# C/M, Hindu Model Junior High School v. Rakesh Kumar Gupta & Anr - **Citation:** (2016) 3 ILRA 165 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2015-12-17 - **Case number:** Civil Misc. (Review) Application No. 321390 of 2014 - **Bench:** Arun Tandon, Mrs. Sunita Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-hindu-model-junior-high-school-v-rakesh-kumar-gupta-anr-43426 - **Pages:** 7 ## Headnote Education Law- Recognised Basic Schools-Clerk/Ministerial Staff-Appointment prior to and after 1984 Rules Payment of salary from State exchequer- that payment of salary from the State exchequer can be directed only when the employee establishes that his appointment was made strictly in accordance with the statutory rules applicable at the time of appointment and not de-hors the same. Appointment prior to and after 1984 Rules- hat where appointment to the post of clerk prior to commencement of the 1984 Rules was governed by the Basic Education Code, non-compliance of mandatory requirements such as advertisement of vacancy, constitution of selection committee with nominee of the Basic Shiksha Adhikari, approval of the Basic Shiksha Adhikari and possession of prescribed typing qualification renders the appointment illegal. Rules 5, 6, 14, 15, 21- that Rule 21 of the 1984 Rules requiring prior approval before termination applies only where the initial appointment itself was validly made in accordance with law; an illegal appointment does not attract the protection of Rule 21. Grant-in-aid.- that where services were terminated in 1985 and the employee remained dormant for more than a decade, having also allowed dismissal of his civil suit to attain finality, a writ petition seeking reinstatement and salary after the institution is brought on grant-in-aid suffers from gross delay and is not maintainable. Civil suit dismissed- that once a civil suit seeking similar relief has been dismissed and permitted to attain finality, writ jurisdiction cannot be invoked for the same cause of action. Effect.- that appointment made after enforcement of the 1984 Rules without compliance of mandatory procedure prescribed under Rules 5, 6, 14 and 15-including advertisement, constitution of selection committee, approval of the District Basic Education Officer and proof of requisite typing qualification-is void and confers no right to salary from the State exchequer. 166 INDIAN LAW REPORTS ALLAHABAD SERIES Review jurisdiction- that review jurisdiction though limited, can be exercised where statutory provisions governing appointments and public expenditure have gone unnoticed and a serious question of illegal payment from public funds is involved. Scope- that neither of the claimants having established valid appointment in accordance with statutory provisions, no mandamus for payment of salary could be issued. Review application partly allowed; judgment dated 28.5.2014 substituted; appeal of Committee of Management allowed; appeal of rival claimant dismissed. List of cases cited:- ## Text 3 All. C/M, Hindu Model Junior High School Vs Rakesh Kumar Gupta & Anr 165 --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.12.2015 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE MRS. SUNITA AGARWAL, J. Special Appeal No. - 1622 of 2013 C/M, Hindu Model Junior High School ...Appellant Versus Rakesh Kumar Gupta & Anr ...Respondents Counsel for the Appellant: V.P. Rai Counsel for the Respondents: Shyam Krishna Gupta, Raj Kumar Khanna Education Law- Recognised Basic Schools-Clerk/Ministerial Staff-Appointment prior to and after 1984 Rules Payment of salary from State exchequer- that payment of salary from the State exchequer can be directed only when the employee establishes that his appointment was made strictly in accordance with the statutory rules applicable at the time of appointment and not de-hors the same. Appointment prior to and after 1984 Rules- hat where appointment to the post of clerk prior to commencement of the 1984 Rules was governed by the Basic Education Code, non-compliance of mandatory requirements such as advertisement of vacancy, constitution of selection committee with nominee of the Basic Shiksha Adhikari, approval of the Basic Shiksha Adhikari and possession of prescribed typing qualification renders the appointment illegal. Rules 5, 6, 14, 15, 21- that Rule 21 of the 1984 Rules requiring prior approval before termination applies only where the initial appointment itself was validly made in accordance with law; an illegal appointment does not attract the protection of Rule 21. Grant-in-aid.- that where services were terminated in 1985 and the employee remained dormant for more than a decade, having also allowed dismissal of his civil suit to attain finality, a writ petition seeking reinstatement and salary after the institution is brought on grant-in-aid suffers from gross delay and is not maintainable. Civil suit dismissed- that once a civil suit seeking similar relief has been dismissed and permitted to attain finality, writ jurisdiction cannot be invoked for the same cause of action. Effect.- that appointment made after enforcement of the 1984 Rules without compliance of mandatory procedure prescribed under Rules 5, 6, 14 and 15-including advertisement, constitution of selection committee, approval of the District Basic Education Officer and proof of requisite typing qualification-is void and confers no right to salary from the State exchequer. 166 INDIAN LAW REPORTS ALLAHABAD SERIES Review jurisdiction- that review jurisdiction though limited, can be exercised where statutory provisions governing appointments and public expenditure have gone unnoticed and a serious question of illegal payment from public funds is involved. Scope- that neither of the claimants having established valid appointment in accordance with statutory provisions, no mandamus for payment of salary could be issued. Review application partly allowed; judgment dated 28.5.2014 substituted; appeal of Committee of Management allowed; appeal of rival claimant dismissed. List of cases cited:- 1. Regional Manager, Region II, State Bank of India, Meerut and others vs. Pradeep Goel, 1992 All CJ 274 (Delivered by Hon'ble Arun Tandon, J. & Hon'ble Mrs. Sunita Agarwal, J.) Civil Misc. (Review) Application No. 321390 of 2014 Civil Misc. (Review) Application No. 321381 of 2014 1. Supplementary affidavit filed today be taken on record. 2. Heard learned counsel for the parties. 3. These two review application have been filed on behalf of Rakesh Kumar Gupta seeking review of the common judgment and order dated 28.5.2014 of the Division Bench passed in Special Appeal No. 1622 of 2013 connected with Special Appeal (Defective) No. 1282 of 2013. 4. Before referring to the grounds which have been raised in support of the review application, it would be appropriate for us to narrate the basic facts relevant for deciding the applications. 5. Hindu Model Junior High School (hereinafter referred to as 'the school') is a recognised Basic School. The post of clerk is said to have become available in the said institution against which Rakesh Kumar Gupta claimed to have been selected and appointed on 29th August, 1983. 6. It is his case that his appointment was put to an end by the management of the institution without any prior approval of the Basic Siksha Adhikari by order dated 1.11.1985. It is further his case that he approached the Basic Siksha Adhikari against the illegal termination of his services who passed an order dated 19th November, 1985 holding therein that since prior approval from the Basic Siksha Adhikari had not been obtained in accordance with the provisions of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) 3 All. C/M, Hindu Model Junior High School Vs Rakesh Kumar Gupta & Anr 167 Rules, 1984 (hereinafter referred to as the '1984 Rules'), the termination order was hit by Rule 21 of the 1984 Rules, therefore, legally not sustainable. 7. There is nothing on record to establish as to what attempts were made thereafter by Rakesh Kumar Gupta to resume his duties in the institution between the period 1985 to 1999. 8. What we find from the record is that he filed an Original Suit No. 137 of 1988 before the Civil Judge, Moradabad as a pauper. The application seeking permission to maintain the suit as a pauper was rejected by the Competent Court and accordingly for want of Court fees, the suit was also dismissed. This order of the Competent Civil Court had been permitted to become final by Rakesh Kumar Gupta. 9. The institution which was earlier unaided was brought in grant-in-aid list of the State Government on 1st December, 1998 and it is at this stage the petitioner Rakesh Kumar Gupta grew wiser. After 14 years of the termination of his services, he approached the Basic Siksha Adhikari alleging therein that his termination was bad and he must be reinstated in services with a direction to the management to pay his salary. The Basic Siksha Adhikari passed an order on 19th May, 1999 whereby the management of the institution was directed to permit Rakesh 3 Kumar Gupta to join as clerk and to pay his salary. Since this order of the Basic Siksha Adhikari was not complied with, Rakesh Kumar Gupta filed Writ Petition No. 35802 of 1999. 10. In between what has happened is that one Uma Shankar Sharma set up a claim that he has been appointed against the available vacancy of clerk on 1.1.1987 in the same institution and that he has been continuously working as such since than. 11. It was further pleaded that when the institution was brought in grant-in-aid list in 1998, it was obligatory upon the management of the institution to have included the name of Uma Shankar Sharma in the managerial list so that he could draw salary from the State Exchequer. Since the management was not acting in accordance with law according to Uma Shankar Sharma, he filed Writ Petition No. 19819 of 1999. 12. This writ petition was disposed of requiring the Basic Siksha Adhikari to consider the grievances of Uma Shankar Sharma. The Basic Siksha Adhikari rejected the representation of Uma Shankar Sharma by the order dated 12.8.1999. As a consequence thereto the management of the institution terminated the services of Uma Shankar Sharma by order dated 18.8.1999. Not being satisfied, Uma Shankar Sharma filed another Writ Petition No. 35539 of 1999. 13. The writ petition filed by Rakesh Kumar Gupta and that filed by Uma Shankar Sharma were clubbed together and decided by a common judgment by Single Judge dated 16th September, 2013. The Hon'ble Single Judge held that Rakesh Kumar Gupta was entitled to pay the salary and that the termination of services of Uma Shankar Sharma did 168 INDIAN LAW REPORTS ALLAHABAD SERIES not warrant any interference. This gave rise to two Special Appeals under Chapter VIII, Rule 5 of the Allahabad High Court Rules. 14. The Special Appeal No. 1622 of 2013 was filed by the Committee of Management of the institution and Special Appeal (Defective) No. 1282 of 2013 was filed by Uma Shankar Sharma. 15. A Division Bench of this Court vide order dated 28.5.2014 allowed the appeal filed by the Committee of Management as well as the appeal filed by Uma Shankar Sharma and it has been held that Uma Shankar Sharma was entitled for payment of salary. Rakesh Kumar Gupta who appeared after 14 years to claim appointment on the ground that his services were wrongly terminated and whose civil suit had been dismissed earlier was not entitled to any such salary from the State Exchequer. 16. Not being satisfied with the judgment review applications have been filed by Rakesh Kumar Gupta. Counsel for Rakesh Kumar Gupta submitted before us that since the termination of the services of Rakesh Kumar Gupta was in violation of Rule 21 of the 1984 Rules and as the termination order has been set aside by the Basic Siksha Adhikari as early as on 19.11.1985, the direction issued by the Basic Shiksha Adhikari for reinstatement and for payment of salary of Rakesh Kumar Gupta dated 19.5.1999 did not warrant any interference from this Court. 17. He further submitted that the Division Bench of this Court was not justified in returning a finding that there was no requirement of any prior approval from the District Basic Education Officer, Moradabad for the reason that his appointment was not made under the Rule 1984 nor he was confirmed on the post of clerk. 18. So far as Uma Shankar Sharma is concerned, it is stated that he claims to be appointed in 1997 against the same vacancy which became available due to termination of the 5 services of Rakesh Kumar Gupta and that there is no material on record to demonstrate that Uma Shankar Sharma was appointed after following the procedure prescribed under Rules 1984 or he was working on the date the institution was taken on aid so as to include his name in the list of employees entitled to salary from State exchequer. 19. Counsel for the Committee of Management and Uma Shankar Sharma supported the judgment dated 28.5.2014 and it is their case that no case for exercise of review jurisdiction is made out. 20. We are aware that the scope for interference under review jurisdiction is very limited and the Court is reluctant to enter into the issues which have been adjudicated by the earlier Division Bench, but this Court in the facts of the case finds that the Statutory Rules which regulate appointment in a recognised Junior High School both prior to the commencement of 1984 Rules and subsequent thereto have gone unnoticed. Serious question of payment of salary from the public exchequer is involved. The Court has to see that such salary under orders of the Court is released only when a person is able to establish 3 All. C/M, Hindu Model Junior High School Vs Rakesh Kumar Gupta & Anr 169 before the Court that his appointment has been made in accordance with the Statutory provisions applicable and not de-hors the same. 21. It is in this background that we proceed to deal with the nature of appointment of Rakesh Kumar Gupta and Uma Shankar Sharma as per the material on record. 22. So far as Rakesh Kumar Gupta is concerned, we may record that he claims appointment on 29.8.1983 that is prior to the commencement of 1984 Rules. From the Supplementary Affidavit filed by Rakesh Kumar Gupta, himself it is now an admitted position that prior to the Rules of 1984, the mode and manner of appointment of a clerk in recognized institution including Junior High School was regulated by Basic Education Code. The rules as brought on record before us disclose that for appointment on the post of Clerk and/or Group 'D' employee, vacancy is required to be advertised in two news papers, one of which must have adequate circulation in the area where the institution is situate. Information of the vacancy has to be forwarded to the Basic Shiksha Adhikari (Reference Rule 22). After the advertisement, a Selection Committee is to be constituted comprising of Manager, Head Master of the institution concerned and a nominee of the Basic Shiksha Adhikari. It is only on the recommendation of such Selection Committee that the Basic Shiksha Adhikari is required to grant approval to the selection. Thereafter the management is required to issue an appointment letter in writing to the selected candidates with a copy to the Basic Shiksha Adhikari. The minimum qualifications for such appointment on the post of Clerk have also been laid down in Clause 3 which specifies that the minimum educational qualification shall be intermediate or equivalent thereto with a typing speed in Hindi of 30 words per minute. 23. We at the very outset record that there is absolutely no pleading on behalf of Rakesh Kumar Gupta which would satisfy the requirements of the said Rules including the qualification of knowledge of typing. As a matter of fact, the appointment letter issued in favour of Rakesh Kumar Gupta mentions that he was being offered appointment on the making of application. It does not refer to any selection by the committee referred to above or about the approval of the Basic Shiksha Adhikari as provided under the Education Code. Similarly, it is not known as to whether Rakesh Kumar Gupta possessed the required typing speed of 30 words/min as mandatorily required under Rule 3 referred to above. 24. Be that as it may, we find that the services of Rakesh Kumar Gupta were put to an end in the year 1985 and it is his case that this order was set aside by the Basic Siksha Adhikari in the year 1985 on the ground that prior approval had not been obtained before the termination of services of Rakesh Kumar Gupta. In our opinion application of Rules 1984 qua taking of prior approval in accordance with Rule 21 of the Rules 1984 would arise only in a case where the appointment itself has been made in accordance with the rules by adopting the procedure as was prevailing at the time of appointment. As observed that at the time of appointment of Rakesh Kumar Gupta the procedure provided under the Basic Education Code, which was prevailing at that point of time, was not followed. The appointment of Rakesh Kumar Gupta on 29.8.1983 is, therefore, held to be illegal. Resultantly there was no requirement of any prior approval before terminating the services of Rakesh Kumar Gupta. The termination order dated 1.11.1985, therefore, cannot be said to 170 INDIAN LAW REPORTS ALLAHABAD SERIES be illegal in absence of prior approval of the District Basic Education Officer as required under Rule 21 of the 1984 Rules. The Rule 21 of 1984 Rules has no application in the case of Rakesh Kumar Gupta, 25. This apart, Rakesh Kumar Gupta did not make any effort to get himself restored in the employment of the institution between 1985 till 1999. The writ petition is completely silent on this aspect. 26. On the contrary on record these are the details of Civil suit filed by Rakesh Kumar Gupta being suit no. 137 of 1988 which was admittedly dismissed sometime in the year 1988 itself. For about 11 years, subsequent to the dismissal of the suit nothing 8 was done by Rakesh Kumar Gupta and it is only when the institution was brought in grant-in-aid list of the State Government in the year 1998 that he started approaching the Basic Siksha Adhikari again. 27. A Division Bench of this Court in the case of Regional Manager, Region II, State Bank of India, Meerut and others vs. Pradeep Goel reported in 1992 All CJ 274; has held that when a civil suit is dismissed then no writ petition for similar relief can be entertained. Thus the writ petition filed by Rakesh Kumar Gupta had to be dismissed. 28. No ground for review is made out in this regard. 29. We find that aspect of the matter had completely escaped the attention of both the learned Single Judge as well as Division Bench while entertaining the writ petition and the Special Appeal filed by Rakesh Kumar Gupta. 30. So far as Uma Shankar Sharma is concerned, he was offered appointment in the year 1987 when the rules 1984 had seen the light of the day. Rule 6 of the 1984 Rules mandates that no appointment can be made in a recognized institution on Group 'C'/'D' posts except on the recommendation of the Selection Committee as contemplated by Rules 5 of the 1984 Rules. Similarly the minimum qualification prescribed under the Rules 1984 also contemplate that a candidate besides having passed intermediate examination or equivalent thereto must also have a speed of 30 words per minute in Hindi typing. The vacancy is required to be advertised, a Selection Committee is required to be constituted under Rule 14 comprising of a nominee of the District Basic Education Officer. The appointment can be offered only if the District Basic Education Officer is satisfied about the selection made by the Selection Committee [(Reference Rule 15 sub-clause (5)]. The appointment was 9 necessarily to be offered by the management by means of a letter in writing with a copy thereof to the Basic Siksha Adhikari. 31. We find that absolutely no records are available before this Court which could satisfy the compliance of the aforesaid Statutory procedure as per Rules 1984 in the case of Uma Shankar Sharma. 3 All. Suresh Prasad Vs A.D.J. & Ors. 171 32. We are, therefore, of the opinion that in the absence of a procedure prescribed under 1984 Rules having been followed, the appointment of Uma Shankar Sharma could not have been made in view of Rule 5 of the 1984 Rules. 33. We, therefore, record that both the petitioners namely Uma Shankar Sharma and Rakesh Kumar Gupta are not entitled for any mandamus from this Court in the matter of payment of salary from the State Exchequer. 34. The review application is allowed to the extent indicated above. The judgment dated 28.5.2014 stands substituted by this order. 35. Accordingly, the appeal filed by the Committee of Management is allowed and the appeal filed by Uma Shankar Sharma is dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.02.2016 BEFORE THE HON'BLE MRS. SUNITA AGARWAL, J. Writ A No. - 20396 of 2015 Suresh Prasad ...Petitioner Versus A.D.J. & Ors. ...Respondents Counsel for the Petitioner: Vineet Kumar Singh, H.N. Singh, Rama Kant Dubey Counsel for the Respondents: Siddharth Nandan U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Ss. 21(1)(a), 16(1)(b), 11, 12, 13, 15 Release of shop- in proceedings under Section 21(1)(a) of the U.P. Act No. 13 of 1972, the landlord must independently establish a bona fide and genuine need, and no presumption in his favour can be drawn merely because the tenant or his family members occupy or own another non-residential accommodation. Bona fide need- the expression "bona fide requirement" occurring in Sections 16(1)(b) and 21(1)(a) of the Act carries the same meaning, and mere desire of the landlord is not sufficient; the requirement must be real, honest, and in good faith. Landlord's son- the comparative hardship of the parties is a relevant consideration, and where the tenant's wife owns and occupies a commercial complex and runs a wholesale business therein, the balance of hardship tilts in favour of the landlord.