# C/M, Handia Post Graduate College, Prayagraj v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 565
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-06
- **Case number:** Writ A No. 11461 of 2019
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-handia-post-graduate-college-prayagraj-v-state-of-u-p-anr-51693
- **Pages:** 5

## Headnote

C.S.C.

U.P. Higher Education - Appointment to
Class III & IV posts - Ban imposed by G.O.
dated 15.03.2012 - Lifting vide G.O. dated
11.07.2013 - Scope.
Once ban stood lifted on 11.07.2013, no
restriction
remained
operative
on
filling
vacancies arising thereafter - Director's stand
that ban continued for vacancies occurring after
11.07.2013 is misconceived - Lifting of ban is
absolute, without any rider. (Paras 8-11, 14)

Appointment - Approval by Director of
Higher Education - Refusal on ground of ban
- Validity.Committee of Management was
permitted on 07.01.2016 to proceed with
selection for two posts of Junior Clerk and one
post of Lab Assistant - Despite such conscious
permission, Director disapproved selection of
one Junior Clerk and Lab Assistant citing ban -
Held, order unsustainable in law. (Paras 6, 8,
13, 15)

Ban on recruitment - Nature.
Ban orders are temporary executive measures,
not absolute or perpetual - Once lifted, they
cannot
override
statutory
rules
governing
recruitment - To construe otherwise would
permit executive fiat to supersede statutory
scheme. (Para 14)

Held :Order dated 05.11.2018 insofar as it
disapproves appointments of Arvind Kumar
Singh (Junior Clerk) and Vineet Kumar Yadav
(Lab Assistant) quashed - Director directed to
accord necessary approval after verification of
records within two weeks. (Paras 13, 15, 17)

Writ Petition Allowed.

CASE LAW DISCUSSED-

## Text

3 All. C/M, Handia Post Graduate College, Prayagraj Vs. State of U.P. & Anr.
565
requirements of rule of law, neatly spelled
out in the case of John Wilkes [(1984) 3 All
ER 935] more than two centuries back and
quoted with approval by this Court almost a
quarter century earlier in Jaisinghani case
[(1967) 2 SCR 703, 718-19 : AIR 1967 SC
1427 : (1967) 65 ITR 34] . We have
considered it necessary to re-emphasize this
aspect and reiterate what has been said so
often by this Court only because we find
that some persons entrusted with the task of
governance appear to be unaware of the
fact that the exercise of discretion they
have must be governed by rule, not by
humour, whim, caprice or fancy or personal
predilections. It also disturbs us to find that
the Legal Remembrancer's Department of
the State of U.P. which has the duty to
correctly advise the State Government in
such matters, overlooked the obvious and
failed to discharge its bounden duty of
correctly advising the State Government in
matters of law. We would like to believe
that the impugned circular was issued for
want of proper legal advice in this behalf
instead of any ulterior motive suggested by
the petitioners/appellants."

44. Shrilekha Vidyarthi was a case
that had emerged out of very different and
unusual facts. By a circular letter dated
06.02.1990
issued
by
the
Legal
Remembrancer to the Government of Uttar
Pradesh, the Government terminated, by a
general order, the appointments of all
Government Counsel (Civil/ Criminal and
Revenue) in all the districts of the State
w.e.f. 28th February, 1990 and directed the
preparation of fresh panels of names for
appointment in place of the incumbents.
This was done irrespective of the fact if the
incumbents had their term left to serve.
There was no individual evaluation of
cases. Apparently, the decision impugned in
Shrilekha Vidyarthi came in the exercise
of sudden and arbitrary exercise of power
to determine the tenure of all State Counsel
working in the districts by one stroke of
pen, as it was described. The observations,
to which Mr. Khare has drawn our
attention, came in the background of that
extraordinary
situation
of
abuse
of
authority. Here, that is not remotely the
case, as noticed much in detail. The
appointment of the petitioners was, to begin
with, an arrangement for such time that
regular appointments were made to the
posts of Executive Officers of the Nagar
Panchayat. The appointments were limited
to a year or until regular arrangements were
made. If the Government have taken a
decision upon regular selections being
made not to continue with the appointments
on deputation, which, in any case, would
require an extension after every year, the
same cannot be said to be in the teeth of the
principle eschewing arbitrariness, as laid
down
in
Shrilekha
Vidyarthi.
The
submission, therefore, on that score is
rejected.

45. In the result, this Court does not
find any force in the writ petitions, both of
which fail and are dismissed.

46. There shall be no order as to costs.
----------
(2024) 3 ILRA 565
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 11461 of 2019

C/M,
Handia
Post
Graduate
College,
Prayagraj ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
566 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Satyendra Nath Srivastava, Sri K.R.
Singh

Counsel for the Respondents:
C.S.C.

U.P. Higher Education - Appointment to
Class III & IV posts - Ban imposed by G.O.
dated 15.03.2012 - Lifting vide G.O. dated
11.07.2013 - Scope.
Once ban stood lifted on 11.07.2013, no
restriction
remained
operative
on
filling
vacancies arising thereafter - Director's stand
that ban continued for vacancies occurring after
11.07.2013 is misconceived - Lifting of ban is
absolute, without any rider. (Paras 8-11, 14)

Appointment - Approval by Director of
Higher Education - Refusal on ground of ban
- Validity.Committee of Management was
permitted on 07.01.2016 to proceed with
selection for two posts of Junior Clerk and one
post of Lab Assistant - Despite such conscious
permission, Director disapproved selection of
one Junior Clerk and Lab Assistant citing ban -
Held, order unsustainable in law. (Paras 6, 8,
13, 15)

Ban on recruitment - Nature.
Ban orders are temporary executive measures,
not absolute or perpetual - Once lifted, they
cannot
override
statutory
rules
governing
recruitment - To construe otherwise would
permit executive fiat to supersede statutory
scheme. (Para 14)

Held :Order dated 05.11.2018 insofar as it
disapproves appointments of Arvind Kumar
Singh (Junior Clerk) and Vineet Kumar Yadav
(Lab Assistant) quashed - Director directed to
accord necessary approval after verification of
records within two weeks. (Paras 13, 15, 17)

Writ Petition Allowed.

CASE LAW DISCUSSED-

1. Committee of Management, Mahatma Gandhi
Shanti Smarak Degree College, Ghazipur Vs St.
of U.P. & ors. (Writ - A No. 26271 of 2018,
decided on 09.01.2019)

2. Vipin Vs St. of U.P. & ors., 2013 (7) ADJ 274

3. St. of U.P. Vs Committee of Management,
Mahatma Gandhi Shanti Smarak Degree College
(Special Appeal No. 198 of 2020 and connected
appeals) - dismissed.

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

1. Heard Sri K.R. Singh, learned
counsel for the petitioner and learned
Additional Chief Standing Counsel for the
State respondents.

2. By means of this petition,
petitioner has questioned the order passed
by the Director of Higher Education,
Prayagraj dated 5th November, 2018,
whereby, against one post of Junior Clerk,
the selection of Krishna Yadav has been
approved, whereas the selection of Arvind
Kumar Singh on the another post of Junior
Clerk and Sri Vineet Kumar Yadav on the
post of Lab Assistant has been disapproved.

3. It is submitted by learned counsel
for the petitioner that the reasons assigned
in the order is unsustainable as the
particular ban imposed in the year 2012 on
the appointments against class III and class
IV positions of such institutions came to be
lifted on 11th July, 2013.

4. It is submitted that merely because
the ban has come to be lifted on 11th July,
2013, does not mean that the post which
had fallen vacant after 11th July, 2013, the
managements were denuded of their power
to make selections and appointments.

5. In support of his argument learned
counsel for the petitioner has relied upon
the judgment of a coordinate Bench of this
Court in the case of Committee of
Management
of
Mahatma
Gandhi
3 All. C/M, Handia Post Graduate College, Prayagraj Vs. State of U.P. & Anr.
567
Shanti
Smarak
Degree
College,
Ghazipur and another v. State of U.P.
and others (Writ ? A No.- 26271 of 2018)
decided on 9th January, 2019. He submits
that both the Government orders dated 11th
July, 2013 and 15th March, 2012 were
taken into consideration and the Court
ultimately came to conclude that such
approach of the authorities in taking as if
there was still a ban in respect of the
vacancy falling after 11th July, 2013 was
incorrect. The Court in that case has set
aside the order and Director was directed to
pass order afresh in the light of the
observations made in the judgment.

6. He further submits that it is after
the lifting of the ban on 11th July, 2013 a
conscious decision was taken by the
authority in granting permission to the
Committee of Management on 7th January,
2016 to proceed ahead with the selection of
candidates upon the two posts of Junior
Clerk and one post of Lab Assistant and,
therefore, it cannot be said that the
Committee of Management was not having
the power or authority to make selection
and appointment.

7. Learned Additional Chief Standing
Counsel though sought to argue in support
of the decision impugned in this case but
could not dispute that a conscious decision
had been taken to accord permission to fill
up vacancy. He submits that in order to
clear confusion on facts Director may be
directed to reconsider the matter in the light
of the judgment passed by this Court.

8. Having heard learned counsel for
the respective parties and having perused
the record, what I find is that the
permission to make selection upon the post
in question (two posts of Junior Clerk and
one post of Lab Assistant) was consciously
taken
by
Joint
Director
of
Higher
Education for Director of Higher Education
on 7th January, 2016 much after the ban
was lifted. The authority was fully
conscious about one post of Junior Clerk
and one post of Lab Assistant that had
fallen vacant after the ban got lifted,
nonetheless the Director proceeded to
disapprove the selection of one post of
Junior Clerk and one post of Lab Assistant
on the ground of ban.

9. I have gone through the judgment
of a coordinate Bench of this Court and I
find that in paragraph 5 of the judgment
this very legal plea specifically taken by
learned Standing Counsel was considered.
Paragraph 5 of the judgment is reproduced
hereunder:

"5. Learned Standing Counsel
has obtain instructions, according to which
the State Government vide Government
Order dated 11.7.2013 has lifted the ban
only in respect of posts which had fallen
vacant till 11.7.2013, and that the vacancy,
in the present case, since has arisen after
11.7.2013, therefore, ban imposed earlier
vide order dated 15.3.2012 would continue
to remain invoked."

10. Now after referring to both the
Government orders in paragraph 6 & 7 of
the judgment, learned Judge arrived at ratio
in paragraph 9 that this view of lifting ban
and make 11th July, 2013 as a cut off date,
not to permit the selection and appointment
upon the vacancy fallen thereafter was
absolutely misplaced one.

11. It is held that the said Government
order was general in nature and its
applicability upon the institutions had stood
lifted with the Government order dated
11th July, 2013. The Court concluded that
568 INDIAN LAW REPORTS ALLAHABAD SERIES
lifting of ban was absolute ban and there
was no rider whatsoever to draw an
inference that the Government decided not
to permit filling up the vacancies that were
to fall vacant after 11th July, 2013.
Paragraph 9 of the judgment is reproduced
hereunder:

"9.
There
is
absolutely
no
justification for any such distinction to be
drawn based upon the date specified i.e.
11.7.2013.
Such
a
categorization/
classification can not be construed as a
reasonable classification inasmuch as it
would have no intelligible differentia or
object which is sought to be achieved. The
same
Government
Order
dated
15.3.2012was pressed as being the ground
for denial of permission for filling up
vacancies in Intermediate institution also.
The Government Order on 15.3.2012, was
also followed by subsequent Government
Order dated 23.5.2013. After taking note of
both the Government Orders, this Court in
Vipin Vs. State of U.P. and others, 2013 (7)
ADJ 274, has been pleased to hold that ban
would not be available for the purposes of
denying institution to fill up the post itself.
No specific provision has otherwise been
shown to the Court under the applicable
statutory scheme which could have been
invoked for the purposes of issuance of
Government Order dated 15.3.2012. The
said Government Order, otherwise, is
general in nature and its applicability upon
the institutions of higher leaving stands
lifted under the Government Order dated
11.7.2013. In that view of the matter, the
order passed by the Director of Education
dated 4.9.2018 cannot be sustained and is
accordingly quashed."

12. Again, I further find that against
the judgment of the coordinate Bench of
this Court cited above, the State of Uttar
Pradesh unsuccessfully preferred a appeal
being Special Appeal No.- 198 of 2020 and
other connected special appeals, in which
Division Bench also considered all these
aspects of the matter and finally affirmed
the decision taken by learned Single Judge.
Vide paragraphs 12, 13 and 14 of the
judgment of special appeal, the Court held
thus:

"12. It is otherwise an admitted
fact that no ban on the appointment of
teachers was imposed. If that is so then
how an Institution can run without Class III
and Class IV staff is another issue to be
debated but we are deliberately not
touching this issue as the order dated
15.03.2012 is not under Section 66A of the
Act of 1973.

13.
Taking
aforesaid
into
consideration,
we
supply
additional
reasons to cause interference the order
dated 04.09.2018.

14. In view of above, we don't
find any reason to cause interference the
judgment
dated
09.01.2019
and
accordingly direction given in the operative
para of the judgment would be carried by
the respondents within a month if it has not
been carried till date."

13. In view of the above legal
proposition, I do not find any justification
to sustain the order dated 5th November,
2018 insofar as it denies approval to the
selection of one Arvind Kumar Singh and
Vineet Kumar Yadav on the post of Junior
Clerk and Lab Assistant respectively.

14. Besides the above, a ban on
recruitment process is never absolute and
has certain exception which order putting a
ban itself may provide. Every ban is
imposed for a certain period taking into
consideration
certain
facts
and
3 All. Arvind Singh Vs. State of U.P. & Ors.
569
circumstances. It cannot be for all time to
come when recruitment process is governed
by statutory rules. An executive order to
impose ban is also to be subject to certain
conditions and for a certain period
otherwise, the Act and statutory rules
would get superseded by executive acts/
fiats at its whims. Once such a ban is lifted,
it should, therefore, be taken to have been
lifted absolutely.

15. The order dated 5th November,
2018, accordingly, to that extent is hereby
quashed.

16. The writ petition is allowed.

17. The Director of Higher Education,
U.P., Prayagraj is directed to accord
necessary approval after verification of the
records in the selection procedure place
before him and if otherwise there is no
legal impediment, within a period of two
weeks from the date of production of
certified copy of this order.
----------
(2024) 3 ILRA 569
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2023
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 11855 of 2023

Arvind Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Hridaya Narain Singh, Sri Ashok Khare
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Ms. Manisha Chaturvedi, Smt.
Chandra Kala Chaturvedi
U.P.
Secondary
Education
Services
Selection Board Act, 1982 - Section 33G(1) & (8) - Regularisation - Appointment
against short-term vacancy - Payment of salary
under Court's interim order - Effect.
Regional Selection Committee rejected claim for
regularisation holding petitioner ineligible as he
was drawing salary only under Court's order -
Held, misconceived - Section 33-G(8) to be read
conjunctively:
both
conditions
i.e.
invalid
appointment and salary only under Court's order
must exist - If appointment otherwise validly
made
under
Removal
of
Difficulties
Order/Section
18,
claim
for
regularisation
cannot be denied merely because salary was
released pursuant to Court's interim order.
(Paras 8, 16, 19)
Appointment - Validity - Evidence of short-term
vacancy.

Promotion of incumbent (Saryu Yadav) as Head
Master in 1996 created short-term vacancy -
Petitioner appointed in 1997 with due procedure
- District Inspector of Schools later confirmed
his working and ordered salary - Continuous
discharge
of
duties
and
assignment
of
examination duties from 1999 onwards establish
valid appointment - Plea of management
denying vacancy unsustainable. (Paras 2-4, 9,
14-15)
Regularisation - Equitable considerations.

Service of more than two decades cannot be
nullified only on ground of technicalities -
Supreme Court in Radhey Shyam Yadav Vs St.
of U.P., AIR 2024 SC 260 held beneficiaries of
management's irregularities cannot be penalised
absent their complicity - Same principle applied.
(Paras 20-21)

Held : Orders dated 25.04.2023 (Joint Director
of
Education)
and
14.07.2023
(DIOS,
Azamgarh) quashed - Matter remitted for fresh
decision in light of Court's observations - To be
completed within 30 days. (Paras 22-23)

Writ Petition Allowed.

CASE LAW DISCUSSED-

1. Pramod Kumar Vs St. of U.P. & ors. (Writ - A
No. 1981 of 2021)