# C/M Bharti Inter College, Dhatari, Firozabad & Anr v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1616
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-03
- **Case number:** Special Appeal No. 87 of 2020
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-bharti-inter-college-dhatari-firozabad-anr-v-state-of-u-p-ors-45547
- **Pages:** 5

## Headnote

Law-
Promotion
-
Intermediate
Education
Act,
1921:
Section 32; Uttar Pradesh Secondary
Education Services Selection Board Act,
1982: Sections 2(i), 12, 32, 35; Uttar
2 All. C/M Bharti Inter College, Dhatari, Firozabad & Anr. Vs. State of U.P. & Ors.
1617
Pradesh Secondary Education Services
Selection Board Rules, 1998: Rule 14 - In
order to be considered for promotion for the
Lecturer grade, the teacher concerned is to
possess the qualifications prescribed for the
post and should have completed five years
continuous regular service as such on the first
day of the year of recruitment. In the present
case, the order impugned was modified to the
extent that apart from other facts, the question
regarding eligibility for the promotional post
was also left open for DIOS to examine, before
submitting the papers to Regional Level
Committee. (Para 13, 16)

Special Appeal disposed of. (E-4)

Special appeal against the judgment and
orders dated 17.01.2020, passed by High
court of Allahabad.

## Text

1616 INDIAN LAW REPORTS ALLAHABAD SERIES
well established that, provided the requisite
grounds exist, certiorari will lie although a
right of appeal has been conferred by statute.
(Halsbury's Laws of England, 3rd Ed., Vol. 11,
p. 130 and the cases cited there). The fact that
the aggrieved party has another and adequate
remedy may be taken into consideration by the
superior court in arriving at a conclusion as to
whether it should, in exercise of its discretion,
issue a writ of certiorari to quash the
proceedings and decisions of inferior courts
subordinate to it and ordinarily the superior
court will decline to interfere until the
aggrieved party has exhausted his other
statutory remedies, if any. But this rule
requiring the exhaustion of statutory remedies
before the writ will be granted is a rule of
policy, convenience and discretion rather than
a rule of law and instances are numerous
where a writ of certiorari has been issued in
spite of the fact that the aggrieved party had
other adequate legal remedies."

25. The mere existence of alternate
forums where the aggrieved party may secure
relief does not create a legal bar on a High
Court to exercise its writ jurisdiction. It is a
factor to be taken into consideration by the
High Court amongst several factors..."

9. Having regard to the facts of the case,
and in particular the fact that one of the
principal grounds sought to be raised to assail
the order impugned in the writ petition is that
the statutory authority has not acted in
accordance with the provisions of the relevant
statutory provisions, this Court is of the view
that the writ petition ought to have been heard
upon exchange of affidavits and only after
consideration of what has been stated by the
respective parties in their affidavits a final
decision ought to have been taken in the
matter.

10. As such, we are of the view that the
impugned judgment and order cannot be
sustained and is liable to be set aside and is
accordingly set aside.

11. The writ petition, being Writ - A
No.-19882 of 2019 (Dr. Smt. Abha
Sharma vs. State of U.P. and 5 others)
shall be heard finally upon exchange of
affidavits.

12. Counter affidavit to be filed
within four weeks. Rejoinder thereto, if
any, be filed within two weeks therefrom.

13. List this matter on 16.3.2020
before
the
learned
Bench
having
appropriate determination.
----------

(2020)02ILR A1616

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 87 of 2020

C/M
Bharti
Inter
College,
Dhatari,
Firozabad & Anr. ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Yogesh Kumar Saxena

Counsel for the Respondents:
Sri Mata Prasad, Sri Anil Bhushan, Sri
Pratik Srivastava

A.
Service
Law-
Promotion
-
Intermediate
Education
Act,
1921:
Section 32; Uttar Pradesh Secondary
Education Services Selection Board Act,
1982: Sections 2(i), 12, 32, 35; Uttar
2 All. C/M Bharti Inter College, Dhatari, Firozabad & Anr. Vs. State of U.P. & Ors.
1617
Pradesh Secondary Education Services
Selection Board Rules, 1998: Rule 14 - In
order to be considered for promotion for the
Lecturer grade, the teacher concerned is to
possess the qualifications prescribed for the
post and should have completed five years
continuous regular service as such on the first
day of the year of recruitment. In the present
case, the order impugned was modified to the
extent that apart from other facts, the question
regarding eligibility for the promotional post
was also left open for DIOS to examine, before
submitting the papers to Regional Level
Committee. (Para 13, 16)

Special Appeal disposed of. (E-4)

Special appeal against the judgment and
orders dated 17.01.2020, passed by High
court of Allahabad.

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Yogesh Kumar Saxena,
learned counsel for the appellants, Sri
Mata Prasad, learned Standing Counsel for
the
State-respondents
and
Sri
Anil
Bhushan, learned Senior Advocate assisted
by Sri Pratik Srivastava, learned counsel
appearing for the fourth respondent.

2. The present intra-court appeal has
been
filed
against
the
order
dated
17.01.2020 passed in Writ-A No.875 of
2020 (C/M Bharti Inter College, Firozabad
and another Vs. State of U.P. and 3
others).

3. Before the writ court, the order
dated 27.12.2019 passed by the Joint
Director of Education, Agra Division,
Agra had been challenged whereunder a
direction
had
been
issued
to
the
Committee
of
Management
of
the
institution in question (the appellant
herein) to forward the requisite papers to
the
District
Inspector
of
Schools,
Firozabad
(DIOS)
with
a
further
stipulation that the papers which were
submitted would be examined by the
Inspector and transmitted to the Regional
Level Committee for consideration of the
claim of the fourth respondent for
promotion.

4. The aforementioned order passed by
the Joint Director of Education was pursuant to
directions issued in an earlier judgment and
order dated 08.10.2018 passed in Writ-A
No.21639 of 2018 (Mahesh Chandra Vs. State
of U.P. and 3 others) and after due
consideration of the objections of the
Committee of Management.

5. The arguments sought to be raised
before the learned Single Judge that the fourth
respondent was not possessing M.A. Degree as
on the date of occurrence of vacancy i.e.
01.07.2008, was repelled for the reason that no
such contention had been raised by the
Committee of Management in its objections
dated 11.12.2019 filed before the Joint
Director of Education when the matter was
being considered by the said authority
although detailed written objections had been
filed.

6. Learned counsel appearing for the
appellants has, however, contended that in
order to be considered for promotion the
teacher concerned has to possess the necessary
eligibility as on the first day of the year of
recruitment, which in the present case is
01.07.2008, and according to him, the fourth
respondent does not fulfil the eligibility
criteria. As such, the direction to forward his
papers to the Educational Authorities, is legally
unsustainable.

7. In order to appreciate the
controversy,
the
necessary
statutory
framework for recruitment by promotion
1618 INDIAN LAW REPORTS ALLAHABAD SERIES
in an institution recognised under the
Intermediate Education Act, 1921 may be
adverted to.

8. The Uttar Pradesh Secondary
Education Services Selection Board Act,
1982
was
enacted
to
provide
for
establishment of a Secondary Education
Service Selection Board for the selection of
teachers in institutions recognised under the
Intermediate Education Act, 1921.

9. Section 2(l) defines the 'year of
recruitment' as follows:-

"(l) 'Year of recruitment' means a
period of twelve months commencing from
first day of July of a calendar year".

10. Chapter III of the Act deals with
the procedure for selection by promotion.
Section 12, which is a part of Chapter III, is
in the following terms:-

"12. Procedure of selection by
promotion.--(1) For each region, there shall
be a Selection Committee, for making
selection of candidates for promotion to the
post of a teacher, comprising

(i) Regional Joint Director of
Education: -- Chairman

(ii) Senior most Principal of
Government

Inter College in the region: --
Member

(iii) Concerned District Inspector
of Schools -- Member/ Secretary

(2) The procedure of selection of
candidates for promotion to the post of a
teacher shall be such as may be prescribed."

11. Section 32 stipulates that the
provisions contained in the Intermediate
Education Act, 1921 and its regulations
would continue to be in force insofar as they
are not inconsistent with the provisions of
the Act or Rules or Regulations made under
it, inter alia, for the purpose of selection,
appointment and promotion in the rank of a
teacher.

12. In exercise of the Rule making
powers under section 35 of the Act, 1982,
the Uttar Pradesh Secondary Education
Services Selection Board Rule, 1998 were
made. The procedure for recruitment by
promotion is provided for under Rule 14
of the aforementioned Rules, and the same
is as follows:-

"14.
Procedure
for
recruitment by promotion.--(1) Where
any vacancy is to be filled by promotion,
all teachers working in Trained graduates
grade or Certificate of Teaching grade, if
any,
who
possess
the
qualifications
prescribed for the post and have completed
five years continuous regular service as
such on the first day of the year of
recruitment
shall
be
considered
for
promotion to the Lecturers grade or the
Trained graduates grade, as the case may
be, without their having applied for the
same.

Note.--For the purposes of this
sub-rule, regular service rendered in any
other recognized institution shall be
counted for eligibility, unless interrupted
by removal, dismissal or reduction to a
lower post.

(2) The criterion for promotion
shall be seniority subject to the rejection of
unfit.

(3)
The
Management
shall
prepare a list of teachers referred to in subrule (1), and forward it to the Inspector
with a copy of seniority list, service
records, including the character rolls, and a
2 All. C/M Bharti Inter College, Dhatari, Firozabad & Anr. Vs. State of U.P. & Ors.
1619
statement in the pro forma given in
Appendix 'A'.

(4) Within three weeks of the
receipt of the list from the Management
under sub-rule (3), the Inspector shall
verify the facts from the record of his
office and forward the list to the Joint
Director.

(5) The Joint Director shall
consider the cases of the candidates on
the basis of the records referred to in
sub-rule (3) and may call such additional
information
as
it
may
consider
necessary. The Joint Director shall place
the
records
before
the
Selection
Committee referred to in sub-section (1)
of Section 12 and after the Committee's
recommendation, shall forward the panel
of selected candidates within one month
to the Inspector with a copy thereof to
the Management,

(6) Within ten days of the
receipt of the panel from the Joint
Director
under
sub-rule
(5),
the
Inspector shall send the name of the
selected candidates to the Management
of the institution which has notified the
vacancy and the Management shall
accordingly on authorization under its
resolution issue the appointment order
in the pro forma given in Appendix 'F'
to the such candidate."

13. As per the aforementioned
procedure prescribed under Rule 14, in
order to be considered for promotion to
the
Lecturer
grade,
the
teacher
concerned
is
to
possess
the
qualifications prescribed for the post
and should have completed five years
continuous regular service as such on
the first day of the year of recruitment.

14. Learned Senior Advocate has
pointed out that as per the order dated
27.12.2019, which was impugned in
the writ petition, the direction is to the
Committee of Management to forward
the papers to the DIOS with a further
stipulation that the Inspector would
examine the papers as per the relevant
Rules and thereafter forward the same
to the Regional Level Committee.

15. Learned Senior Advocate
submits that in terms of the directions
under the order impugned, it would be
open to the Inspector to examine the
proposal sent by the Committee of
Management, including the fulfilment
of the eligibility criteria by the fourth
respondent, before the papers are
submitted
to
the
Regional
Level
Committee for further consideration.

16. Having regard to the facts of
the case and as agreed to by the counsel
for
the
parties,
the
order
dated
17.01.2020 passed by the learned Single
Judge is modified by providing that the
appellant - Committee of Management
would forward the necessary papers
with regard to the claim of the
petitioner for promotion on the post of
Lecturer in Hindi at the institution in
question along with the relevant records
and the DIOS would thereafter verify
the facts including the question of
eligibility of the fourth respondent for
the promotional post and accordingly
transmit the papers to the Regional
Level
Committee
to
proceed
in
accordance with law.

17. The order of the writ court is
modified to the extent indicated above.

18. The special appeal stands
disposed of accordingly.
----------
1620 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A1620

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.02.2020

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Special Appeal No. 263 of 2014

The Institute of Chartered Accountants of
India ...Appellant
Versus
Ashutosh Nigam & Anr. ...Respondents

Counsel for the Appellant:
Amit Jaiswal

Counsel for the Respondents:
A.S.G.,
Ajay
Kishor
Pandey,
Satish
Chandra Rai, Sudeep Kumar

A. Civil Law-Education - Re-evaluation
of answer sheet - Chartered Accountants
Act,
1949;
Chartered
Accountant
Regulation, 1988: Regulation 39(7) - The
Regulation
39(7)
only
permits
the
Council/Institute to amend the result in
any case, where it is found to be affected
by error, malpractice, fraud, improper
conduct or other matter, of whatever
nature. The Court in absence of any
provision,
neither
can
direct
for
reevaluation, nor can act as an expert and
evaluate the answers and direct to award
numbers as per its opinion. (Para 17, 19)

Special Appeal allowed. (E-4)

Precedent followed:

1. Board of Secondary Education Vs.
Pravas Ranjan Panda and another, (2004)
13 SCC 383 (Para 5)

2.
Himachal
Pradesh
Public
Service
Commission
Vs.
Mukesh
Thakur
and
another, (2010) 6 SCC 759 (Para 5)
3. Maharashtra State Board of Secondary and
Higher Secondary Education and another Vs.
Paritosh Bhupesh Kurmarsheth, AIR 1984 SC
1543; (1984) 4 SCC 27 (Para 5, 15)

4. The Secretary, All India Pre-Medical / PreDental Examination, C.B.S.C. and others Vs.
Khushboo Shrivastava and others, (2014) 14
SCC 523 (Para 16)

5. Ran Vijay Singh and others Vs. State of U.P.
and others, 2017 SCC Online SC 1448 (Para 18)

Precedent distinguished:

1. Manish Ujwal and others Vs. Maharishi
Dayanand Saraswati University and others,
(2005) 13 SCC 144 (Para 9)

2. High Court of Tripura through the Registrar
General Vs. Tirtha Sarathi Mukherjee and
others, 2019 SCC Online SC 139 (Para 10)

3. Saumitra Gigodia Vs. Union of India and
others, 2018 (2) ALJ 98 (Para 11)

Present petition challenges judgment and
order
dated
28.04.2013,
passed
by
learned Single Judge in WP No. 5887(MS)
of 2013.

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

1. Heard Sri Amit Jaiswal, learned
counsel for the appellant and Sri Sudeep
Kumar, learned counsel for the opposite
party no.1 and Sri Ajay Kishore Pandey,
learned counsel for opposite party no.2.

2. Facts, in brief, of the present case
are that Institute of Chartered Accountants
of India (herein after referred as ''Institute')
is a statutory body created by an Act of
Parliament viz the Chartered Accountants
Act,1949 (hereinafter referred at ''Act').
Further , as per regulations which were
framed by the Institute a person who has to
become a Chartered Accountant has to