# C/M Shivaji Inter College Sahson, Prayagraj & Anr v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-02
- **Case number:** Writ-A No. 3395 of 2022
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-shivaji-inter-college-sahson-prayagraj-anr-v-state-of-u-p-ors-47736
- **Pages:** 6

## Headnote

A. Service Law - Appointment/Selection -
Intermediate
Education
Act,
1921
-
Regulation
101
Chapter
III
-
Where
proceedings are initiated for selection by
issuing advertisement, the selection should
normally be regulated by the then existing
rules and Government Orders and any
amendment of the rules or the Government
Order pending the selection should not
affect the validity of the selection made by
the selecting authority or the Public Service
Commission unless the amended rules or
the amended Government orders issued in
exercise of its statutory power either by
express
provision
or
by
necessary
intendment indicate that amended Rules
shall
be
applicable
to
the
pending
selections. (Para 8)

The vacancy occurred on 30.11.2014 and was
advertised on 16.11.2021 and as such selection
process was to be governed by the Rules and
GOs in existence on the date on which the
process was initiated i.e. Regulation 101
Chapter III of the Intermediate Education Act,
1921 existing on that date would govern the
field and not the GO dated 25.11.2021. (Para 8,
10)

B. Approval by the DIOS is to be accorded
after
selection
is
held
and
before
appointment.
The
Regulations
101
also
contemplate the same stage i.e. after the
selection process is over but before making
appointment to the post. Prior approval is not
required for holding the selection from the DIOS
and the selection process cannot be held to be
illegal on the score that prior approval had not
been obtained.

Therefore, in the present case, the approval to
the selection process could not have been
denied on the ground that prior permission had
not been obtained by the Committee of
Management
before
proceeding
with
the
recruitment. (Para 10)
C. The Court further finds that the order has
been passed behind the back of the
petitioners and appears to be ante dated
inasmuch as by an order of even date i.e.
23.3.2022 bearing official index No. 13370 the
petitioners were required to furnish certain
information and the petitioners also submitted
their reply on 2.4.2022 but the impugned order
dated
23.3.2022
was
passed
without
considering the reply called for. (Para 12)

Writ petition allowed. (E-4)

Precedent followed:

## Text

416 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court in Shyam Narain Shukla Vs.
state of U.P. (1988) 6 LCD 530 and this
Court held as under:-

"In view of the above decision of the
Supreme Court, it has to be held that
whenever
a
Government
servant
is
convicted of an offence, he cannot be
dismissed from service merely on the
ground of conviction but the appropriate
authority has to consider the conduct of
such employee leading to his conviction
and then to decide what punishment is to be
inflicted upon him. In the matter of
consideration of conduct as also the
quantum of punishment the employee has
not to be joined and the decision has to be
taken
by
the
appropriate
authority
independently of the employee who, as laid
down by the Supreme Court, is not to be
given an opportunity of hearing at that
stage.

 (Emphasis added)

15. Similarly another Division Bench of
this Court in Sadanand Mishra Vs. State of
U.P., 1993 LCD page 70 held that on the
conviction of an employee of a criminal
charge, the order of punishment cannot be
passed unless the conduct which has led to his
conviction is also considered. Further, it is held
that the scrutiny of conduct of an employee
leading to his conviction is to be done ex parte
and an opportunity of hearing is not to be
provided for this purpose to the employee
concerned.

16. The above view was taken by this
Court in Chandra Bhuwan Tripathi Vs.
State of U.P. & others (Civil Misc. Writ
Petition No. 45364 of 2003) decided on
8.12.2006. "

17. Now testing the impugned order
dated 28.10.2021 on the anvil of the ratio of
the aforesaid decisions, the Court finds that the
impugned orders do not conform to the 1999
Rules in as much as the Basic Shiksha
Adhikari, Maharajganj/Respondent No.3 has
not taken into consideration the entire conduct
of the petitioners, the gravity of misconduct
committed by them, the impact which the
misconduct is likely to have etc. and has
passed the order simply recording that the
petitioners were suspended vide order dated
16.04.2016 on their being convicted in Case
No.186 of 2013, under Sections 302/34,
323/34, 504, 506 IPC vide order of the
Additional Sessions Judge, Maharajganj. The
services of the petitioners are being terminated
with immediate effect on their conviction vide
order dated 02.04.2016 in compliance of the
procedure laid down in the Government Order
dated 12.10.1979 and the U.P. Government
Servants (Discipline and Appeal) Rules, 1999.

18. In the result, the writ petition is
allowed.
The
impugned
orders
dated
28.10.2021 (Annexure No.9 & 10 to the writ
petition) respectively passed by the Basic
Shiksha Adhikari, Maharajganj, Respondent
No.3 are quashed.

19. However, it shall be open to the
Respondent No.3 to pass a fresh order in
accordance with law.
----------
(2022) 10 ILRA 416
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 3395 of 2022

C/M
Shivaji
Inter
College
Sahson,
Prayagraj & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
10 All. C/M Shivaji Inter College Sahson, Prayagraj & Anr. Vs. State of U.P. & Ors.
417
Counsel for the Petitioners:
Sri Pradeep Kumar Upadhyay

Counsel for the Respondents:
C.S.C., Sri Vibhav Dutt Ojha

A. Service Law - Appointment/Selection -
Intermediate
Education
Act,
1921
-
Regulation
101
Chapter
III
-
Where
proceedings are initiated for selection by
issuing advertisement, the selection should
normally be regulated by the then existing
rules and Government Orders and any
amendment of the rules or the Government
Order pending the selection should not
affect the validity of the selection made by
the selecting authority or the Public Service
Commission unless the amended rules or
the amended Government orders issued in
exercise of its statutory power either by
express
provision
or
by
necessary
intendment indicate that amended Rules
shall
be
applicable
to
the
pending
selections. (Para 8)

The vacancy occurred on 30.11.2014 and was
advertised on 16.11.2021 and as such selection
process was to be governed by the Rules and
GOs in existence on the date on which the
process was initiated i.e. Regulation 101
Chapter III of the Intermediate Education Act,
1921 existing on that date would govern the
field and not the GO dated 25.11.2021. (Para 8,
10)

B. Approval by the DIOS is to be accorded
after
selection
is
held
and
before
appointment.
The
Regulations
101
also
contemplate the same stage i.e. after the
selection process is over but before making
appointment to the post. Prior approval is not
required for holding the selection from the DIOS
and the selection process cannot be held to be
illegal on the score that prior approval had not
been obtained.

Therefore, in the present case, the approval to
the selection process could not have been
denied on the ground that prior permission had
not been obtained by the Committee of
Management
before
proceeding
with
the
recruitment. (Para 10)
C. The Court further finds that the order has
been passed behind the back of the
petitioners and appears to be ante dated
inasmuch as by an order of even date i.e.
23.3.2022 bearing official index No. 13370 the
petitioners were required to furnish certain
information and the petitioners also submitted
their reply on 2.4.2022 but the impugned order
dated
23.3.2022
was
passed
without
considering the reply called for. (Para 12)

Writ petition allowed. (E-4)

Precedent followed:

1. N.T. Devin Katti Vs Karnataka Public Service
Commission, 1990 (3) SCC1 57 (Para 8)

2. The Assam Public Service Commission & ors.
Vs Pranjal Kumar Sharma & ors., [2019] 14 SCR
1072 (Para 9)

3. Preet Kumar Srivastava Vs St. of U.P. & ors.,
2011 (9) ADJ 591 (Para 10)

4. Abhishek Tripathi Vs St. of U.P. & ors., 2015
(4) ADJ 270 (Para 10)

Present
petition
assails
order
dated
23.03.2022, passed by District Inspector
of Schools.

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1.

Heard
Sri
Pradeep
Kumar
Upadhyay,
learned
counsel
for
the
petitioners
and
the
learned
Standing
Counsel for the State respondents.

2. The writ petitioners who are the
Committee of Management of Shivaji Inter
College, Sahson Prayagraj (Allahabad) and
its Manger, initially approached this Court
seeking
the
issuance
of
mandamus
commanding the District Inspector of
Schools, Prayagraj/respondent No.3 to
consider and accord approval to the
selection of one Sri Sudhir Kumar Dwivedi
418 INDIAN LAW REPORTS ALLAHABAD SERIES
s/o Late Rajmadhi Dwivedi as Assistant
Clerk in the Institution in question and
ensure the payment of admissible salary
alongwith other service benefits to him.
During the pendency of the writ petition an
order dated 23.3.2022 came to be passed by
the District Inspector of Schools, Prayagraj
whereby disapproving the appointment and
selection of Sri Sudhir Kumar Dwivedi as
Assistant Clerk in the Institution. The said
order has now been impugned in the writ
petition by amending the writ petition.

3. The facts necessary for the
adjudication of the controversy involved in
the instant writ petition briefly stated are
that there is an educational Institution in the
name and style of Shivaji Inter College,
Sahson, Prayagraj duly recognised and
aided. The petitioner No.1 is its Committee
of Management while the petitioner No.2 is
its Manager. The Institution has an
approved teaching / non teaching strength
of 01 Principal, 12 lecturers, 25 Assistant
Teachers, 01 Head Clerk, 03 Assistant
Clerks and 13 peons. The Institution is
recognised and duly permitted to run
Science and Art streams upto Intermediate
level and has a total student strength of
1652 which includes boys and girls. The
details of the number of students in each
class for the current session have been
stated in para-7 of the writ petition. Two
posts of Assistant Clerks in the Institution
fell vacant on 31.1.2013 and 30.11.2014 on
the retirement of Sri Shiyaram Singh and
Sri Raj Bahadur Singh. The vacancies were
intimated to the respondents vide letters
dated 2.3.2019, 2.4.2019 and 15.9.2019
(Annexure-2 to the writ petition). The
petitioner Committee of Management also
resolved to fill up the post of Assistant
Clerk and sought permission to fill up at
least 01 post vide letters dated 1.10.2021
and 20.10.2021 (Annexure-3 to the writ
petition).
No
response
having
been
received from the Competent Authorities
and considering the emergent situation, the
petitioners proceeded to advertise 01 post
of the Assistant Clerk in the interest of the
Institution and the students in widely
circulated Newspaper namely "Hindustan"
and "Aaj" on 16.11.2021. The District
Inspector of Schools, Prayagraj, respondent
No.3
was
also
intimated
about
the
advertisement vide letter dated 26.11.2021
(Annexure-5
to
the
writ
petition).
Thereafter, a duly constituted Committee
undertook the selection process and 08
eligible candidates appeared and underwent
the selection process which comprised of
typing test and computer knowledge test.
On the basis of the quality point marks
obtained by the candidates one Sri Sudhir
Kumar Dwivedi was placed at Serial No.1
with total quality point marks of 139.3, Sri
Indra Prakash Tiwari was placed at Serial
No.2 with 137.45 quality point marks and
Sri Naresh Kumar Nishad was placed at
Serial No.3 with 135.10 quality point
marks.
The
petitioner
Committee
of
Management accepted the select panel of
the Selection Committee and the requisite
papers were forwarded to the respondent
No.3 vide letter dated 11.12.2021. When
nothing was heard for considerable time
from the office of the respondent No.3, the
petitioners sent reminders on 30.12.2021,
10.1.2022
and
18.1.2022.
Since
no
response was received from the office of
the District Inspector of Schools, Prayagraj
/ respondent No.3 and the requisite papers
submitted with the respondent No.3 on
11.12.2021 was still pending decision, the
petitioners were constrained to approach
this Court by filing the instant writ petition.
During the pendency of the instant writ
petition the District Inspector of Schools,
Prayagraj / respondent No.3 has proceeded
to pass the impugned order declining to
10 All. C/M Shivaji Inter College Sahson, Prayagraj & Anr. Vs. State of U.P. & Ors.
419
accord approval to the selection of Sri
Sudhir Kumar Dwivedi for the post of
Assistant Clerk in the Institution on the
ground that the procedure prescribed for
selection of clerical category / non teaching
posts in recognized unaided Inter Colleges
by Government Order dated 25.11.2021 has
not been followed. Besides the above
certain other shortcomings in the process
adopted has been pointed out.

4. Learned counsel for the petitioners
has assailed the impugned order on the
following grounds that:-

(i) the approval to the selection
process could not have been denied on the
ground that prior permission had not been
obtained by the Committee of Management
before proceeding with the recruitment as
has been held by this Court in the case of
Abhishek Tripathi vs. State of U.P. and
others, reported in 2015 (4) ADJ 270 and
in the case of Jagdish Singh vs. State of
U.P. & others, reported in 2006 (4) ADJ
162;

(ii) the objection that the procedure
prescribed by Government Order dated
25.11.2021 had not been followed is
misconceived inasmuch as the process of
selection
had
commenced
with
Advertisement dated 16.11.2021 and as
such there was no occasion to follow the
procedure laid down under the Government
Order dated 25.11.2021;

(iii) the impugned order has been
passed behind the back of the petitioners
without giving them any opportunity to
explain and substantiate their case;

(iv)
the
impugned
order
dated
23.3.2022 bearing official index No.
13371/-72 is ante dated inasmuch as by
another order dated 23.3.2022 bearing
official index No. 13370 the petitioners
were
required
to
furnish
certain
information which order was received on
31.3.2022 and the petitioners in response
thereto submitted their reply on 2.4.2022.

5. Learned counsel for the petitioner
thus prays that the impugned order is liable
to be set aside and the writ petition is liable
to be allowed.

6.

Learned
Standing
Counsel
appearing for the respondents No. 1 to 3
has resisted the writ petition by submitting
that
the
Government
Order
dated
25.11.2021 provides for constitution of
Selection Committee but the appointing
authority
did
not
adopt
the
proper
procedure after constitution of the Selection
Committee and hence the selection of
Sudhir Kumar Dwivedi as Assistant Clerk
is not liable to be approved. The permission
was not taken from the Department nor the
typing examination was conducted under
the supervision of typing specialist of State
Industrial Training Centre. In para-7 of the
counter affidavit in response to para-14 of
the writ petition it has been stated that for
transparent and clear selection of clerical
grade and non-teaching staff (Class-IV
Employees)
for
a
selection
and
appointment under the selection procedure
was
under
consideration
before
the
competent
authority
and
hence
no
permission was granted to fill up the post
of Assistant Clerk in the Institution. It is
also stated that the Advertisement dated
16.11.2021
is
bad
being
issued
in
contravention of Chapter III Regulation
101 of the U.P. Intermediate Education Act,
1921.

7.

Rival
contentions
fall
for
consideration.

8. Learned counsel for the petitioners
submits that the vacancy was advertised on
420 INDIAN LAW REPORTS ALLAHABAD SERIES
16.11.2021 and as such the selection
process was to be governed by the Rules
and Government Orders in existence on the
date on which the process was initiated.
Reliance is placed upon the decision of the
Apex Court in the case of N.T. Devin Katti
vs.
Karnataka
Public
Service
Commission, reported in 1990 (3) SCC
157 in which it has been held as follows:-

"Where proceedings are initiated for
selection by issuing advertisement, the
selection should normally be regulated by
the then existing rules and Government
Orders and any amendment of the rules or
the
Government
Order
pending
the
selection should not affect the validity of
the selection made by the selecting
authority or the Public Service Commission
unless the amend- ed rules or the amended
Government orders issued in exercise of its
statutory power either by express provision
or by necessary intendment indicate that
amended Rules shall be applicable to the
pending selections. See P. Mahendra &
Ors. v. State of Karnataka & Ors., [1989] 4
Judgment Today SC 459."

9. Reliance is also placed upon the
decision of the Apex Court in the case of
The Assam Public Service Commission
& others vs. Pranjal Kumar Sarma &
others, reported in 2019 0 Supreme (SC)
1302 where in para-13 it has been held as
under:-

"13.
The
law
with
regard
to
applicability of the Rules which are brought
anew during the selection process have
been crystalized by this Court. It has been
held that the norms selection existing
begins, alteration process to the will the
unless on control norms the date the would
new when process selection not Rules the
affect are and the to of the ongoing be
given retrospective effect. (See State of
Bihar and Others vs. Mithilesh Others
Kumar 1 ). vs. Similarly Karnataka in
Public N.T. Devin Service Katti and
Commission and Others 2 , this Court held
that a candidate has a limited right of with
the being Rules considered as they for
selection existed in on accordance the date
of advertisement and he cannot be deprived
of that limited right by amendment of the
Rules during the pendency of the selection,
unless the Rules are to be applied
retrospectively."

10. Learned counsel for the petitioner
contends that the vacancy occurred on
30.11.2014
and
was
advertised
on
16.11.2021 and as such the Regulation 101
Chapter III of the Intermediate Education
Act, 1921 existing on that date would
govern the field and not the Government
Order dated 25.11.2021 as being suggested
by the respondents and also made basis of
the impugned order. Placing reliance upon
the decision in the case of Preet Kumar
Srivastava vs. State of U.P. and others
(2011 (9) ADJ 591), it is contended that the
controversy as to what would be the stage
of grant of approval by the District
Inspector of Schools has been set at rest
and it has been held that approval is to be
accorded after selection is held and before
appointment. The Regulations 101 also
contemplate the same stage that is after the
selection process is over but before making
appointment to the post. A coordinate
Bench of this Court has also reiterated the
proposition argued by the learned counsel
for the petitioner in the case of Abhishek
Tripathi vs. State of U.P. & others,
reported in 2015 (4) ADJ 270. Thus, the
Court finds force in the submission of the
learned counsel for the petitioner that prior
approval was not required for holding the
selection from the District Inspector of
10 All. Lal Chand Vs. State of U.P. & Ors.
421
Schools and the selection process cannot be
held to be illegal on the score that prior
approval had not been obtained.

11. The Court also finds substance in
the contention of the counsel for the
petitioners that the procedure prescribed by
the Government Order dated 25.11.2021
which had admittedly been issued after the
commencement of the selection process
was not liable to be followed in view of the
law laid down by the Apex Court in 1990
(3) SCC 157 and 2019 0 Supreme (SC)
1302 referred to hereinbefore.

12. The Court further finds that the
order has been passed behind the back of
the petitioners and appears to be ante dated
inasmuch as by an order of even date i.e.
23.3.2022 bearing official index No. 13370
the petitioners were required to furnish
certain information and the petitioners also
submitted their reply on 2.4.2022 but the
impugned order dated 23.3.2022 was
passed without considering the reply called
for.

13. It is not borne out from the
recitals of the impugned order that any
other infirmity was found in the selection
process adopted by the petitioners for
filling up the vacancy in question.

14. Consequently, in view of the
above, the order passed by the District
Inspector of Schools dated 23.3.2022
cannot be sustained and is accordingly
quashed. The matter is remitted back with a
direction to the District Inspector of
Schools, Prayagraj to pass a reasoned and
speaking order strictly in accordance with
the provisions contained in Regulation 101
Chapter III, Intermediate Education Act,
1921 and the observations made herein
above, expeditiously preferably within a
period of 45 days from the date of service
of this order.

15. The writ petition stands allowed,
accordingly.
----------
(2022) 10 ILRA 421
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 4083 of 2021

Lal Chand ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arun K. Singh Deshwal

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension and other retiral
benefits - The Uttar Pradesh Retirement
Benefit Rules, 1961- Rule 3(8); The Uttar
Pradesh Qualifying Service For Pension
And
Validation
Ordinance,
2020;
Constitution
of
India:
Article
14
-
Complete
service
rendered
by
the
petitioner i.e. period of service shall be
considered
for
grant
of
pensionary
benefits. Service rendered against the
temporary establishment converted into
permanent post shall be considered for
qualifying service to grant pension as well
as
retiral
benefits.
Ad
hoc
service
rendered
by
the
petitioner
shall
be
considered for reckoning his seniority and
other consequential benefits. (Para 15, 16,
17)

B. Words and Phrases - (a)'Qualifying
Service' - Rule 3(8) of Rules, 1961 is very
much clear, which provides that "qualifying
service" means service which qualifies for
pension in accordance with the provisions of