commencement.

(1C) Every teacher appointed by
promotion or by direct recruitment before
July 31,1988 on ad hoc basis against a
substantive vacancy in accordance with
Section
18,
who
possesses
the
qualifications prescribed under, or is
exempted
from
such
qualification
in
accordance with the provisions of the
Intermediate Education Act, 1921, shall,
with effect from the date of commencement
of the Uttar Pradesh Secondary Education
3-5 All. Bal Krishan Misra Vs. State of U.P. & Ors.
769
Services Commission and Selection Boards
(Amendment) Act, 1991, be deemed to have
been appointed in a substantive capacity,
provided
such
teacher
has
been
continuously serving the Institution from
the date of such ad hoc appointment to the
date of such commencement.]

[(2) Every teacher deemed to
have been appointed in a substantive
capacity under sub-section (1) or (1-A) or
(1-B) or (1-C), shall be deemed to he on
probation from the date of commencement
referred to in sub-section (1) or (1-A) or (1B) or (1-C) as the case may be.]

(3) Nothing in this Section shall
be construed to entitle any teacher to
substantive appointment -

(a)
if
on
the
date
of
[commencement referred to in sub-section
(1) or (1-A) or (1-B) or (1-C) such post had
already been filled or selection for such
post had already been made in accordance
with this Act, or

(b) if such teacher was related to
any
member
of
the
Committee
of
Management or the Principal or Head
Master of the Institution concerned.

Explanation. - For the purposes
of this sub-section a person shall be
deemed to be related to another if -

(i) they are members of a Hindu
undivided family; or

(ii) they are husband and wife; or

(iii) the one is related to the other
in the manner indicated in the Second
Schedule to the Intermediate Education
Act, 1921.]"

11. It is further stated that the case of
the
petitioner
for
regularization
was
considered under Section 33-C of the Act,
1982, whereas the petitioner was appointed
by way of promotion within the cut off date
provided under Section 33-A (1-A) of the
Act, 1982, as such keeping in view the
same,
the
petitioner
is
entitled
for
regularization w.e.f. 01.08.1985 and in not
providing the same, the respondents erred
in law and facts both.

12. The prayer is to interfere in the
matter and allow the writ petition.

13. Per contra, Sri Jogendra Nath
Verma, learned State counsel, on the basis
of the counter affidavit filed to the
amended paras of the writ petition and in
support of the order dated 21.12.2010,
submitted that the order dated 21.12.2010
is just and proper in the eye of law and is
not liable to interfered with.

14. Elaborating his arguments, Sri
Jogendra Nathi Verma, learned State
counsel submitted that in fact, five posts of
Lecturer, Sanskrit in the institution namely
Ram Naresh Intermediate College, Pure
Dhanau, Kunda, Pratapgarh (in short
"College") were created vide order dated
11.03.1981 of the Deputy Director of
Education, Faizabad.

15. On the post in issue, an adhoc
appointment was made on 21.02.1983 and
thereafter, the person who was appointed
on the said post did not turn back and
subsequently, the vacancy was notified.
The selection was held by the Board as per
the procedure provided in the Act, 1982
and the Board selected one Sri Jitendra
Kumar Sashtri.

16. Taking into account the selection
of Sri Jitendra Kumar Sashtri on the vacant
post of Lecturer, Sanskrit, the respondent
No. 2/DIOS vide letter dated 27.05.1985
directed the respondent No. 3 to permit the
joining of Sri Jiterndra Kumar Shashtri.
The person selected by the Board namely
770 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Jitendra Kumar Shastri never turned up
and joined the post in question.

17. Keeping in view the said fact, the
vacancy was considered as substantive
vacancy vide order dated 10.07.1989,
passed by the DIOS and thereafter, the
vacancy was again notified.

18. After the order dated 10.07.1989,
whereby the DIOS considered the vacancy
as substantive vacancy, the Committee of
Management passed the resolution dated
12.01.1992 in favour of the petitioner.

19.

By
the
resolution
dated
12.01.1992, the petitioner was promoted on
the post of Lecturer, Sanskrit in the
institution and the appointment of the
petitioner was approved. Thereafter, the
case of the petitioner for regularization was
considered vide order dated 21.12.2010.
The
service
of
the
petitioner
were
regularized
under
the
provisions
as
envisaged under Section 33-C of the Act,
1982.

20. In this factual background,
learned State counsel submitted that in fact
the
substantive
vacancy
came
into
existence in the year 1989 and subsequent
to the same, the petitioner was appointed
by way of promotion by the Committee of
Management and keeping in view the date
of appointment i.e. 01.01.1992 as well as
the provisions as envisaged under Section
33-C of the Act, 1982, the regularization of
the petitioner was done. Thus, the order
dated 21.12.2010 is not liable to be
interfered with by this Court. The prayer is
to dismiss the writ petition.

21. Heard the submissions made by
learned counsel for the parties and perused
the record.

22. In the instant case, the claim of
the petitioner is that he was appointed by
way of promotion on 27.07.1985 under the
Order of 1981 and joined on the post on
01.08.1985 and accordingly, he is entitled
for regularization under Section 33-A (1-A)
w.e.f. 01.08.1985.

23. It appears from the above quoted
provisions including Section 33-A (1-A)
that for the purposes of regularization
under the aforesaid provisions of the Act,
1982, one of the relevant contingency is
that the vacancy should be "substantive
vacancy" and if promotion is made on the
substantive vacancy on adhoc basis after
following
the
proper
procedure
as
mentioned in relevant provision i.e. Order
of 1981 and a candidate also fulfills other
eligibility provided under the aforesaid
provision(s)
then
in
that
event
the
incumbent of the post can be regularized
under the above quoted provision(s).

24. In view of the aforesaid, the
question which is to be considered in the
present case is that on which date the
"substantive vacancy" came into existence?

25. For coming to the conclusion on
the above said question, to the view of this
Court, in addition to above referred
provision, Section 18 of the Act, 1982, on
relevant time, and Order of 1981 are also
relevant. Accordingly, the relevant portion
of the same are quoted below for ready
reference:-

Section 18 of the Act, 1982:-

"18 Ad hoc Teachers.-(1) Where
the management has notified a vacancy to
the Commission in accordance with the
provisions of this Act, and-

(a) the commission has failed to
recommended the name of any suitable
3-5 All. Bal Krishan Misra Vs. State of U.P. & Ors.
771
candidate for being appointed as a teacher
specified in the Schedule within one year
from the date of such notification ; or

(b) the post of such teacher has
actually remained vacant for more than two
months,
then,
the
management
may
appoint,
by
direct
recruitment
or
promotion, a teacher on purely ad hoc
basis from amongst the person possessing
qualifications
prescribed
under
the
Intermediate Education Act, 1921 or the
regulations made thereunder."

Order of 1981:-

"1.
Short
title
and
commencement.- The Order may be called
the Uttar Pradesh Secondary Education
Services
Commission
(Removal
of
Difficulties) Order, 1981.

(2) It shall come into force at
once.

2. Vacancies in which ad hoc
appointment
can
be
made.-The
management of an institution may appoint
by promotion or by direct recruitment a
teacher on purely ad hoc basis in
accordance with the provisions of this
Order in the following case, namely ;

(a) in the case of a substantive
vacancy
existing
on
the
date
of
commencement of this Order caused by
death, retirement, resignation or otherwise;

(b) in the case of a leave vacancy,
where the whole or unexpired portion of the
leave is for a period exceeding two months
on the date of such commencement ;

(c) Where a vacancy of the nature
in Clause (a) or Clause (b) comes into
existence within a period of two months
subsequent
to
the
date
of
such
commencement.

3.
Duration
of
ad
hoc
appointments.-Every appointment of an ad
hoc teacher under Paragraph 2 shall cease
to have effect from the earliest of the dates,
namely :

(a)
when
the
candidates
recommended by the Commissioner or the
Board joins the post ; or

(b) when the period of six months
from the date of such ad hoc appointment
expires.

4. Ad
hoc
appointment
by
promotion.-(1)" Every vacancy in the post
of the Head of an institution may be filled
by promotion :

(a) in the case of an Intermediate
College, by the seniormost teacher of the
institution in the lecturer's grade ;

(b) in the case of a High School
raised to the level of an Intermediate
College, by the Headmaster of such High
School ;

(c) in the case of a Junior High
School raised to the level of a High School,
by the Headmaster of such Junior High
School ;

(2) Every vacancy in the post of a
teacher in Lecturers grade may be filled by
promotion by the sernior-most teacher of
the institution in the trained-graduate (L.
T.) grade.

(3) Every vacancy in the post of a
teacher in the trained graduate (L. T.)
grade shall be filled by promotion by the
serniormost teacher of the institution in the
trained Under-graduate (C. T.) grade.

(4) Every vacancy in the post of a
teacher in the trained under-graduate (C.
T.) grade shall be filled by promotion by the
seniormost teacher of the institution in the
J. T. C. grade or B.T.C. grade.

Explanation.-For the purposes of
clauses (1) to (4) of this paragraph, the
expression "senior-most teacher" means the
teacher having longest continuous service
in the Lecturer's grade or the trained
graduate (L. T.) grade, or trained Undergraduate (C. T.) grade or J. T. C. or B. T.
C. grade as the case may be."
772 INDIAN LAW REPORTS ALLAHABAD SERIES

26. From the aforesaid provisions, so
far as it relates to regularization of
appointment is concerned, it appear that:-

(i) Ad-hoc appointment should
have been made by the Committee of
Management on "substantive vacancy"

(ii) Ad-hoc appointment can be
made against "substantive vacancy" by the
Committee
of
Management,
if
the
Management has notified the vacancy to
the Commission and-

(a) the Commission failed to
recommend the name of suitable candidate
for being appointed as a Teacher within one
year from the date of notification of
vacancy by the Management, or

(b) the post of such teacher has
actually remained vacant for more than two
months.

(iii)
Such
Ad-hoc
appointee
(Teacher) has been continuously serving
the institution from the date of appointment
to the date of commencement of the
Amending Act of 1991.

(iv)
"Vacancy"
would
be
"substantive vacancy" if it comes into
existence on account of death, retirement,
resignation or otherwise.

27. For considering the issue involved
in the instant case, this Court is also of the
view to quote the resolution of the
Committee
of
Management
dated
25.07.1985 and the second resolution dated
12.01.1992, the same read as under:-

Resolution dated 25.07.1985:-

"izcU/k lfefr dk izLrko la03

 fnukad 25-07-85

fo"k;& fo|ky; esa izoDrk 1⁄4laLd`r1⁄2
in ij rnFkZ fu;qfDr ds lEcU/k esa fopkjA

laLFkk izcU/kd us izcU/k lfefr dks
voxr djk;k fd laLFkk esa laLrqr izoDrk gsrq
ek/;fed f'k{kk lsok vk;ksx }kjk p;fur vH;FkhZ
Jh ftrsUnz dqekj 'kkL=h dk uke ft0fo0fujh{kd]
izrkix<+ }kjk lalwfpr fd;s tkus ds ckn gh Jh
';keyky rnFkZ izoDrk 1⁄4laLd`r1⁄2 us laLFkk esa dk;Z
djuk NksM+ fn;k gS ftlls l= 84&85 ds vUr
ls gh b.Vj d{kkvksa esa laLd`r f'k{k.k esa dfBukbZ
gks jgh gSA ek0f'k0lsok vk;ksx m0iz0 bykgkckn
}kjk p;fur vH;FkhZ Jh ftrsUnz dqekj 'kkL=h dks
izcU/k lfefr dh lgefr ls izcU/kd }kjk fu;qfDr
i= iszf"kr fd;k tk pqdk gS] fdUrq Jh 'kkL=h us
laLFkk esa dk;ZHkkj xzg.k ugha fd;kA ,slh fLFkfr esa
b.Vj d{kkvksa esa laLd`r fo"k; ds v/;kiu gsrq
laLFkk esa dk;Zjr izoDrk laLd`r in gsrq ,dek=
vgZ f'k{kd Jh ckyd`".k feJ] ,e0,0 1⁄4laLd`r1⁄2
ch0,0 dks inksUufr iznku dj rnFkZ fu;qfDr gsrq
izdj.k fopkjFkZ izcU/k lfefr ds le{k iz/kkukpk;Z
dh izrkix<+ esa dk;Zjr f'k{kdksa esa Jh ckyd`".k
feJ gh ,dek= laLd`r izoDrk in gsrq vgZ
f'k{kd gSaA laLFkk dks b.VjehfM,V dh ekU;rk
izkfIr dkykof/k ls v|r% le; le; ij izoDrk
ds vHkko esa Jh ckyd`".k feJ gh b.Vj laLd`r
fo"k; dk v/;kiu djrs jgs gSaA buds v/;kiu ls
Nk= ,oa vf/kdkjhx.k iw.kZ laUrq"V jgs gSaA vr% Jh
ckyd`".k feJ l0 v0 dks inksUUkfr nsdj rnFkZ
izoDrk 1⁄4laLd`r1⁄2 in gsrq ek0f'k0lsok vk;ksx ls
p;fur vH;FkhZ ds dk;ZHkkj xzg.k djus dh frfFk
rd ds fy, izcU/kd egksn; }kjk izLrkfor fd;k
x;kA

izcU/k lfefr ds lnL;x.k }kjk xgu
fopkjksijkar Jh ckyd`".k feJ l0 v0 dks
inksUUkfr iznku dj rnFkZ izoDrk 1⁄4laLd`r1⁄2 in ij
p;u dh izcy laLrqfr loZlEefr ls dh tkrh gSA
vfxze dk;Zokgh gsrq izcU/kd egksn; dks vf/kd`r
fd;k tkrk gSA

lR; izfrfyfi

izekf.kr

g0 jk?ko jke ik.Ms;"

Resolution dated 12.01.1992:-

"izLrko la[;k 2 fnukad 12-01-92

fo|ky; esa laLd`r izoDrk ds in ij
inksUUkfr ds lEcU/k esa fopkjA

fu.kZ;& laLFkk izcU/kd us izcU/k lfefr
ds cSBd esa laLd`r izoDrk ds ekSfyd fjDr in
ij vkt rd fu;fer fu;qfDr u gks ikus dh
fLFkfr ij viuh vk[;k izLrqr djrs gq;s crk;k
fd laLd`r izoDrk dk in loZizFke dfBukbZ
3-5 All. Bal Krishan Misra Vs. State of U.P. & Ors.
773
fuokj.k vkns'k ds vUrxZRk ft0fo0fu0] izrkix<+
ds i=kad ek-@10001&10002 fnukad 15-1-82 }kjk
Jh ';keyky dh rnFkZ fu;qfDr ls Hkjk x;k FkkA
rRi'pkr ek0 f'k0 lsok vk;ksx m0iz0 }kjk bl
in dks Hkjus gsrq fu;ekuqlkj p;u gqvkA vk;ksx
}kjk p;fur gq;s vH;fFkZ;kas dk uke ft0 fo0 fu0
izrkix<+ ds i=kad% ek-@9311&14@84&85 fn0
16-1-85 ds vuqlkj Jh thrsUnz dqekj 'kkL=h irk
}kjk dq0 iqrqy Ms eq[; okf.kT; v/kh{kd]
dk;kZy; LVs'ku Hkou mRRkj jsyos okjk.klh dSUV
rFkk f}rh; vH;FkhZ Jh n;k'kadj irk }kjk
jks'kuyky iksLVeSu 32 cVkfy;u iks0 vkfQl
ih0,0lh0 y[kuÅ ft0fo0fujh{kd] izrkix<+ ds
i=kad ek-@6681&82@86&87 fnukad 22-8-86 ds
vuqlkj fu;qfDr gsrq dze'k% ,d&,d djds izkIr
gqvk Fkk ftUgsa jftLVMZ i= }kjk jftLVah la0 26
fn0 10-2-85 ,d jftLVah la0 5596 fn0 27&9&86
}kjk dze'k% xzg.k fd;k x;k u bl lEcU/k esa
mUgkasus dksbZ lwpuk gh fn;kA rRi'pkr ft0fo0fu0
izrkix<+ }kjk dfBukbZ fuokj.k vkns'k ds vUrxZRk
mDr rnFkZ fu;qDr v/;kid Jh ';keyky tqykbZ
85 ls bl laLFkk ls laLd`r izoDrk in ij dk;Z
djuk NksM+ fn;kA ,slh fLFkfr esa laLd`r izoDrk
dk in tqykbZ 85 ls fjDRk jgk fdUrq bl chp
b.Vj d{kkvksa esa laLd`r fo"k; ds iBu&ikBu dk
dk;Z fo|ky; eas dk;Zjr C.T.@L.T. osrudze ds
vgZ v/;kid Jh ckyd`".k feJ ,e0,0ch0,M0
}kjk dk;Z fd;k tkrk jgkA laLd`r fo"k; ds
f'k{k.k dk;Z dk Hkkj vf/kd ns[krs gq, fn0
31&12&90 ls laLFkk esa laLd`r izoDrk in ij Jh
f=Hkqou ukFk feJ dh rnFkZ fu;qfDr Hkh bl 'krZ
ij dh xbZ dh rnFkZ fu;qfDr dk vuqeksnu
ft0fo0fu0 izrkix<+ }kjk feyus ij gh osru ns;
gksxkA fdUrq t0fo0fu0 izrkix<+ us vius i=kad
ek0dq.Mk@10016@91&92 fn0 10-12-91 }kjk Jh
f=Hkqou ukFk feJ vuqeksnu lEcU/kh i=koyh
vukuqeksfnr fo|ky; dks okil dj fn;kA mlds
i'pkr ls Jh f=Hkqou ukFk feJ 1 tuojh 92 ls
fcuk fdlh lwpuk ds vius in ls dk;Z djuk
NksM+ fn;k vkSj u rks fo|ky; esa mifLFkr gh
gq,A ,slh fLFkfr esa laLFkk esa igys ls Lukrd
osrudze esa dk;Zjr lgk;d v/;kid Jh cky
d`".k feJ] ,e0,01⁄4laLd`r1⁄2 ch0,M0 tks fn0 1-191 ls vius vuqHko ds vk/kkj ij izoDrk osru
dze esa 50% dksVs ds vUrxZRk inksUufr esa vgZ Hkh
gSA mDr vukuqeksfnr rnFkZ izoDrk Jh f=Hkqou
ukFk feJ }kjk viuk in NksM+dj pys tkus ds
ckn ls gh fn0 1-1-92 ls Jh ckyd`".k feJ
,e0,0 1⁄4laLd`r1⁄2 c0,l0 }kjk gh b.Vj d{kkvksa esa
laLd`r fo"k; i<+k;k tk jgk gSA

pwafd laLd`r izoDrk dk in fn0 1-192 ls iw.kZr% fjDRk gS b.Vj f'k{kdksa esa laLd`r
fo"k; ds izoDrk in gsrq ,d ek= vgZ f'k{kd Jh
cky d`".k feJ ,e0,01⁄4laLd`r1⁄2 ch0,M dks
inksUUkfr dj rnFkZ fu;qfDr gsrq izdj.k fopkjkFkZ
izcU/kd }kjk izcU/k lfefr ds le{k izLrko fd;k
x;kA

izcU/k lfefr ds lnL;ksa us loZ lEefr
ls izcU/kd th ds izLrko dk leFkZu djrs gq,
fopkjksijkUr fu.kZ; fy;k fd Jh ckyd`".k feJ
tks laLFkk dks b.Vj dh ekU;rk izkIr ls le; ls
gh vkt rd le;≤ ij vko'drkuqlkj izoDrk ds
vHkko esa b.Vj laLd`r fo"k; dk v/;kiu dk;Z
djrs jgs gSa] mUgsa LkaLd`r izoDrk ds fjDr in ij
tcls ;g in iw.kZr% fjDr py jgk gS fn0 1-1-92
ls rnFkZ inksUufr djus dk fu.kZ; fy;k vkSj
izoDrk in ds osru Hkqxrku gsrq foHkkx ls lgefr
izkIr
djus
,oa
bl
lEcU/k
esa
vU;
vko';drkuqlkj vfxze dk;Zokgh djus ,oa fjDr
inksUUkfr ds vuqeksnu gsrq i=tkr ek0 f'k0 lsok
vk;ksx m0iz0 dks izsf"kr djus gsrq izcU/kd dks
vf/kd`r fd;k lkFk gh lfefr us loZ lEEkfr ls
;g Hkh fu.kZ; fy;k fd Jh ckyd`".k feJ dks tc
rd rnFkZ inksUUkfr dk foHkkxh; vuqeksnu u izkIr
gks tk; mUgsa izkIr gksus okyk iwoZ osru mlh dze
esa Hkqxrku fd;k tkrk jgsA

lR; izfrfyfi

izekf.kr

g0@& jk?ko jke ik.Ms;

jkeujs'k b.VjehfM,V dkyst iwjs
/kuÅ

 iksLV /kuks[kh 1⁄4dq.Mk1⁄2] izrkix<+"

28. From the bare perusal of the
resolution dated 25.07.1985, it appears that
the appointment of the petitioner by way of
promotion on the post of Lecturer, Sanskrit
was made purely on temporary basis taking
into account the fact that the selected
person namely Sri Jiterndra Kumar Shashtri
774 INDIAN LAW REPORTS ALLAHABAD SERIES
did not join on the post in issue and the
appointment was made subject to the
joining of the selected candidate.

29. It is evident from the record that
the post of Lecturer, Sanskrit was created
vide order dated 11.03.1981 and prior to
appointment on the post of Lecturer,
Sanskrit by way of promotion of the
petitioner, the said vacancy/post was
notified, as appears from the resolution
dated 27.07.1985, and one person namely
Sri Jitendra Kumar Shastri was selected by
the Commission, as per the procedure
prescribed under the Act, 1982, and
thereafter, on the directions issued by the
DIOS,
Pratapgarh
vide
letter
dated
27.05.1985, the Committee of Management
issued the letters dated 16.01.1985 and
09.07.1985 to the selected person Sri
Jitendra Kumar Shastri for joining on the
post, who did not responded to the said
letters and never joined the institution.

30. Further, the petitioner was
appointed by way of promotion in the year
1985 vide order dated 27.07.1985, on
account
of
non
joining
of
selected
candidate namely Sri Jitendra Kumar
Shastri and at that point of time, the
vacancy was not notified by the Committee
of Management. The vacancy was treated
to
be
substantive
vide
order
dated
10.07.1989. Thereafter, one Sri Tribhuvan
Nath Mishra was also promoted on the post
of Lecturer, Sanskrit w.e.f. 31.12.1990,
who
subsequently
left
the
college.
Thereafter,
the
petitioner
was
again
promoted on the post of Lecturer, Sanskrit.

31. From the aforesaid facts and the
provisions
quoted
hereinabove,
it
is
apparent that on 27.07.1985, the date on
which the petitioner was promoted on the
post of Lecturer, Sanskrit, the vacancy was
not substantive vacancy, as no requisition
with regard to post/vacancy of Lecturer,
Sanskrit
was
pending
before
the
Commission.

32. Vide letter dated 10.07.1989, the
vacancy was treated as substantive vacancy
by the DIOS. After treating the vacancy as
substantive vacancy vide letter dated
10.07.1989 issued by the DIOS, the
petitioner was appointed by way of
promotion on the post of Lecturer, Sanskrit
w.e.f. 01.01.1992, as appears from the
resolution
dated
12.01.1992.
This
appointment of the petitioner by way of
promotion was approved.

33. It is also evident from the
resolution dated 12.01.1992, which was
passed after the letter of the DIOS dated
10.07.1989 by which the vacancy was
considered as substantive vacancy, the
promotion of the petitioner was considered
and he was promoted under 50% quota and
the promotion of the petitioner vide second
resolution dated 12.01.1992 appears to be
made by the Committee of Management as
per the procedure prescribed.

34. Considering the aforesaid facts,
the case of the petitioner for regularization
was considered and thereafter, the order
dated 21.12.2010 for regularizing the
services of the petitioner w.e.f. 20.04.1998
was passed by the respondent No. 5.

35. From the aforesaid facts including
the
resolution
of
Committee
of
Management, quoted above, it is evident
that the post of Lecturer, Sanskrit fell
vacant substantively on 10.07.1989, on
which date the DIOS treated the said
vacancy as substantive vacancy. Prior to
that date, the vacancy in question is not
liable
to be treated
as
"substantive
3-5 All. Ram Anand Vs. State of U.P.
775
vacancy". It is in view of conjoint reading
of the facts of the case as also Section 18,
on relevant time, and Order of 1981.

36. Accordingly, the appointment of
the petitioner by way of promotion on the
post of Lecturer, Sanskrit vide order dated
27.07.1985 was not against "substantive
vacancy" and being so, he is not entitled for
regularization w.e.f. 01.08.1985 (date of
joining) under Section 33-A (1-A) of the
Act, 1982.

37. In view of the reasons recorded
hereinabove, this Court is of the view that
the petitioner is not entitled to the reliefs
sought.

38. For the foregoing reasons, the writ
petition lacks merit. It is hereby dismissed
with no order as to costs.
----------
(2020)03-05ILR A775
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.03.2020

BEFORE

THE HON'BLE MANISH MATHUR, J.

Service Single No. 4336 of 1988

Ram Anand ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
D.P. Dewadi, U.C. Pandey

Counsel for the Respondent:
C.S.C.

(A) Service Law - U.P. Lekhpal Service
Rules, 1958 - Rule 212 and 214-B -
Chapter XIV - Land Record Manual -
Cancellation
of
Lekhpal
Examination
Certificate - Rule 5 and 212- of the -
petitioner was not held guilty of serious
misconduct in obtaining certificate which
can be the sole ground for cancellation of
certificate - no opportunity of hearing
provided - no provision either in Rules of
1958 or in Manual requiring a candidate to
have three years of experience as on
30.04.1980 for the purpose of admission
and
issuance
of
certificate
upon
completion of training in lekhpal schools
were given

The petitioner was granted appointment as a
Lekhpal on a temporary basis on a temporary
post in the year 1978 thereafter he took a
special lekhpal examination in the year 1981.
After verification it was found that as per the
Government Order dated 15.05.1980 he did not
completed three years of service as on
08.05.1980 as an untrained lekpal therefore his
certificate was cancelled and was subsequently
terminated from service. The non completion of
three years of service as on 30.04.1980 for the
purpose of admission and issuance of certificate
upon completion of training in a lekhpal schools
was laid down by aforementioned government
order and not by any statutory provision. The
condition imposed by the government order
restricts condition of appointment as required
under service rules. Such a fact exceeds the
authority of competent government since it has
effect of diluting or restricting the service
conditions indicated in the service rules, without
amendment to the same.

(B)
Interpretation
-
purposive
interpretation of subordinate legislation -
statutory provision cannot be diluted,
modified or overridden by government
order - government order can fill up the
gaps
and
supplement
the
rules
by
issuance of instructions no inconsistent
with the already existing rules

The condition imposed by the government order
dated
15.05.1980 is merely an enabling
provision which has been passed to enable
proper implementation of Rules 5 and 6 of the
Service Rules. Therefore the condition are to be
seen in its purposive character. It is apparent
that the entire purpose of the government order
was that a person entitles to be regularized in
service should have sufficient experience in the