# Bhagwan Singh and others v. District Basic Shiksha Adhikari and Others

- **Citation:** (2012) 2 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-19
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-singh-and-others-v-district-basic-shiksha-adhikari-and-others-42290
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226cancellation of appointment as assistant
teacher
in
Primary
School-petitioner
were
appointed
on
compassionate
ground on class IVth post-representation
for appointment as assistant teacher
duly
recommended
by
Education
Superintendent-appointment
letter
issued-after joining their appointment
canceled with direction to join their
original post of class 4th-held-properafter joining as class 4th-compassionate
appointment can not be claimed as
assistant
teacher-recommendation
of
education superintendent meaninglesspetition dismissed.

Held: Para 21

Even if it is assumed that services on the
post of Assistant Teacher were vacant,
the same were to be filled up by
1044 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
promotion or by direct recruitment in the
manner prescribed in the Recruitment
Rule. The case of the petitioners is not
that they had taken their benefit under
the dying in harness rules for the first
time
as
benefits
of
employee
of
Government Servant who had died in
harness. Therefore, they had no right to
be re-appointed for a second time,
afresh, as Assistant Teacher under the
U.P.
Dependents
of
Government
Servants
Dying
in
Harness
Rules,
particularly when they had taken their
option and exhausted it earlier.

## Text

2 All] Bhagwan Singh and others V. District Basic Shiksha Adhikari and others
1043
him for non-observance of principles of
natural justice."

11. Similarly, in Haryana Financial
Corporation
&
Anr.
Vs.
Kailash
Chandra Ahuja; (2008) 9 SCC 31, the
Apex Court held that a party must satisfy
the Court as what prejudice has been caused
to it by non observance of those principles.

12. In the facts of the case, there is
absolutely no averment in the present writ
petition qua the petitioner having handed
over the official records or that the finding
recorded in that regard being bad. No
prejudice has been pleaded nor shown due
to non-supply of the enquiry report.

13. This Court made a pointed query
to the learned counsel for the petitioner to
point out from any pleading on record or
from the document, as to when the
petitioner handed over the official records,
which were in his custody while working as
Lekhpal before issuance of the order of
transfer. Learned counsel for the petitioner
hopelessly failed to refer to any pleading or
any evidence on record for disputing the
finding qua the official records have not
been handed over by the petitioner.

14. In these set of circumstances, this
Court has no hesitation to record that the
plea of violation of principles of natural
justice is only a technical plea, which has no
substance. Petitioner has hopelessly failed
to establish any prejudice which may have
been caused to him because of non-supply
of the enquiry report.

15. For the said reasons, this Court
finds no good ground to interfere with the
order of punishment.

16. The present writ petition is
accordingly dismissed.

17. Interim order, if any, stands
discharged.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition no. 3172 of 1996

Bhagwan Singh and others ...Petitioner
Versus
District
Basic
Shiksha
Adhikari
and
Others

 ...Respondents

Counsel for the Petitioner:
Sri R.N. Sharma

Counsel for the Respondents:
C.S.C.
Sri K.S. Shukla
Sri S.G. Hasnain

Constitution
of
India,
Article
226cancellation of appointment as assistant
teacher
in
Primary
School-petitioner
were
appointed
on
compassionate
ground on class IVth post-representation
for appointment as assistant teacher
duly
recommended
by
Education
Superintendent-appointment
letter
issued-after joining their appointment
canceled with direction to join their
original post of class 4th-held-properafter joining as class 4th-compassionate
appointment can not be claimed as
assistant
teacher-recommendation
of
education superintendent meaninglesspetition dismissed.

Held: Para 21

Even if it is assumed that services on the
post of Assistant Teacher were vacant,
the same were to be filled up by
1044 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
promotion or by direct recruitment in the
manner prescribed in the Recruitment
Rule. The case of the petitioners is not
that they had taken their benefit under
the dying in harness rules for the first
time
as
benefits
of
employee
of
Government Servant who had died in
harness. Therefore, they had no right to
be re-appointed for a second time,
afresh, as Assistant Teacher under the
U.P.
Dependents
of
Government
Servants
Dying
in
Harness
Rules,
particularly when they had taken their
option and exhausted it earlier.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

2. This writ petition has been filed
claiming that petitioners are working in
Different Basic Primary Schools under the
Control of Nagr Nigam, Agra. Petitioner no.
1, Bhagwan Singh was appointed on
28.04.1996 on the post of Class IV
employee in Balika Basic Primary School
Naya Gher, Agra on compassionate ground
in place of his mother late Shanti Devi who
expired on 12.12.1989. Petitioner no. 2 was
appointed on 19.07.1985 on compassionate
ground in place of his father late Jagannath
Prasad Dubey who was Headmaster in
Basic Primary School, Khawaspura, Agra,
Cantt. Agra. Petitioner no. 3 who was
initially appointed on 20.07.1990 on the
post of Class IV employee in Basic Primary
School Rajendra on compassionate ground
in place of his father Sri Ram Ji Lal
Srivastava who was Headmaster in Basic
Primary School, Motiya Ki Bagichi.

3. It has also stated that vide his letter
dated
27.06.1995,
The
Education
Superintendent (Shiksha Adhikshak) Nagar
Nigam,
Agra,
respondent
no.
2,
recommended the case of the petitioners to
respondent no. 1 mentioning therein that
122 posts of Assistant Teachers are vacant
and the petitioners may be appointed on any
posts.

4. Counsel for the petitioners submits
that all the petitioners were qualified to be
appointed as Assistant Teachers and theie
representations with regard to the same are
pending before the District Basic Education
Agra and in this regard the aforesaid letter
dated 27.06.1995 and 24.07.1995 were
issued recommending appointment of the
petitioners on the vacant posts of Assistant
Teachers that: respondent no.2 issued an
appointment
letter
dated
02.11.1995
appointing the petitioner no. 1 as Assistant
Teacher
in
Basic
Primary
School
Billochpura: petitioner no. 2 as Assistant
Teacher in Basic Primary School Nagla
Singho, Agra and petitioner no. 3 as
Assistant Teachers in Basic Primary School
Nagla Mahadeo, Agra.

5. Pursuant thereto all the petitioners
joined in their respective schools where they
had been appointed on the post of Assistant
Teacher
on
04.11.1995.
However,
respondent no. 1 thereafter issued a letter
dated 06.12.1995 to the petitioners for
showing cause within three days as to under
which circumstances, the petitioners were
given appointment under dependents of
deceased dying in harness Rules 1974 for
the reason that petitioners had already
exhausted their discretion of compassionate
appointment on Class-IV posts.

6. It is stated that without affording
any opportunity to the petitioner another
letter dated 11.12.1995, was issued by the
respondent no. 2 terminating the services of
the petitioners w.e.f. 06.12.1995, suo-moto,
from the post of Assistant teachers,
directing them to join there substantive
2 All] Bhagwan Singh and others V. District Basic Shiksha Adhikari and others
1045
posts as Class-IV employee on which they
had been given compassionate appointment.
Copy of this letter has been appended as
Annexures no. 11-A and 11-B to the writ
petition, respectively. Subsequently, the
Basic
Shiksha
Adhikari,
Agra
also
terminated the services of the petitioners
from the post of Assistant Teachers vide
letter dated 05.01.1996, appended as
Annexure no. 12 to the writ petition,
wherein it was stated that in absence of any
receipt or any reply within the stipulated
time pursuant to the show cause notice their
appointments are being canceled on the
ground that petitioners have obtained the
appointment by concealment of facts of
having already availed the benefit of
compassionate appointment earlier.

7. The order impugned aforesaid is
assailed by the petitioners on the ground
that respondent nos. 1 and 2 have no
jurisdiction to review their own orders
simply on false and flimsy grounds of
concealment of facts by the petitioner in
respect of earlier appointment of Clalss IV
posts under dying in harness rules. It is also
assailed on the ground that it is obvious
from letter dated 24.07.1995 (Annexure no.
1 to the writ petition) that respondents were
aware of the facts that petitioners were
working on the post of Class IV employee
having been appointed on the said posts
under the dying in harness rules. It is stated
that in fact the petitioners have not
concealed any fact from the respondents
and the order impugned passed by
respondent no. 1 is illegal as he cannot sit in
appeal over his own judgment.

8. It is urged that respondent no. 1 was
estopped in law from passing any order
canceling appointment of the petitioners as
all the facts regarding compassionate
appointment of the petitioners on Class Iv
employee were in his knowledge: that
respondent no. 1 has no jurisdiction to pass
the impugned order as it was wholly against
the principles of legitimate expectations in
the circumstances of the case and even
otherwise also the act of the respondent in
passing the impugned order will cast stigma
in the services of the petitioners in future as
the same contains false statement of
concealment of facts for appointment on the
basis of Assistant Teachers.

9. It is stated that in view of the facts
and circumstances, the petitioners would
suffered irreparable loss and injury in case
the order impugned dated 11.12.1995
passed by respondent no. 2 (appended as
Annexure nos. 11-A and B) and impugned
order dated 05.01.1996 passed by the
respondent no. 1 appended as Annexure no.
12 to the writ petition is also not quashed.

10. In the counter affidavit filed by
Chief Standing Counsel on behalf of U.P.
Basic Shiksha Parishad, it is averred that
petitioners had been given appointment as
Class IV employee as per Rules and the
petitioners having onces accepted the
appointment on Class IV posts, cannot
claim any other appointment under the
category of Dependant of persons dying in
harness rules. They could however, make an
application for fresh appointment as general
candidate, to be appointed under the
relevant recruitment Rules.

11. Learned Standing Counsel has
urged that the petitioners have procured the
appointment as Assistant Teachers by
playing fraud on the concerned department
as appointment of these posts were procured
by the petitioners without disclosing the
facts that they have already availed the
benefits under the category of dependent of
government employee under dying in
1046 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
harness Rules. Moreover, the appointment
of the petitioners as Assistant Teacher was
conditional subject to termination without
any notice if it was found that any
information given by them was concealed.
It is stated that even otherwise, the services
of the petitioners being purely temporary
could be terminated without any notice but
in the instant case apart from above,
temporary services of the petitioners as
Assistant Teacher were terminated as soon
as fraud payed by them came to the
knowledge of the respondent-authorities by
giving them show cause notice, which the
petitioner deliberately avoided.

12. In the circumstances, the
department having no other alternative or
option, other than to proceed on the basis of
record and the facts which had not been
controverted by the petitioners before
termination of their services.

13. In the rejoinder affidavit filed on
behalf of respondents no. 1, 2 and 3, the
facts averred in the writ petition have been
reiterated. However, in addition, it has been
stated that the petitioners categorically
denied from guilty of playing fraud and
allegations in this respect has been made
irresponsible only with ulterior motive to
prejudice the Court.. The allegation of fraud
played by the petitioners is said to be
nothing but an eye wash, which is apparent
from the detailed fact mentioned in the writ
petition. It has also been reiterated that
neither
any
fact
was
concealed
or
misrepresented nor any fraud was played by
the petitioners for being appointed as
Assistant Teachers.

14. A supplementary affidavit on
behalf of the petitioners has also been filed
wherein it has been stated that petitioner no.
2 has passed B.A. Final with Arts subject in
1995 from Agra University, Agra and
thereafter during the year 1997 he has
passed M.A. with Sanskrit Subject from
Agra University. Copy of the mark-sheeet
are appended as Annexure no. 2 to the
supplementary affidavit.

15. Similarly petitioner no. 3 is said to
have been passed High School in 1982 and
Intermediate Education in 1991 form U.P.
at Allahabad. A copy his mark-sheet has
been appended as Annexure no. 3 to the
Supplementary affidavit. It is stated that
petitioner no. 1, Bhagwan Singh passed
high school in 1966 from U. P. High School
Board and intermediate in 1970 from
Intermediate Education U.P. Allahabad as a
regular students of Muphide-E-Aam Inter
College Agra and has passed B.Sc degree in
1977 with science subject from Agra
University Agra. Copy of the same are
appended as Annexure no. 1 to the
supplementary affidavit.

16. Counsel for the petitioners has
placed the aforesaid mark-sheet and Rule 10
of U.P. Basic Shiksha Karmachari Varg
Niyamawali, 1993 which provided the
academic qualification for appointment of
Assistant Teachers in the Primary School
and in the Junior High School.

Rule 10 reads as under:

"'kSf{kd ;ksX;rk& U;wure 'kSf{kd ;ksX;rk
fuEuor gksxh%&

d- ulZlh fo?kky;ksa dh v?;kfidk,a& ekU;rk
izkIr izf'k{k.k fo?kky; ls izkIr ulZjh izf'k{k.kA

[k- twfu;j csfld fo?kky;ksa ds v?;kid@
v?;kfidk& izf'kf{kr gkbZ LdwyA iqjkus izf'kf{kr twfu;j
gkbZ Ldwy mRrh.kZ v?;kid@ v?;kfidk Hkh fu;qDr
fd;s tk ldrs gSaSA
2 All] Bhagwan Singh and others V. District Basic Shiksha Adhikari and others
1047

x- lhfu;j csfld fo?kky;ksa esa ftu fo"k;ksa ds
v?;kid@ v?;kfidk dh lh/kh HkrhZ gksuh gS& mDr
fo"k; ysdj b.VjehfM,V rd izf'kf{krA"

17. On the basis of above mark-sheet
and Rule 10, it is argued that petitioners
were entitled to be appointed as Assistant
Teacher
in
consonance
with
their
educational qualification.

18. After hearing counsel for the
parties and on perusal of record, it is
apparent that petitioners had been appointed
as Class IV employee under the U.P.
Dependents of Government Servant Dying
in Harness Rules 1974. They had exercised
their option and had joined their posts. The
compassionate appointment is an exception
to normal mode of recruitment. Once the
petitioners exercised the same their option
on existed post, they could not have
exercised their option again for the same
cause
which
was
redressed
by
the
appointment as Class-IV employees.

19. Petitioners were to be promoted
as Assistant Teacher, they could have
only been promoted in accordance with
Rules or in case of vacancy depart to be
filled up by direct recruitment in the
manner prescribed in the aforesaid rules.
The petitioners were given show cause
notice as to why their appointment as
Assistant Teacher be not cancelled for
concealment of facts. The show cause
notice was not replied to by the
petitioners and as such it can not be said
that no opportunity was given to the
petitioners before cancellation of their
appointment as Assistant Teacher. The
show cause notice clearly states that
petitioner had to explain for their
appointment as Assistant Teacher which
they had obtained by concealment of
facts that they had been earlier appointed
on
compassionate
ground
be
not
cancelled. The show cause notice read
thus:

" dkj.k crkvks uksfVl
 dkj.k crkvks uksfVl
 dkj.k crkvks uksfVl
 dkj.k crkvks uksfVl

vkidh fu;qfDr f'k{kk foHkkx ds vUrZxr
'kklu dh jktkKk la[;k@ 850@15-5-84-30@82
fnukad 8&4&84 ds vuqlku e`rd vkfJr dksVs ds
vUrZxr prqFkZJs.kh deZpkjh ds in ij uxj fuxe
vkxjk ds vUrxZr dh xbZ FkhA KkrO; gks fd
mijksDr ykHk vkidks iwoZ esa iznku dj fn;k x;k
FkkA

vkius mijksDr rF;ksa dks Nqikrs gq, e`rd
vkfJr ds :i esa bl dk;kZy; dks nqokjk vkosnu
i= fn;k vkSj bl dk;kZy; ds vkns'k la[;k@ys[kk
4684&87@95&96 fnukad 2&11&95 ds }kjk iqu%
fu;qfDr izkIr dj yh tks vki }kjk rF;ksa dks
Nqikdj] foHkkx dks /kksdk nsdj]'kklukns'k ds fo:)
vfu;fer :i ls fu;qfDr izkIr dh xbZ gSA tks
voS/kkfud gS rFkk Lor% gh lekIr gks xbZ gS tSlk
fd fu;qfDr i= esa iwoZ esa gh vafdr gSA

vki rhu fnu ds vUnj bl dk;kZy; dh
fyf[kr :i esa Li"V djsa fd vki }kjk ;g dqdwR;
fdu ifjfLFkfr;ksa esa fd;k FkkA D;kas u vkids bl
d`R; ds fy, vkiuds fo:) dBksj vuq'kk'kukRed
dk;Zokgh djrs gq, vkids iwoZ in dks Hkh lekIr
dj fn;k tk;A

ftyk csfld f'k{kk vf/kdkjh

vkxjkA"

20. It appears that instead of
abolishing even the earlier post of Class
IV
employee
and
taking
strict
disciplinary action only their services
from the post of Assistant Teacher had
been cancelled by following order:-

"fu;qfDr fujLrhdj.k
fu;qfDr fujLrhdj.k
fu;qfDr fujLrhdj.k
fu;qfDr fujLrhdj.k

bl dk;kZy; ds vkns'k la[;k @ ys[kk @
fn0@ 5473&77@95&96 fnukads 6&12&95 ds }kjk
fn;s x;s dkj.k crkvksa uksfVl dk tokc fu/kkZfjr frfFk
rd bl dk;kZy; dks izkIr u gksus ds dkj.k bl
1048 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
dk;kZy; ds vkns'k la[;k@ ys[kk@ 4684&87@95&96
fnukad 2&11&95 ds }kjk vkius rF; fNikdj] foHkkx
dks /kksdk nsdj] vfu;fer :i ls 'kklukns'k ds foijhr
izkIr dh xbZ v?;kid in ij fu;qfDr rRdky izHkko ls
fujLr dh tkrh gSA

ftyk csfld f'k{kk vf/kdkjh

vkxjkA"

21. Even if it is assumed that services
on the post of Assistant Teacher were
vacant, the same were to be filled up by
promotion or by direct recruitment in the
manner prescribed in the Recruitment Rule.
The case of the petitioners is not that they
had taken their benefit under the dying in
harness rules for the first time as benefits of
employee of Government Servant who had
died in harness. Therefore, they had no right
to be re-appointed for a second time, afresh,
as Assistant Teacher under the U.P.
Dependents of Government Servants Dying
in Harness Rules, particularly when they
had taken their option and exhausted it
earlier.

22. For all the reasons stated above
the appointment of the petitioners as
Assistant Teacher which was rightly
cancelled. It may be that the respondent no.
2 had by his letter dated 27.06.1995,
recommended the appointment of the
petitioners but that recommendation could
not have been given weight as the case of
the petitioners on the post of Assistant
Teacher was not governed by appointment
under dying in harness rules particularly
after having availed the benefits of
appointment on compassionate ground
under the U.P. Dependants Governemtn
Servant Dying in Harness Rules earlier.

23. For all the reasons stated above,
the writ petition is dismissed.

24. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2012

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE ADITYA NATH MITTAL, J.

Civil Misc. Writ Petition No. 922 of 2012

Deep Kumar Tewari

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.P. Singh
Sri Ghaus Beg

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-fitness
certificate
of
vehicle-without
paying
arrear of Road Tax-argument both are
distinct one-hence petitioner can not be
compelled to deposit Road Tax-heldprovisions of Section 39, 56 and 66 of
Motor
Vehicle
Act
1988
read
with
section-4 (2) (A) of U.P. Motor Vehicle
Taxation Act 1997 are mandatory-each
and every conditions are necessary for
state carriage on transport vehicle to
play on public road-no such relief can be
granted-petition dismissed.

Held: Para 14

he interdependence of the provisions of
Section 39, 56 and 66 of Motor Vehicle
Act, 1988 and the provisions of the U.P.
Motor Vehicle Taxation Act, 1997, are for
the purposes of maintaining the strict
regime
of
regulations
to
allow
a
transport vehicle or stage carriage to ply
on the road. Each of the conditions is
necessary for plying the vehicle and thus
it cannot be said that the vehicle may be
subjected
to
fitness
certificate,