# Bhola Nath Singh v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-28
- **Case number:** Civil Misc. Writ Petition No. 3503 of 2010
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhola-nath-singh-v-state-of-u-p-and-others-41494
- **Pages:** 5

## Headnote

C.S.C.
U.P.
Secondary
Education
Service
Selection
Board-Rules
1998-
Rule11(2)(b)
and
12(b)-
Selection
of
Principal-Regular
Principal
retired-
vacancy
advertised
in
2008-When
requisition sent-admittedly Mr. A was
senior most lecturer retired but working
at the end of session i.e. 30.6.2010-
petitioner claim his name among two
senior
most
lecturer
may
also
be
forwarded as after retirement of Mr. 'A'
he
stood
at
serial
no.
2-heldmisconceived-only
those
two
senior
most lecturer is to require to participate
in
selection-whose
name
send
in
requisition.

Held: Para-11

In view of the aforesaid discussion, I
have no hesitation in holding that if by
the time the selection is made one or
both the senior most teachers retire,
then the consideration of the next one or
two senior most teachers would be
contrary to the scheme of the Rules.
Only such teachers are to be considered
whose names are sent along with
requisition under Rule 1(a)
Case law discussed:
[(1990) 1 UPLBEC 539].

## Text

1 All] Bhola Nath Singh V. State of U.P. and others
41
of the candidate which if he possessed
much before the last date of submission of
the application form and provided the
said documents are genuine and in case
they
are
selected,
to
give
all
consequential benefits. We are in the
entire agreement with the reasoning given
in the aforesaid judgment."

19. In view of the above, I am
categorically of the opinion that the marks
obtained by the petitioner in back paper as
a result of his appearing therein after the
last date of submission of the application
form cannot be allowed to be considered
by respondent No.2 for considering his
candidature for admission in Special
B.T.C. Course, 2008 since the same
would not relate back entitling him to
seek a direction to the respondent No.2 to
take into account the new marks which he
has obtained subsequently as a result of
his appearing in back paper. The writ
petition therefore lacks merit. Dismissed.

20. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 3503 of 2010

Bhola Nath Singh

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

Counsel for the Petitioner:
Sri R.K. Ojha

Counsel for the Respondents:
C.S.C.
U.P.
Secondary
Education
Service
Selection
Board-Rules
1998-
Rule11(2)(b)
and
12(b)-
Selection
of
Principal-Regular
Principal
retired-
vacancy
advertised
in
2008-When
requisition sent-admittedly Mr. A was
senior most lecturer retired but working
at the end of session i.e. 30.6.2010-
petitioner claim his name among two
senior
most
lecturer
may
also
be
forwarded as after retirement of Mr. 'A'
he
stood
at
serial
no.
2-heldmisconceived-only
those
two
senior
most lecturer is to require to participate
in
selection-whose
name
send
in
requisition.

Held: Para-11

In view of the aforesaid discussion, I
have no hesitation in holding that if by
the time the selection is made one or
both the senior most teachers retire,
then the consideration of the next one or
two senior most teachers would be
contrary to the scheme of the Rules.
Only such teachers are to be considered
whose names are sent along with
requisition under Rule 1(a)
Case law discussed:
[(1990) 1 UPLBEC 539].

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. With the consent of the learned
counsel for the parties - Sri R.K. Ojha for
the petitioner, learned Standing Counsel
for respondent no.1 and Sri A.K. Yadav
on behalf of respondent no.2, this matter
is being finally disposed of at this stage
itself under the Rules of the Court, since a
pure question of law has been raised.

2. The post of principal of Gopal
Vidyalaya
Inter
College,
Koraon,
Allahabad, was requisitioned to the
Commission under Rule 11 of the U.P.
Secondary Education Service Selection
Board Rules, 1998 (for short, '1998
Rules). Pursuant thereto an advertisement
was published in 2008. At the time when
42 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the requisition was made and also when
advertisement was published, Sri Shatru
Badhan Singh was at sl. no. 1 being the
seniormost teacher, Sri Gunraj Singh was
at sl. no.2 and the petitioner was at sl. no.
3.

3. The selection process for the said
post of principal took place in January,
2010 and call letters for interview were
issued on 16.12.2009. In the meantime,
Sri Shatru Badhan Singh retired, his date
of birth being 1.10.1947, after attaining
the age of superannuation, i.e. 62 years,
but he continued to serve the institution
till the end of the session, i.e. 30th June,
2010, in view of Regulation 21 of Chapter
III of the Regulations framed under UP
Intermediate Education Act, 1921.

Learned counsel for the petitioner
submits that since the interview are going
to be held in January, 2010, and Sri
Shatru Badhan Singh has already retired,
he (the petitioner) has become the second
seniormost teacher in the institution and,
therefore, he should be called for
interview. His submission is that two
seniormost teachers in the institution for
the purpose of selection on the post of
principal should be seen on the date when
the interview is going to be held and not
at an earlier point of time. He places
reliance on Rule 12(6) of 1998 of the
Rules.

4. He submits that the proviso to
sub-rule (6) to rule 12 mandates that two
senior most teachers in the institution are
to be called for interview and, therefore,
the crucial date for determining who are
the two senior most teachers is the date on
which the interview letters are issued or
when the interview is to be held.

5. However, I find no force in the
submission.

6. The procedure for making
recruitment for the post of principal or
headmaster is contained in rules 11 and
12. However, for our purpose Rule 11(1),
(2) (a), (b) and 12(6) are relevant and
reproduced below:

"11.
Determination
and
notification of vacancies.--(1) For the
purposes of direct recruitment to the post
of
teacher,
the
management
shall
determine the number of vacancies in
accordance
with sub-section (1) of
Section 10 and notify the vacancies
through the Inspector, to the Board in the
manner hereinafter provided.
(2)(a) The statement of vacancies for
each category of posts to be filled in by
direct recruitment including the vacancies
that are likely to arise due to retirement on
the last day of the year of recruitment,
shall be sent in quadruplicate, in the pro
forma given in Appendix "A" by the
Management to the Inspector by July 15
of the year of recruitment and the
Inspector shall, after verification from the
record of his office, prepare consolidated
statement of vacancies of the district
subject-wise in respect of the vacancies of
lecturer grade, and group-wise in respect
of vacancies of trained graduates grade.
The consolidated statement so prepared
shall, along with the copies of statement
received from the Management, be sent
by the Inspector to the Board by July 31
with a copy thereof to the Joint Director:
Provided
that
if
the
State
Government
is
satisfied
that
it
is
expedient so to do, it may, by order in
writing, fix other dates for notification of
vacancies to the Board in respect of any
particular year of recruitment:
1 All] Bhola Nath Singh V. State of U.P. and others
43
Provided further that in respect of the
vacancies existing on the date of the
commencement of these rules as well as
the vacancies that are likely to arise on
June 30, 1998, the Management shall,
unless some other dates are fixed under
the preceding proviso, send the statement
of vacancies by July 20, 1998 to the
Inspector and Inspector shall send the
consolidated statement in accordance with
this sub-rule to the Board by July 25,
1998.
Explanation.--For the purpose of this
sub- rule the word 'group-wise' in respect
of the trained graduates grade means in
accordance with the following groups,
namely:

(a) Language This group consists of the
subjects of Hindi, Sanskrit, Urdu, Persian
and Arabic.
(b) Science
This group consists of the
subjects of Science and Mathematics;
(c) Art and Craft
(d) Music
(e) Agriculture
(f) Home Science
(g) Physical Education
(h) General
This group consists of the
subjects not covered in any of the
foregoing groups.
(b) With regard to the post of
Principal or Headmaster, the Management
shall also forward he names of two senior
most teachers, along with copies of their
service records (including character rolls)
and such other records or particulars as
the Board may require, from time to time.
Explanation:- For the purpose of this subrule "senior-most teacher" means the
senior-most teachers in the post of the
highest
grade
in
the
institution,
irrespective of total service put in the
institution."
"12. Procedure for direct recruitment--
(1)..................
(6) The Board, having regard to the
need for securing due representation of
the candidates belonging to the Scheduled
Castes/Scheduled
Tribes
and
other
Backward Classes of citizens in respect of
the post of teacher in lecturers and trained
graduates grade, call for interview such
candidates
who
have
secured
the
maximum marks under sub-clause (4)
above/and
for
the
post
of
Principal/Headmaster, call for interview
such
candidates
who
have
secured
maximum marks under sub-clause (5)
above in such manner that the number of
candidates shall not be less than three and
not more than five times of the number of
vacancies.
Provided that in respect of the post of
the principal of Headmaster of an
institution the Board shall also in addition
call
for
interview
two
senior-most
teachers of the institution whose names
are
forwarded
by
the
Management
through Inspector under clause (b) of subrule (2) of Rule 11."

7. From a perusal of Rule 11 (2)(a) it
is evident that as and when a vacancy
occurs or is likely to occur a requisition
for making recruitment to the said
vacancy shall be sent by the management
in pro forma Appendix A by July 15 of
the year of recruitment. After verification
of the record by his office, the Inspector
shall prepare a consolidated list of
vacancies of the district subject-wise and
shall sent it to the Commission. Sub-rule
(b) of Rule 11(2) further makes it
obligatory for the management to send
names of two senior most teachers along
with copy of their service record to the
Commission. The management shall also
place such other record as the Board may
require from time to time. Sub-rule (4) of
44 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Rule 11 further directs that in any year of
recruitment the Inspector shall on the
basis of his office record declare the
vacancy and notify the same to the Board
if the Management fails to notify vacancy
by the date specified in sub-rule (2) of
Rule 11. The scheme of the rule makes it
very clear that the recruitment has to be
made with reference to the year of
recruitment in which the vacancy has
occurred and the requisition needs to be
sent to the Board. The obligation upon the
management to send names of the two
senior most teachers conferred by rule
11(2)(b) shows that the said names have
to be sent along with the requisition to be
sent under rule 11(2)(a), meaning thereby
that the names of senior most teachers
would not vary from time to time since
the names are to be sent along with the
requisition with reference to the direct
recruitment for the post of headmaster or
principal and only these names are to be
considered by the Board. Rule 12 (6)
makes it clear that only those teachers
whose names have already been received
by the Board, i.e. of the two senior most
teachers, shall be issued interview letters.
Proviso to rule 12(6) refers to the date
when names of such teachers have been
forwarded under rule 11(2)(b).

8. Learned counsel for the petitioner
submits that in case there is a delay in
selection and in the meantime the senior
most teacher retires, the very purpose of
sending
names
would
become
meaningless as none would be available
for consideration for the post of principal
or headmaster. If the contention of the
learned counsel is accepted, then with the
passage of time and delay, if any, names
of the senior most teachers would go on
varying and there shall be no certainty
about the names of the two senior most
teachers to be considered. However, a
perusal of rule 11 (2)(b) and 12(6)
collectively makes the contention of the
learned counsel untenable. The post of
principal or headmaster is to be filled in
by direct recruitment so a right has been
conferred upon two senior most teachers
with reference to date of vacancy to have
an opportunity to be considered for the
highest post in their institution, i.e.
Principal or the headmaster. It is not a
case of promotion so as to very from time
to time.

9.

A pari
materia
provision
contained in rule 4 (1)(ii) of the UP
Secondary Services Commission Rules,
1983, came up for consideration before a
Division Bench of this Court in Nand
Kishore Prasad Vs. UP Secondary
Education
Services
Commission,
Allahabad
and
others
[(1990)
1
UPLBEC 539] and this Court in
paragraph 4 and 5 of the judgement held
as under:

"4. Rule 4(ii) of the UP Secondary
Education Services Commission Rules,
1983 provides that in regard to the post of
head of an institution, the Management
shall also forward the names of two senior
most teachers copies of their service
records
and
such
other
record
or
particulars as the Commission may
require
from
time
to
time
for
consideration by the Commission when
the question of appointment of the
Principal of the Institution is to be
considered by the Commission.
5. Sub-rule (ii) of Rule 4, quoted
above, in our opinion, clearly intends that
on the date when the vacancy arose, on
that date, the management is called upon
to find out who are the two senior most
teachers whose names are to be forwarded
1 All] Purnamasi V. State of U.P. and another
45
to the Commission hence the date when
the vacancy arose would be the relevant
date for the purposes of Rule 4(ii). Merely
because of a subsequent event, if another
teacher becomes the senior most teacher
in the college, he does not have a right to
ask the manager to send his name also. If
the interpretation is not taken then the
result will be the process of selection by
the Commission will never be completed
as the name of the senior most teachers
would on changing and the process of
forwarding names will also continue. This
does not take away the right of the said
teacher to be considered for the post of
Principal of the Institution if he has
applied for the same. In the circumstances
so far as this petition is concerned, we do
not find any merit in the same. The
petition is accordingly dismissed."

10. Since rule 11(2)(b) of 1988
Rules is worded similarly, what has been
interpreted by the Division Bench in
Nand Kishore Prasad's case (supra), in
my view, it would apply to the
interpretation of rule 11(2)(b) of 1988
Rules and is consistent to the view I have
taken and I stand fortified from the
aforesaid Division Bench Judgement.
Learned counsel for the petitioner could
not place anything before to persuade me
to take a different view.

11. In view of the aforesaid
discussion, I have no hesitation in holding
that if by the time the selection is made
one or both the senior most teachers
retire, then the consideration of the next
one or two senior most teachers would be
contrary to the scheme of the Rules. Only
such teachers are to be considered whose
names are sent along with requisition
under Rule 1(a)

12. I, therefore, find no merit in the
writ petition. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 4475 of 2010

Purnamasi

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

Counsel for the Petitioner:
Sri Awdhesh Kumar Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India-Art. 226-Correction
of date of birth-on basis of Horoscopeadmittedly
petitioner
passed
High
School- date of birth recorded on basis of
High School certificate cannot be altered.

Held: Para-3

In a similar situation, the Supreme Court
in the case of State of M.P. Vs. Mohan Lal
Sharma reported in 2002(7) SCC Page
719 has rejected such a contention
founded on a horoscope as against a
matriculation certificate.
Case law discussed-
2002(7) SCC Page 719.

(Delivered by Hon'ble A.P. Sahi, J.)

1. The petitioner is claiming
correction of his date of birth on the basis
of a horoscope.

2. There is no provision under law
so as to raise a conclusive foregone
presumption in favour of the petitioner in
respect of the date of birth as indicated in