# Basu Dev Singh v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-07
- **Case number:** Writ A No. 4071 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/basu-dev-singh-v-state-of-u-p-ors-51765
- **Pages:** 7

## Headnote

A. Service Law - U.P. Secondary Education
(Services Selection Board) Act, 1982 -
Section 33C - Intermediate Education Act,
1921 - Natural Justice - Fraud in Appointment -
Petitioner's appointment as lecturer regularized
on 25.04.2006 - Regional Joint Director of
Education
stopped
salary
and
declared
appointment
fraudulent
vide
order
dated
19.03.2020
based
on
despatch
register
discrepancy - Held, order passed without notice
to
petitioner,
principal,
or
management,
violating natural justice - No specific finding of
fraud or misrepresentation by petitioner or
management
-
Regularization
order
not
cancelled, cannot be deemed automatically void
- Inquiry into appointment legality during
seniority
dispute
impermissible
-
Orders
quashed for lack of authority and procedural
fairness - Radhey Shyam Yadav Vs St. of U.P.
and Asha Saxena Vs S.K. Chaudhari relied
upon. (Para 8-9, 11-12)

Writ petition allowed.

List of Cases cited:

## Text

4 All. Basu Dev Singh Vs. State of U.P. & Ors.
255

23. Keeping in view the aforesaid
discussion, this Court finds that the
principles of law as laid down by the Apex
Court in the case of Godrej Sara Lee
Limited (supra) of entertaining a writ
petition are not made out. Accordingly, the
writ petition is dismissed leaving it open to
the petitioner to pursue the remedy of
appeal as per rules.
----------
(2024) 4 ILRA 255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 4071 of 2020

Basu Dev Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Girja Shanker Mishra, Sri Govind Kumar
Singh (Sr. Advocate), Sri Sankalp Narain,
Sri H.N. Singh (Sr. Advocate)

Counsel for the Respondents:
C.S.C

A. Service Law - U.P. Secondary Education
(Services Selection Board) Act, 1982 -
Section 33C - Intermediate Education Act,
1921 - Natural Justice - Fraud in Appointment -
Petitioner's appointment as lecturer regularized
on 25.04.2006 - Regional Joint Director of
Education
stopped
salary
and
declared
appointment
fraudulent
vide
order
dated
19.03.2020
based
on
despatch
register
discrepancy - Held, order passed without notice
to
petitioner,
principal,
or
management,
violating natural justice - No specific finding of
fraud or misrepresentation by petitioner or
management
-
Regularization
order
not
cancelled, cannot be deemed automatically void
- Inquiry into appointment legality during
seniority
dispute
impermissible
-
Orders
quashed for lack of authority and procedural
fairness - Radhey Shyam Yadav Vs St. of U.P.
and Asha Saxena Vs S.K. Chaudhari relied
upon. (Para 8-9, 11-12)

Writ petition allowed.

List of Cases cited:

1. Radhey Shyam Yadav Vs St. of U.P.; AIR
2024 SC 260

2. Chief Engineer, M.S.E.B Vs Suresh Raghunath
Bhokare; (2005) 10 SCC 465 (AIR 2005 SC
1622)

3. Asha Saxena Vs S.K. Chaudhari; 1991(2)
UPLBEC 1202

4. Ram Sarup Vs St. of Har.; AIR 1978 SC 1536

5. Malcom Lawrence Cecil D'Sousa; 1975 L.I.C.
816

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri H.N. Singh, learned
Senior Counsel assisted by Shri G.S.
Mishra, learned counsel for the petitioner
and
Shri
Neeraj
Tripathi,
learned
Additional Advocate General for the
State-respondents.

2. The petitioner before this Court
has been working as a lecturer in the
institution
and
his
services
were
regularized way back on 25.04.2006. He is
aggrieved now by the order passed by the
Regional Joint Director of Education dated
19.03.2020, holding the appointment of
the petitioner to be bad for being result of
fraud and forgery and thus directed for
stoppage of payment of salary of the
petitioner, and also the consequential
order passed by the District Inspector of
Schools on 20.03.2020 withholding the
payment of salary of the petitioner and
further directing the authorized controller
256 INDIAN LAW REPORTS ALLAHABAD SERIES
to take appropriate action under the
Intermediate Education Act, 1921 against
illegal and fraudulent appointment of
petitioner.

3. Briefly stated facts of the case are
that petitioner was initially appointed on
ad-hoc basis as a lecturer against a
substantive vacancy on 20.01.1991. His
appointment came to be approved on
07.03.1991 and thus petitioner started
functioning in the institution and was paid
salary accordingly. In view of the section
33C of the U.P. Secondary Education
(Services Selection Board) Act, 1982, the
Regional Joint Director of Education
passed an order with the condition that if
any fact was found to have been concealed,
his regularization shall automatically stands
cancelled. This order was passed on
25.04.2006
and
thereafter
nothing
happened until a dispute arose of seniority
amongst
three
teachers
namely
the
petitioner, one Uday Narayan Dwivedi and
Chandbhan yadav so as to be appointed as
officiating principal of the institution. It
transpires that the Regional Joint Director
of Education who was seized with the
matter, called for some report and on the
basis of report, he questioned the order of
the District Inspector of Schools giving
charge to one Sri Uday Narayan Dwivedi
as officiating principal of the institution
and directed that the order be immediately
recalled. It is in that process that he held,
since
one
Ramujagir
Shukla
was
recommended to be appointed with the
formal approval granted by the District
Inspector of Schools on 07.03.1991 and
since Ramujagir Shukla did not turn up to
join then his appointment must have been
cancelled and then only any financial
approval could have been granted to
another
teacher
Basu
Dev
Singh
(petitioner) as lecturer in Geography but
the despatch register did not demonstrate
the approval order to have been issued to
either Ramujagir Shukla or Basu Dev
Singh and thus concluded that appointment
of petitioner Basu Dev Singh to be prima
facie bad and directed that the payment of
salary of Basu Dev Singh be stopped. It is
as a sequential to the order passed by the
Regional Joint Director of Education that
District Inspector of Schools passed order
on 20.03.2020.

4. Two fold argument has been
advanced:

(i) Once the regularization order
had been passed, taking recourse to the
provisions
contained
under
the
U.P.
Secondary Education (Services Selection
Board) Act, 1982, until and unless that
order was recalled or reviewed by putting
petitioner to prior notice and giving him
reasonable opportunity of hearing, the
Regional Joint Director of Education was
not justified in ordering for stoppage of
payment of salary of the petitioner and,

(ii) On a mere apprehension and
doubt being raised regarding the despatch
letter of the year 1991, the Regional Joint
Director of Education could not have
returned a finding that the approval order to
the appointment of the petitioner was
forged/fraudulent.

5. Yet another argument has been
advanced that the Regional Joint Director
of Education does not act as court to issue
an interim direction that since prima facie
the approval order appeared to be doubtful,
so the payment of salary be stopped despite
the fact that petitioner's regularization had
already taken place.

6. Meeting the arguments, learned
Standing Counsel appearing for the State-
4 All. Basu Dev Singh Vs. State of U.P. & Ors.
257
respondent has sought to urge that the very
regularization order contained a condition
that if any fact was concealed in obtaining
the
regularization,
it
would
stand
automatically cancelled, so there was no
question of passing any order for recalling
the order of regularization. He has further
sought to urge that both the despatch letters
of financial approval in favour of one
Ramujagir Shukla and that of the petitioner
were bearing same despatch number and,
therefore, there was no question of any
doubt. According to him the despatch
number was in respect of some requisition
sent to the Manager of Janta Inter College,
Ranipur as per entry and wherein neither
the name of the petitioner, nor Ramujagir
Shukla has been mentioned.

7. Having heard learned counsel for
the parties and perused the record, I
proceed first to examine the order passed
by the Regional Joint Director of Education
impugned herein this petition. Closely
examining the order passed by the Regional
Joint
Director
of
Education
dated
19.03.2020, I find that the Regional Joint
Director of Education has not doubted the
existence of the vacancy. All that he has
doubted is the financial approval accorded
to
the
petitioner's
appointment
on
07.03.1991, bearing letter No.6272 but this,
as per records, was meant for Janta Inter
College, Ranipur, Mau for some requisition
and not in relation to the approval of
petitioner's appointment. This finding is
based upon a discussion held qua report of
District
Inspector
of
Schools
dated
12.03.2020, that was regarding despatch
number entered in his office despatch
register. This finding if compared with the
document brought on record in the counter
affidavit at page No.34, then it is seen to be
in reference to some requisition being sent
in respect of a vacancy and not in relation
to approval order of Ramujagir Shukla.
This extract of the despatch register, typed
copy of which has been filed, has no head
and tail in terms of date and year.

8. The report that was filed by the
District
Inspector
of
Schools
dated
12.03.2020 upon which the finding has
come to be returned is verbatim as
mentioned in the order of the Regional
Joint Director of Education. Thus the
Regional Joint Director of Education has
not applied his independent mind and just
mechanically
acted
upon
report
and
virtually reproduced the same in passing
the order. He did not even care to examine
as to whether petitioner was guilty of any
misrepresentation or fraud in getting
appointment and financial approval. This,
of course, could have been done, had the
petitioner been put to notice but the order
clearly shows that the petitioner was never
put to notice, nor the order proceeds to hold
any inquiry in the matter.

9. Looking to the regularization order
which has been brought on record as
annexure No.2 to the writ petition, carries a
condition that if any fraud was committed
by management or principal then the order
would automatically stand cancelled. In
order to find answer to the question as to
whether there was any fraud committed by
the management or the principal in the
matter of approval to the appointment of
petitioner, in my considered view a notice
ought
to
have
been
given
to
the
management and the principal in the first
instance but surprisingly Joint Director of
Education while determining the question
of seniority travelled beyond the scope of
dispute pending before him in holding that
the appointment of the petitioner was bad
that too without issuing any prior notice to
the petitioner, principal and the Manager of
258 INDIAN LAW REPORTS ALLAHABAD SERIES
the institution. There is no finding that the
petitioner
committed
any
fraud
or
misrepresentation, nor any finding has been
returned
regarding
fraud
or
misrepresentation at the end of Principal or
Manager of the institution. Thus, on this
ground alone, the impugned order passed
by the Regional Joint Director of Education
is liable to be quashed and so the order
passed by the Regional Joint Director of
Education and consequential order of
District Inspector of Schools cannot be
sustained in law. Very recently, in the case
of Radhey Shyam Yadav and another Etc.
Vs. State of U.P. and others (AIR 2024 SC
260) decided on 03.01.2024, Supreme
Court relied upon its earlier authority in the
case of Chief Engineer, M.S.E.B and
Another Vs. Suresh Raghunath Bhokare
(2005) 10 SCC 465 (AIR 2005 SC 1622),
and vide paragraph 5, held thus:

"5. The entire basis of the
dismissal of the appellant depends upon the
factum of the alleged misrepresentation
attributed to the respondent. The Industrial
Court in its impugned order has noticed the
fact that the respondent was appointed in
April 1994 pursuant to the selection
procedure followed by the competent
authority and that he was selected by the
panel of Selection Committee consisting of
6 members which included the very same
Social Welfare Officer who had sent the
proposal including the name of the
respondent for appointment. It also noticed
the fact that the selection in question was
made after an oral interview and the
required
test
as
also
the
medical
examination. The Industrial Court also
noticed the fact that the appointment of the
respondent was confirmed after one-year
period and thereafter the respondent has
been working without any complaint. The
said Industrial Court also noticed the fact
that the termination of the respondent was
based on a showcause notice issued on 5-71999 which was replied to by the
respondent
on
17-7-1999
and
the
termination was made in a summary
procedure permissible under Rule 90(b) of
the Service Regulations.The Industrial
Court after perusing the pleadings and the
notice issued to the respondent came to the
conclusion
that
the
alleged
misrepresentation which is now said to be a
fraud was not specifically pleaded or
proved. In the show-cause notice, no basis
was laid to show what is the nature of fraud
that was being attributed to the appellant.
No particulars of the alleged fraud were
given and the said pleadings did not even
contain any allegation as to how the
appellant was responsible for sending the
so-called fraudulent proposal or what role
he had to play in such proposal being sent.
It also noticed from the evidence of Mr
Waghmare, Social Welfare Officer who
sent the proposal before the Labour Court
that he did not utter a single word as to
whether the said supplementary list was
ever
called
for
by
the
department
concerned or not. Thus applying the basic
principle of rule of evidence which requires
a party alleging fraud to give particulars of
the fraud and having found no such
particulars, the Industrial Court came to
the conclusion that the respondent could
not be held guilty of fraud. The said finding
of the Industrial Court has been accepted
by the High Court. Mr. Bhasme though
contended that the fraud in question was
played in collusion with the Social Welfare
Officer and 2 other employees of the Board
and action against the said 2 employees of
the Board has been taken, but by that itself
we are unable to accept the argument of
Mr. Bhasme that there is material to
support the contention of the Board that the
appellant had also contributed to making
4 All. Basu Dev Singh Vs. State of U.P. & Ors.
259
the misrepresentation at the time of
applying for the job with the Board. In the
absence of any such particulars being
mentioned in the showcause notice or at the
trial, attributing some overt act to the
respondent, we do not think the Board can
infer that the respondent had a role to play
in sending a fraudulent list solely on the
basis of the presumption that since the
respondent got a job by the said
proposal, the said list is a fraudulent one.
It was the duty of the Board to have
specifically produced the material to
prove that the respondent himself had the
knowledge of such a fraud and he
knowingly or in collusion with other
officials indulged in this fraud. Since
there is no such material on record, on
the facts of the instant case, the Industrial
Court and the High Court have come to
the right conclusion that the alleged
fraud has not been established by the
appellants, hence, this is not a fit case in
which interference is called for. This
appeal, therefore, fails and the same is
dismissed."
(emphasis added)

10. Thus, the Court took a view that
if the beneficiary is not liable to be
charged with any misrepresentation or
any
kind
of
involvement
in
any
conspiracy
for
securing
such
appointment, such a teacher cannot be
dismissed
from
service
for
such
irregularity in appointment. Once, the
appointment has been made and a teacher
has been made to continue for a very long
time like two decades or more, now to
fire such a teacher by one stroke of pen
only on the ground that some despatch
register did not show to be addressed to
the institution granting approval to the
petitioner, is not justifiable. Further, it
has been held in the said judgment that if
there is no cancellation of appointment
order or cancellation of approval order,
then such teacher is liable to be treated in
the service. The Court in that case has also
held vide paragraph No.34 which reads
thus:

"34. We feel that the appellants
were not at fault and the State could not
have abruptly stopped their salaries.
Accordingly, we set aside the judgments of
the High Court dated 15.09.2021 in
Special Appeal Nos. 1435/2013 and
1445/2013 and direct that the State shall
pay the salaries of the appellants for the
period from 25.06.1999 till January, 2002
in full. We also direct that insofar as the
period from October, 2005 till today is
concerned, the State shall pay the
appellants 50% of the backwages. Since
the appointment order and the approval
order are still in force, we declare that the
appellants have always been and are
deemed to be in service. Apart from 50%
backwages, as ordered above, we direct
that all consequential benefits, including
seniority, notional promotion, if any, and
fitment of salary and other service benefits
due, be granted to the appellants. We
direct the State to comply with these
directions within four weeks from today.
We also direct that the appellants be
allowed to commence work within the said
period of four weeks."

11. Thus, there being no finding of
fraud or misrepresentation at the end of
the petitioner or the Manager of the
Committee of Management under the
order impugned, the earlier order of
regularization cannot be said to have stood
cancelled
automatically
and
in
such
circumstances, therefore, the order passed
by the Regional Joint Director of Education
dated 19.03.2020 and the consequential
260 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed by the District Inspector of
Schools dated 20.03.2020, are held to be
bad for want of authority of law.

12. Besides the above, it is also worth
noticing that the matter of legality of the
appointment is sought to be inquired into in
a seniority dispute. The law is well settled
that in the matters of the seniority dispute,
the legality and validity of an appointment
neither can be questioned, nor can even be
gone into, instead it is only to be seen as to
who was appointed when and whether
under the relevant regulations of the
Intermediate Education Act 'A' is senior to
'B' or 'B' is senior to 'A'. Questioning the
legality of appointment in the matter of
seniority is going too far to adjudicate upon
an issue which is never raised. A Full
Bench judgment of this Court in the case of
Asha Saxena Vs. S.K. Chaudhari and
others reported in 1991(2) UPLBEC 1202
held that while deciding the matter of
seniority even the power under Section
16E(10) ought not to have been exercised
at a very belated stage. Referring to a
judgment of the Supreme Court in the case
of Ram Sarup Vs. State of Haryana (AIR
1978 SC 1536), the Full Bench has
observed thus:

"That the three teachers should
be deemed to have been appointed from the
date
on
which
they
would
acquire
qualifications for being promoted to the
post of lecturers. At the very outset it may
be mentioned that the earlier writ petition
of Dr. Asha Saxena had been allowed
inasmuch as complete material had not
come before the Full Bench regarding the
fact that Dr. Asha Saxena had filed
objections immediately after her promotion
which had been rejected and had become
final. It has also not been brought to the
notice of the Full bench that seniority list
grade-wise was prepared every year after
the incorporation of Chapter III in the year
1976. It may also be noted that Dr. Asha
Saxena has not challenged the validity of
the appointment and had only made a
challenge to the seniority list. One fails to
understand that after a lapse of nearly 17
years the Regional Inspectress of Girls
Schools referred the matter to the Director
of Education for adjudicating the question
as to whether the appointments were valid
or not. In our opinion, the exercise of
power by the Regional Inspectress of Girls
Schools on the facts and circumstances of
the case is wholly arbitrary as that power
could not be exercised after lapse of 17
years. The objections filed by Dr. Asha
Saxena in the year 1986 which are
contained in Annexure "3" to the writ
petition are liable to be rejected inasmuch
as the ground that she did not know the
provision of Clause 3(1)(bb) in Chapter II
was of no avail to her. The seniority lists
were being prepared year after year after
1975-76 and the objection filed by Dr.
Asha Saxena after the lapse of nearly 11
years was not liable to be entertained as
has been held by the Supreme Court in the
case of Malcom Lawrence Cecil D'Sousa
(1975 L.I.C. 816) (supra). In any view of
the matter, the appointments which were
existing for the last 17 years could not be
set aside after a lapse of such a long
period. Even the earlier Full Bench had
quashed
the
order of
the
Regional
Inspectress of Girls Schools referring the
matter under Section 16E(10) of the Act we
are also of the opinion that the aforesaid
order is liable to be quashed. It is true that
there is power under Section 16E (10) of
the Act to cancel the appointments but the
power has to be exercised within a
reasonable time. The appointments had
been made in the year 1973 and by no
stretch of imagination it can be said that
4 All. Mayank Mittal Vs. District Judge & Anr.
261
the exercise of that power after the /apse of
17 year by the Director of Education under
Section
16E(10),
on
the
facts
and
circumstances of the case can be said to be
exercise of a power within a reasonable
time. In our opinion, the order of the
Regional Inspec-tress of Girls Schools
referring the matter to the Director of
Education under Section 16E(10) is thus
liable to be quashed."
(emphasis added)

13. I have also gone through each
paragraphs of the counter affidavit filed on
behalf of the State-respondents and sworn
by the District Inspector of Schools, Mau
and I do not find there to be any pleadings
qua fraud or misrepresentation committed
by the petitioner or the Manager of the
Committee of the Management. If any
fraud was committed in the office of the
District Inspector of Schools, it cannot be
presumed that it was at the instance of the
manager or the assistant teacher, the
petitioner in this case. All these facts
should have been brought to the notice of
the Regional Joint Director of Education
when the regularization of the petitioner's
service was being considered. Having not
done so, on mere apprehension or prima
facie view, such impugned orders cannot be
passed.

14. In view of the above writ petition
succeeds and is allowed. The impugned
orders, passed by the Regional Joint
Director of Education dated 19.03.2020 and
the consequential order passed by the
District
Inspector
of
Schools
dated
20.03.2020, are hereby quashed. No order
as to cost.
----------
(2024) 4 ILRA 261
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2024
BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ A No. 4307 of 2024

Mayank Mittal ...Petitioner
Versus
District Judge & Anr. ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh, Sri Sumit Suri

Counsel for the Respondents:
C.S.C., Sri Sundeep Agarwal

A. Tenancy Law - U.P. Regulation of Urban
Premises Tenancy Act, 2021 - Section
35(1) - U.P. Regulation of Urban Premises
Tenancy Rules, 2021 - Rule 6, Rule 12 -
Pre-deposit for Appeal - Petitioner challenged
Rent Tribunal's order dated 11.03.2024 directing
pre-deposit of 50% of payable amount with
Rent Authority before pressing appeal - Held,
Section 35(1) mandates pre-deposit for appeal
to be maintainable, and expression "no appeal
shall lie" implies deposit with Rent Authority, not
Rent Tribunal - Rule 6 provides mechanism for
deposits, applicable to pre-deposits for appeals
- No provision in Act or Rules specifies deposit
with Rent Tribunal - Impugned order directing
deposit with Rent Authority upheld - No
illegality warranting interference under Article
226 - Petitioner granted liberty to seek
preponement of appeal hearing to avoid
execution of eviction order. (Para 9-13, 15)

Writ petition dismissed.

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Sri Nipun Singh, learned
counsel for the petitioner and Sri Sundeep
Agarwal, learned counsel representing the
plaintiff-respondent no. 3.

2. The learned Standing Counsel has
accepted notice of the Writ Petition on
behalf of the State-Respondents.