# C/M, Samaj Kalyan Parishad,Ghaziabad & Anr v. The State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-20
- **Case number:** Writ-A No. 218 of 2020
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-samaj-kalyan-parishad-ghaziabad-anr-v-the-state-of-u-p-ors-45636
- **Pages:** 4

## Headnote

Act,
2019
-
provides
for
establishment
of
an
Education Service Selection Commission
in the State for selection of the teachers
and non teaching employees - steps are
being taken by the State government for
enforcement the Act, 2019 and UP
recognized Basic Schools (Junior High
2 All. C/M, Samaj Kalyan Parishad, Ghaziabad & Anr. Vs. The State of U.P. & Ors.
1163
Schools) (Recruitment and Conditions of
Service of Teachers) (7th Amendment)
Rules, 2019 which prescribes selection of
teaching and non- teaching staffs
B. Institution - Section 2(f) - U.P.
Education Service Selection Commission
Act, 2019 - includes a school of Uttar
Pradesh Basic Education Board, aided
Junior High School and also include an
aided
attached
Primary
School,
recognized by the Board established
under the Uttar Pradesh Basic Education
Act, 1972
Writ Petition Disposed of.

## Text

1162 INDIAN LAW REPORTS ALLAHABAD SERIES
by
Mr.
Dharampal
making
certain
allegations against Chaudhary Bhajanlal.
The matter which were issued in Full
Bench case of Ram Lal Yadav (supra)
was not an issue before the Apex Court in
Chaudhary Bhajanlal's case (supra)
which was said in para 84 of the judgment
at page 625:

"84. The nagging question that
comes up for examination more often than
not is under what circumstances and in
what categories of cases, a criminal
proceeding can be quashed either in
exercise of the extraordinary powers of the
High Court under Article 226 of the
Constitution of India or in the exercise of
inherent powers of the High Court under
section 482 of the Code....."

13. In other words, when certain
question is neither raised nor argued that
discussion by the Court even after
pondering over the issue in depth would
not
be
a
binding
precedent.
The
observations of the Apex Court in the case
of State of Haryana Vs. Chaudhary
Bhajanlal
(supra)
have
been
misinterpreted. Thus, also the case laws of
the Apex Court relied upon by the learned
counsel for the applicant cannot be of any
help to the applicant as the Apex Court did
not categorically say anywhere that both
the options were open in both types of
cases, i.e., where investigation is pending
and where the proceedings are pending in
Criminal Courts.

14. Thus, the submission advanced
by learned counsel for the applicant
regarding the preliminary objection raised
by
learned
AGA
regarding
the
maintainability of the present 482 Cr.P.C.
Application for quashing of the FIR is not
at all acceptable in view of the judgment
of the Full Bench decision of this Court in
the case of Ram Lal Yadav (supra) which
has been followed by a Division Bench in
the case of A. S. Bindra Vs. Senior
Superintendent of Police, Dehradun and
others, reported in 1998 Criminal Law
Journal 3845 in which again an identical
issue was raised and decided by following
the judgment in the case of Ram Lal
Yadav's case (supra).

15. Thus, the present 482 Cr.P.C.
Application
is
not
maintainable,
accordingly, the same is dismissed at this
ground alone.
----------
(2020)02ILR A1162

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 218 of 2020

C/M, Samaj Kalyan Parishad,Ghaziabad &
Anr. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sunil Kumar Gupta

Counsel for the Respondents:
C.S.C.

A. Appointment - U.P. Education Service
Selection
Commission
Act,
2019
-
provides
for
establishment
of
an
Education Service Selection Commission
in the State for selection of the teachers
and non teaching employees - steps are
being taken by the State government for
enforcement the Act, 2019 and UP
recognized Basic Schools (Junior High
2 All. C/M, Samaj Kalyan Parishad, Ghaziabad & Anr. Vs. The State of U.P. & Ors.
1163
Schools) (Recruitment and Conditions of
Service of Teachers) (7th Amendment)
Rules, 2019 which prescribes selection of
teaching and non- teaching staffs
B. Institution - Section 2(f) - U.P.
Education Service Selection Commission
Act, 2019 - includes a school of Uttar
Pradesh Basic Education Board, aided
Junior High School and also include an
aided
attached
Primary
School,
recognized by the Board established
under the Uttar Pradesh Basic Education
Act, 1972
Writ Petition Disposed of.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard learned counsel for the
petitioner and the learned standing counsel for
the respondents.

2. This writ petition has been filed
praying for the following relief:-

"Issue
a
writ
order
or
direction
in
nature
of
certiorari
quashing the impugned order dated 168-2019 as well as 31-10-2019 passed
by respondents (Annexure no. 6 and 8
to this writ petition) issued by the
respondents;

issue a writ or direction in
nature
of
Mandamus
commanding/directing the respondents
to permit the petitioners to fill up the
vacancy of 05 Assistant teachers in
Primary
label
to
the
petitioners
institution
forthwith
under
the
command of this Hon'ble Court.

Issue a writ order of direction
in
nature
of
Mandamus
commanding/directing the respondents
to approve the duly selected Assistant
Teachers after being giving permission
for appointment and Accord admissible
payment of salary to the selected and
appointed Assistant Teachers in the
petitioners institute in accordance with
law."

3. Learned counsel for the petitioner
submits that the impugned orders dated
16.08.2019 and 31.10.2019 are not applicable
to the petitioner inasmuch as the applicant is
claiming appointment in Primary Section of
the Institution.

4. Learned standing counsel supports the
impugned order.

5. I have carefully considered the
submissions of learned counsels for the parties.

6. In paragraphs 3 and 4 of the writ
petition the petitioner has stated that it is a
Junior High School recognised by the U.P.
Basic Education Board. By the impugned
order dated 16.08.2019, passed by the
District Basic Education, Ghaziabad, it
was merely informed to the petitioner that
a new arrangement regarding selection of
Assistant Teacher in Basic Schools is
being made and, therefore, it is not
possible to grant the permission for
appointment on the vacant posts. By the
impugned order dated 31.10.2019. The
State Government intimated the Director
of Education (Basic), Uttar Pradesh,
Lucknow, that some amendment for fixing
standard of recruitment of Assistant
Teachers
and
employees
is
under
consideration and, therefore, the process of
recruitment may not be started. Both these
orders
have
now
become
irrelevant
inasmuch as the State legislature has
legislated the Uttar Pradesh Education
Service Selection Commission Act, 2019
(U.P. Act No.22 of 2019) which has been
notified and published in the Gazette on
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
27.12.2019. The aforesaid U.P. Act
No.22
of
2019
provides
for
establishment of an Education Service
Selection Commission in the State for
selection of the teachers and non
teaching
employees
(i)
of
non
Government aided colleges affiliated and
associated by an University governed by
the Uttar Pradesh State University Act,
1973,
(ii)
non
Government
aided
intermediate colleges, higher secondary
schools, high schools and attached primary
schools, basic and junior high schools
recognised by the Uttar Pradesh Board of
Secondary
Education,
Prayagraj,
and
established
under
the
Intermediate
Education Act, 1921, and the Uttar
Pradesh
Basic
Education
Board
established under the Uttar Pradesh Basic
Education Act, 1972, respectively. Since
the aforesaid Act 2019 has been enacted,
therefore, the challenge to the impugned
orders
by
the
petitioner
is
wholly
misconceived.

7. The Uttar Pradesh Recognised Basic
Schools (Junior High Schools) (Recruitment
and Conditions of Service of Teachers), Rules
1978 has also been exhaustively amended by
the Uttar Pradesh recognished Basic Schools
(Junior High Schools) (Recruitment and
Conditions of Service of Teachers) (7th
Amendment) Rules 2019.

8. In view of the aforesaid amendment
made in the Rules, 1978, the State Government
has also nominated "Pariksha Niyamak
Pradhikari, Uttar Pradesh, Prayagraj" for
conducting examination for selection and
accordingly the prohibition on appointment of
Assistant Teachers in non government aided
Junior High Schools have been cancelled. These
facts
are
evident
from
letter
no.
1755@vMlB&3&2019, dated 01.01.2020, issued
by State Government to the Director of
Education (Basic) Uttar Pradesh, Lucknow, and
the Secretary Examination Regulatory Authority,
Uttar Pradesh, Prayagraj. A copy of this letter has
been produced before me by Sri R.P. Dubey,
learned Additional Chief Standing Counsel.

9. It is stated by the learned Additional
Chief Standing Counsel that all necessary
steps are being taken by the State
Government for starting selection of Assistant
Teachers and employees as per provisions of
the Act, 2019 and amended Rules, 1978 and
the enforcement of the Act 2019 shall be
notified very shortly.

10. I have perused the provisions
of Section 13 of the Act, 2019 which
provides that every appointment of
teaching and non teaching employee in
an institution shall be made by the
appointing authority only on the
recommendation of the Commission
and any appointment, excluding the
cases of dying-in-harness, made in
contravention of the provisions of
the
Act
shall
be
void.
The
appointment
under
dying-in-harness
shall be done as prescribed.

11. The word "institution" has
been defined in Section 2(f) of the
Act, 2019 which includes a school of
Uttar Pradesh Basic Education Board,
aided Junior High School and also
includes an aided attached Primary
School,
recognised
by
the
Board
established under the Uttar Pradesh
Basic Education Act, 1972. Section
2(f) is reproduced below:-

(f) "institution" means any of the
following, institutions other than an
institution established and administered by
a minority referred to in clause (1) of
Article
30
of
the
Constitution:-
2 All. Tilak Singh & Ors. Vs. State of U.P. & Ors.
1165

(1) an affiliated or associated
non-government aided college to which
the privilege of affiliation has been
granted by a University established under
the Uttar Pradesh State Universities Act,
1973;

(2) a non-government aided
intermediate
College
or
a
Higher
Secondary School or a High School and
an attached primary school recognized by
the
Board
established
under
the
Intermediate Education Act, 1921;

(3) a school of the Uttar Pradesh
Basic Education Board or an aided junior
high school and includes an aided
attached primary school recognized by the
Board
established
under
the
Uttar
Pradesh Basic Education Act, 1972.

12. In view of the facts and
circumstances
and
the
legislative
amendments and enactment of the Act
2019, no direction can be issued to the
respondents to permit the petitioner to
fill
up
vacancy of
five
Assistant
Teachers in the institution in question
and to approve the appointment of such
Assistant Teachers as may be selected
by the petitioner.

13. However, looking into the
necessity of selection and appointment
of teaching and non teaching employees
in non Government aided institutions
under the provisions of the Act, 2019
and the relevant Rules, it appears
necessary that the State Government
should expeditiously take steps for
enforcement of the Act, 2019 to make
functional the Commission for selection
and recommendation for appointment
of
teaching
and
non
teaching
Employees. This Court hopes and trusts
that
the
State
Government
shall
complete the entire exercise and issue
necessary notification for enforcement
of the Act, 2019 very expeditiously
preferably within 15 days, if not issued
so far, and shall also make efforts for
appointments
as
expeditiously
as
possible so that institutions in need may
get teaching and non teaching staff.

14. With the aforesaid observations,
the writ petition is disposed of.

15. A copy of this order shall be
given to the learned Chief Standing
Counsel free of cost, for communication to
the State Government for necessary
compliance.
----------
(2020)02ILR A1165

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

WRIT-A No. 468 of 2020

Tilak Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare, Sri
Rohit Upadhyay, Sri Shantanu Khare

Counsel for the Respondents:
C.S.C., Sri Gagan Mehta

A. Education - U.P. State Universities
Act,1973: Section 67; First Statute of the
Agra University: Statute 13.03 - The
Court refused to interfere with the public
notices calling upon the petitioners to
submit information as required in the
questionnaire,
giving
effect
to
the
exercise undertaken by the University to