# Chandra Prakash Singh / v. District Inspector of Schools, Kushinagar & Ors

- **Citation:** (2022) 11 ILRA 502
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-26
- **Case number:** Special Appeal No. 1056 of 2018
- **Bench:** Mrs. Sunita Agarwal, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-prakash-singh-v-district-inspector-of-schools-kushinagar-ors-47846
- **Pages:** 9

## Headnote

A. Service Law - Appointment - Payment
of Salary - U.P. Intermediate Education
Act, 1921 - The Uttar Pradesh High School
and Intermediate College (Payment of
Salaries
of
the
Teachers
and
Other
Workers) Act, 1971 - U.P. Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981 - In
the matter of intra-court appeal arising
out of writ proceedings, the Division
Bench needs to consider the appeal on
merits by deciding the correctness of the
judgment of the learned Single Judge
instead of remitting the matter to the
learned Single Judge. (Para 5)

B. Merits of the present case - The
petitioner claims that he was appointed in
L.T.
Grade
after
promotion
of
Shri
Shambhu Sharan Singh from C.T. Grade to
L.T. Grade. C.T. Grade was a lower grade and
in case, it is accepted for a moment that the
promotion of Shri Shambhu Sharan Singh from
C.T. Grade to L.T. Grade was approved by the
order dated 10.9.1999, which is appended as
Annexure '11' to the writ petition, vacancy, if
any, would have arisen in C.T. Grade and
not in L.T. Grade. The appointment of the
petitioner could not be made in L.T. grade
on account of promotion of the said
incumbent in L.T. grade. (Para 20, 21)

Whether the promotion or merger of Shri
Shambhu Sharan Singh in L.T. Grade was
approved
or
disapproved,
in
both
eventuality, no post in L.T. Grade became
vacant. Meaning thereby, that in case, the
promotion/merger of Shri Shambhu Sharan
Singh in L.T. Grade was not approved, he would
have continued as C.T. Grade teacher, till he
would
have
fulfilled
the
requirement
of
merger/promotion in L.T. Grade. (Para 23, 24)

In case his promotion/merger in L.T. Grade was
approved, no vacancy would have occurred, the
reason being that the C.T. Grade was a dying
cadre and further recruitment in the said grade
was banned. An incumbent working in C.T.
Grade at the time of the issuance of the GO
dated 19.2.1991 was entitled to be merged in
L.T. Grade on completion of two conditions, i.e.
ten years of satisfactory service on 1.1.1986 and
possessing the qualification of being a trained
graduate. Those who did not complete ten years
of satisfactory service as on 1.1.1986 were
merged later as Assistant Teacher in L.T. Grade
as soon as they completed ten years of service
and there occurred vacancy in L.T. Grade in
promotion quota. (Para 25)

The contention of the petitioner that he
was appointed against a short term
vacancy of L.T. Grade after following due
procedure
under
the
Act
is
found
misconceived. As there was no vacancy, there
was no occasion for the Committee of
Management to notify the same or to make
selection. The entire process of selection of the
petitioner/appellant as Assistant Teacher, L.T.
Grade
adopted
by
the
Committee
of
Management of the institution is absolutely
illegal. The appointment of the petitioner is
held to be void ab initio. (Para 27)

Writ petition dismissed. Special Appeal
dismissed. (E-4)

Precedent followed:

## Text

502 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Anyone who takes recourse to
fraud, deflects the course of judicial
proceedings; or if anything is done with
oblique motive, the same interferes with the
administration of justice. Such persons are
required to be properly dealt with, not only
to punish them for the wrong done, but also
to deter others from indulging in similar
acts which shake the faith of people in the
system of administration of justice.

*

*

*

14. The legal position thus is that
if the publication be with intent to deceive
the court or one made with an intention to
defraud, the same would be contempt, as it
would interfere with administration of
justice. It would, in any case, tend to
interfere with the same. This would
definitely be so if a fabricated document is
filed with the aforesaid mens rea. In the
case at hand the fabricated document was
apparently to deceive the court; the
intention to defraud is writ large. Anil
Kumar is, therefore, guilty of contempt."

17. In K.D. Sharma Vs. Steel
Authority of India Limited and others
(2008) 12 SCC 481 it was observed:

"39. If the primary object as
highlighted in Kensington Income Tax
Commrs., (1917) 1 KB 486 : 86 LJKB
257 : 116 LT 136 (CA) is kept in mind,
an applicant who does not come with
candid facts and "clean breast" cannot
hold a writ of the court with "soiled
hands". Suppression or concealment of
material facts is not an advocacy. It is a
jugglery, manipulation, manoeuvring or
misrepresentation, which has no place in
equitable and prerogative jurisdiction. If
the applicant does not disclose all the
material facts fairly and truly but states
them in a distorted manner and misleads
the court, the court has inherent power in
order to protect itself and to prevent an
abuse of its process to discharge the rule
nisi and refuse to proceed further with the
examination of the case on merits. If the
court does not reject the petition on that
ground, the court would be failing in its
duty. In fact, such an applicant requires to
be dealt with for contempt of court for
abusing the process of the court."

18. In Dhananjay Sharma Vs.
State of Haryana and others (1995) 3
SCC 757 filing of a false affidavit was
the basis for initiation of action in
contempt jurisdiction and the concerned
persons were punished.

9. In view of above exposition of
law and considering the fact that
material facts have been concealed by
the writ-petitioners while filing the writ
petition, the present appeal is allowed.
The impugned order passed by learned
Single dated June 23, 2020 is set aside
subject to cost of ₹ 1,00,000/-, out of
which ₹ 50,000/- shall be paid by
respondent no. 5 to the appellant
whereas ₹ 50,000/- shall be deposited
with the Mediation Centre. Costs shall
be paid and deposited within a period of
one month from today and compliance
report submitted in Registry.
----------
(2022) 11 ILRA 502
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Special Appeal No. 1056 of 2018

Chandra Prakash Singh
 ...Appellant/Petitioner
Versus
District Inspector of Schools, Kushinagar
& Ors. ...Respondents
11 All. Chandra Prakash Singh Vs. District Inspector of Schools, Kushinagar & Ors.
503
Counsel for the Appellant:
Sri Ramesh Chandra Dwivedi, Sri Dinesh
Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Appointment - Payment
of Salary - U.P. Intermediate Education
Act, 1921 - The Uttar Pradesh High School
and Intermediate College (Payment of
Salaries
of
the
Teachers
and
Other
Workers) Act, 1971 - U.P. Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981 - In
the matter of intra-court appeal arising
out of writ proceedings, the Division
Bench needs to consider the appeal on
merits by deciding the correctness of the
judgment of the learned Single Judge
instead of remitting the matter to the
learned Single Judge. (Para 5)

B. Merits of the present case - The
petitioner claims that he was appointed in
L.T.
Grade
after
promotion
of
Shri
Shambhu Sharan Singh from C.T. Grade to
L.T. Grade. C.T. Grade was a lower grade and
in case, it is accepted for a moment that the
promotion of Shri Shambhu Sharan Singh from
C.T. Grade to L.T. Grade was approved by the
order dated 10.9.1999, which is appended as
Annexure '11' to the writ petition, vacancy, if
any, would have arisen in C.T. Grade and
not in L.T. Grade. The appointment of the
petitioner could not be made in L.T. grade
on account of promotion of the said
incumbent in L.T. grade. (Para 20, 21)

Whether the promotion or merger of Shri
Shambhu Sharan Singh in L.T. Grade was
approved
or
disapproved,
in
both
eventuality, no post in L.T. Grade became
vacant. Meaning thereby, that in case, the
promotion/merger of Shri Shambhu Sharan
Singh in L.T. Grade was not approved, he would
have continued as C.T. Grade teacher, till he
would
have
fulfilled
the
requirement
of
merger/promotion in L.T. Grade. (Para 23, 24)

In case his promotion/merger in L.T. Grade was
approved, no vacancy would have occurred, the
reason being that the C.T. Grade was a dying
cadre and further recruitment in the said grade
was banned. An incumbent working in C.T.
Grade at the time of the issuance of the GO
dated 19.2.1991 was entitled to be merged in
L.T. Grade on completion of two conditions, i.e.
ten years of satisfactory service on 1.1.1986 and
possessing the qualification of being a trained
graduate. Those who did not complete ten years
of satisfactory service as on 1.1.1986 were
merged later as Assistant Teacher in L.T. Grade
as soon as they completed ten years of service
and there occurred vacancy in L.T. Grade in
promotion quota. (Para 25)

The contention of the petitioner that he
was appointed against a short term
vacancy of L.T. Grade after following due
procedure
under
the
Act
is
found
misconceived. As there was no vacancy, there
was no occasion for the Committee of
Management to notify the same or to make
selection. The entire process of selection of the
petitioner/appellant as Assistant Teacher, L.T.
Grade
adopted
by
the
Committee
of
Management of the institution is absolutely
illegal. The appointment of the petitioner is
held to be void ab initio. (Para 27)

Writ petition dismissed. Special Appeal
dismissed. (E-4)

Precedent followed:

1. Roma Sonkar Vs Madhya Pradesh State Public
Service Commission & anr., 2018 (17) SCC 106
(Para 5)

2. Radha Raizada & ors. Vs Committee of
Management, Vidyawati Darbari Girl's Inter
College & ors., 1994 (3) UPLBEC 1551 (Para 13)

Present
special
appeal
challenges
judgment and order dated 10.08.2018,
passed by Hon'ble Mr. Justice Sudhir
Agarwal, J. in Civil Misc. Writ Petition No.
30395 of 2021.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, .J.
&
Hon'ble Vikram D. Chauhan, J.)
504 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Dinesh Kumar Singh
learned counsel for the appellant and Sri
Ram Ratan Dev Vanshi learned Standing
Counsel for the State-respondent.

2. The present special appeal is
preferred challenging the judgment and
order dated 10th August, 2018 passed by
the learned Single Judge in Writ-A No.
30395 of 2001 (Chandra Prakash Singh Vs.
District Inspector of Schools And others).

3. The said order dated 10th August,
2018 was passed in the absence of the
counsel for the Appellant-Petitioner in the
writ proceedings and the learned Single
Judge after going through the pleadings and
the relief sought has simply recorded a
finding that the Appellant-Petitioner has
not been able to make out a case so as to
justify interference of this Court by
granting relief. No finding, however, has
been returned on the merits of the claim of
the petitioner/appellant herein.

4. The primary challenge to the order
dated 10th August, 2018 is to the effect that
the order has been passed ex parte and the
conclusion drawn by the learned Single
Judge is unsustainable in law. It is also
submitted by the learned counsel for the
Appellant-Petitioner that the Appellant was
validly appointed on the post of Assistant
Teacher in L.T. Grade in the institution in
question and has been denied the payment
of salary on account of illegal order passed
by the respondent authority which was
subject matter of challenge in the Writ
Petition No. 30395 of 2001 against which
the present special appeal has been
preferred. The learned Single Judge has not
adjudicated the claim of the petitioner.

5. The present special appeal is an
intra-court appeal from a Single Bench of
this Court to a Division Bench of this Court
and the purpose of providing special appeal
against an order of learned Single Judge is
to provide another tier of screening by the
Division Bench and the same would not
mean that the learned Single Judge is
subordinate to the Division Bench although
the learned Single Judge under law of
precedent and principle of finality attached
to the orders of Appellate Court, is bound
by the order passed by the Appellate Court.
While considering the powers of a Division
Bench while deciding intra-court appeal,
the Hon'ble Apex Court in Roma Sonkar
Vs.
Madhya
Pradesh
State
Public
Service Commission and another has
held that in the matter of intra-court appeal
arising out of writ proceedings, the
Division Bench needs to consider the
appeal
on
merits
by
deciding
the
correctness of the judgment of the learned
Single Judge instead of remitting the matter
to the learned Single Judge. In this
reference, paragraph no. 3 of the judgment
of the Apex Court as aforesaid of the Apex
Court is quoted hereinbelow :-

"3.
We
have
very
serious
reservations whether the Division Bench in
an intra-court appeal could have remitted a
writ petition in the matter of moulding the
relief. It is the exercise of jurisdiction of the
High Court under Article 226 of the
Constitution of India. The learned Single
Judge as well as the Division Bench
exercised the same jurisdiction. Only to
avoid inconvenience to the litigants,
another tier of screening by the Division
Bench is provided in terms of the power of
the High Court but that does not mean that
the Single Judge is subordinate to the
Division Bench. Being a writ proceeding,
the Division Bench was called upon, in the
intra-court appeal, primarily and mostly to
consider the correctness or otherwise of the
11 All. Chandra Prakash Singh Vs. District Inspector of Schools, Kushinagar & Ors.
505
view taken by the learned Single Judge.
Hence, in our view, the Division Bench
needs to consider the appeal(s) on merits
by deciding on the correctness of the
judgment of the learned Single Judge,
instead of remitting the matter to the
learned Single Judge."

6. Learned counsel for the Appellant
as well as learned Standing Counsel for the
Respondents have consented to advance
arguments on the merits of the dispute as
the writ petition as well as the counter
affidavit have been filed along with the
memo of appeal and, according to the
learned counsel for the parties, all the
pleadings are on record and the matter can
be adjudged on the merits itself. It is to be
noted that the dispute in the present case
started in the year 1997 and, thereafter, the
matter has been relegated to the respondent
authorities for decision afresh on more than
one occasion. However, the dispute has not
been settled and under the circumstances
when the litigant has travelled for more
than two decades without the controversy
being set at rest by judicial determination,
it would be appropriate that the matter be
considered on the merits of the dispute,
specifically when both the parties have
advanced argument on the merits.

7. Learned counsel for the AppellantPetitioner submits that there is an education
institution in the name of Mahatama
Gandhi
Inter
College,
Sakhawania,
Kushinagar (for brevity hereinafter referred
to as ''institution') which is recognised
under the provisions of U.P. Intermediate
Education Act, 1921 and the provisions of
U.P. Act No. 24 of 1971 are applicable to
the
said
institution
being
an
aided
institution. On 1st December, 1996, a short
term vacancy of teacher arose in the
aforesaid institution on account of adhoc
promotion of Sri Shambhu Sharan Singh to
the next higher post in the L.T. Grade. The
intimation about the vacancy was sent to
the District Inspector of Schools and the
vacancy was also notified on the notice
board of the institution. The vacancy was
later advertised in the newspaper ''Aaj' on
11th December, 1996 and in another local
newspaper
''Watchkara'.
It
is
further
submitted
that
in
pursuance
to
the
abovementioned
advertisement,
the
Appellant-Petitioner
being
qualified
applied against the advertised vacancy. The
selection committee was constituted under
the provisions of the U.P. Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981
(hereinafter referred to as "the Order,
1981"). Interview was conducted and the
Appellant-Petitioner
having
obtained
highest quality point marks amongst the
candidates who had applied against the
aforesaid vacancy, had been recommended
by the selection committee for appointment
as Assistant Teacher in L.T. Grade on adhoc
basis.
On
the
basis
of
the
recommendation made by the aforesaid
selection committee, the Committee of
Management in its meeting held on 30th
December, 1996 had resolved to appoint
the
Appellant-Petitioner
as
Assistant
Teacher in L.T. Grade on ad-hoc basis.

8. The papers with regard to the
appointment of the Appellant-Petitioner
along with the resolution of the Committee
of Management were forwarded by the
Manager of the institution to the District
Inspector
of
Schools
for
his
prior
approval/financial
sanction.
When
no
response was received, the Committee of
Management of the institution issued a
formal letter of appointment on 15th
January, 1997 to the Appellant-Petitioner
and the Appellant-Petitioner in pursuance
506 INDIAN LAW REPORTS ALLAHABAD SERIES
to the aforesaid letter of appointment joined
his duty as Assistant Teacher in L.T. Grade
in the institution on 16th January, 1997.
The District Inspector of Schools vide
order dated 28th July, 1997 refused to grant
the financial approval to the appointment of
the Appellant-Petitioner. The aforesaid
refusal to grant approval to the appointment
of the Appellant-Petitioner by the District
Inspector of Schools was on account of the
fact that the Committee of Management
was not having power of appointment at
that point of time and as such, the
appointment, as per the District Inspector
of Schools, was illegal.

9. The Appellant-Petitioner being
aggrieved by the abovementioned order
dated 28th July, 1997 preferred Writ
Petition No. 32449 of 1997 before this
Court. The aforesaid writ petition was
finally disposed of by the judgment and
order dated 26th September, 1997 with the
direction to the respondent - District
Inspector of Schools to examine the matter
whether there was any short term vacancy
as it was not clear whether the post on
which
the
Appellant-Petitioner
was
working was converted from C.T. Grade to
L.T. Grade or it was a vacancy on the post
which had fallen vacant or it was a short
term vacancy. It was further directed that
the District Inspector of Schools shall
examine
whether
the
Committee
of
Management had followed the procedure
prescribed for the appointment.

10.

Thereafter,
the
AppellantPetitioner made a representation to the
District Inspector of Schools along with the
certified copy of the judgment and order
dated 26th September, 1997 passed by this
Court. The District Inspector of Schools in
pursuance to the abovementioned order
dated 26th September, 1997 has proceeded
to pass the order dated 2nd October, 2000
granting
financial
approval
to
the
appointment of the Appellant-Petitioner as
Assistant Teacher in L.T. Grade. A perusal
of the above-mentioned order dated 2nd
October, 2000 passed by the District
Inspector of Schools would show that the
aforesaid approval had been granted in
compliance of the order dated 26th
September, 1997 passed by this Court.

11. It is submitted that the said officer
who was posted as District Inspector of
Schools, Kushinagar was transferred in
October, 2000 and, thereafter, the new
incumbent had taken charge of the post of
District Inspector of Schools, Kushinagar.
The new District Inspector of Schools,
Kushinagar by
the order
dated 9th
November, 2000 had stopped the salary of
the
Appellant-Petitioner
and
further
directed the Manager of the institution to
show cause as to why action be not taken
under the provisions of U.P. Intermediate
Education Act, 1921. A bare perusal of the
order dated 9th November, 2000 of the
District
Inspector
of
Schools
would
demonstrate that the aforesaid order had
been passed on the basis of the report of the
enquiry committee constituted by the
District Magistrate, Kushinagar wherein
appointment of five Assistant Teachers in
the institution had been found to be
irregular and the name of the AppellantPetitioner figured in the said list of teachers
irregularly appointed.

12. The Appellant-Petitioner being
aggrieved by the abovementioned order
dated 9th November, 2000 passed by the
District Inspector of Schools preferred
Civil Misc. Writ Petition No. 5925 of 2001
before this Court. The aforesaid writ
petition was finally decided by the
judgment dated 16th February, 2001 and
11 All. Chandra Prakash Singh Vs. District Inspector of Schools, Kushinagar & Ors.
507
the order dated 9th November, 2000 in so
far it relates to the Appellant-Petitioner was
set aside and it was directed by this Court
that the copy of the enquiry report
conducted by the District Magistrate shall
be supplied to the Appellant-Petitioner and,
thereafter, a fresh reasoned and speaking
order
shall
be
passed
after
giving
opportunity of hearing to the AppellantPetitioner
and
the
Committee
of
Management of the institution.

13. In pursuance of the order dated
9.11.2000 passed by this Court, the District
Inspector of Schools on 13th July, 2001
had passed an order recalling the earlier
order dated 2nd October, 2000 according
financial approval to the appointment of the
Appellant-Petitioner and holding that the
appointment of the Appellant-Petitioner
was without any post and as such was
irregular and illegal. The finding recorded
by the District Inspector of Schools in the
order dated 13th July, 2001 is to the effect
that the Appellant-Petitioner was appointed
on account of the vacancy created by adhoc promotion of one Sri Shambhu Sharan
Singh on the post of L.T. Grade whereas
the promotion of Sri Shambhu Sharan
Singh was not accorded financial approval
by the District Inspector of Schools and as
such no vacancy was created. The order
dated 13th July, 2001 further records that
the vacancy in question was not advertised
in widely circulated newspaper as per the
Full Bench decision of this Court in the
case of Radha Raizada and others Vs.
Committee of Management, Vidyawati
Darbari Girl's Inter College and others.

14. The Appellant-Petitioner being
aggrieved by the order dated 13th July,
2001 preferred Writ-A No. 30395 of 2001
before this Court. The aforesaid writ
petition was finally dismissed by means of
the judgment and order dated 10th August,
2018, which is subject matter of challenge
in the instant Special Appeal.

15. It is submitted on behalf of the
counsel for the Appellant-Petitioner that
while passing the order dated 13th July,
2001, the District Inspector of schools has
incorrectly recorded that the financial
approval to the promotion of Shambu
Sharan Singh had not been granted and,
therefore, no post of Assistant Teacher fell
vacant. The counsel for the Appellant
submits that by the order dated 10th
September, 1999, financial approval was
granted to the promotion of Shambu Sharan
Singh and after the promotion of Shambu
Sharan Singh on the post of Assistant
Teacher, the post of Assistant Teacher in
L.T. Grade fell vacant.

16.

Learned
standing
Counsel
appearing on behalf of the respondents
submits that the District Inspector of
Schools has rightly rejected the claim of the
Appellant-Petitioner. It is submitted that
the then District Inspector of Schools,
Kushinagar Shri Kripa Lal Vishwakarma
committed gross irregularity in making
appointment
during
his
tenure
and
complaints
with
regard
to
illegal
appointment of teachers were received by
the
Government
and
the
District
Magistrate. As a result of those complaints,
the charge of the office of the District
Inspector of Schools was handed over to
Shri Gyan Prakash Singh and the aforesaid
incumbent
to
the
office
of
District
Inspector of Schools had informed the
District Magistrate about the irregularities
committed by the earlier District Inspector
of Schools.

On the aforesaid basis, by the
order dated 13th October, 2000 the District
Magistrate,
Kushinagar
constituted
a
508 INDIAN LAW REPORTS ALLAHABAD SERIES
committee for enquiry into the allegations
of irregularity in the appointment of
teachers by Shri Kripa Lal Vishwakarma.
The aforesaid enquiry committee on the
basis of the records available prima facie
came to the conclusion that Shri Kripa Lal
Vishwakarma,
the
erstwhile
District
Inspector of schools, made illegal/irregular
appointments in 29 institutions during his
tenure. The aforesaid enquiry committee
also found that the appointment of the
Appellant-Petitioner
was
also
not
in
accordance with Law. The list of irregular
appointments made by Shri Kripa Lal
Vishwakarma while he was the District
Inspector of Schools, Kushinagar was also
forwarded by the District Inspector of
Schools to the District Magistrate by his
Communication
dated
8th
November,
2000.

It is further submitted that on
account of the Government Order dated
24th June, 1993, the Committee of
Management was not authorised to make
appointment. It is submitted that the order
of financial approval dated 10th September,
1999 (as claimed by Appellant-Petitioner)
in respect of Shambhu Sharan Singh has
not been brought on record by the
Appellant-Petitioner and that no financial
approval was granted to Shri Sambhu
Sharan Singh.

He further submits that the
advertisement in respect of the post in
question was said to have been made on
11th December, 1996 in respect of a short
term vacancy that arose on 1st December,
1996 on adhoc promotion of Shri Shambhu
Sharan Singh to the next higher post in L.T.
Grade and according to the AppellantPetitioner, the promotion of Shri Shambhu
Sharan Singh to next higher grade was
approved on 10th September, 1999 and as
such there was no occasion to conduct
selection
proceedings
and
issue
advertisement in the year 1996 when there
was no short-term vacancy.

17. Having heard learned counsels for
the parties and perused the record. We may
note
that
the
claim
of
the
petitioner/appellant in the writ petition is
that he was appointed against a short term
vacancy which arose on 1.12.1996 on
account of adhoc promotion of the
incumbent Shri Shambhu Sharan Singh to
LT Grade. The contention is that the said
vacancy was notified to the District
Inspector of Schools and was also notified
on the Notice Board of the institution. The
vacancy was also advertised in two daily
newspapers of wide circulation and on the
interview taken by the Selection Committee
constituted under the provisions of the U.P.
Secondary Education Services Commission
(Removal of Difficulties) (Second) Order,
1981, the petitioner was recommended
against the post having attained highest
quality
point
marks
amongst
other
candidates. The Committee of Management
in its meeting held on 30.12.1996,
accepting the recommendation of the
Selection Committee, resolved to appoint
the petitioner as Assistant Teacher in L.T.
Grade on adhoc basis. The papers relating
to appointment of the petitioner alongwith
the resolution of the Committee of
Management were forwarded to the District
Inspector of Schools by the Manager of the
institution on 31.12.1996 and were received
in the office of the District Inspector of
Schools on 3.1.1997. The Manager of the
institution requested the District Inspector
of Schools to accord financial approval of
the adhoc appointment made by the
Committee of Management. However, the
District Inspector of Schools did not
communicate
its
decision
regarding
disapproval or approval of the appointment
made by the Committee within the
11 All. Chandra Prakash Singh Vs. District Inspector of Schools, Kushinagar & Ors.
509
stipulated period. As no communication
was received from the office of the District
Inspector of Schools, taking it to be a case
of deemed approval, formal letter of
appointment was issued to the petitioner on
15.1.1997 and he had joined his duty on
16.1.1997 as Assistant Teacher in L.T.
Grade.

18. In this factual background, we
may take note of the communication dated
10.9.1999 appended as Annexure ''11' of
the writ petition (page ''86' of the paper
book). The said letter was issued from the
office of the District Inspector of Schools,
Kushinagar and is addressed to the
Manager of the institution concerned. The
said letter is in relation to the approval of
promotion of Shri Shambhu Sharan Singh
from C.T. Grade to L.T. Grade. This letter
shows that Shri Shambhu Sharan Singh
was working in C.T. Grade and the
proposal for his promotion to L.T. Grade
against 50% quota for promotion was made
by the Committee of Management on
2.12.1996.

19. This approval letter has been
appended with the writ petition and is relied
by the petitioner to assert that the observation
in the order impugned that the approval was
not granted to the promotion of Shri
Shambhu Sharan Singh was incorrect. The
order impugned is dated 30.7.2001 which
records that the appointment of the petitioner
had been made in L.T. Grade against the
vacancy on account of promotion of Shri
Shambhu Sharan Singh in L.T. Grade on
1.12.1996, whereas no approval of the
promotion of Shri Shambhu Sharan Singh
was granted by the District Inspector of
Schools. Resultantly, no post became vacant.

20. In view of these facts, at the
outset, it may be noted that the petitioner
claims that he was appointed in L.T. Grade
after promotion of Shri Shambhu Sharan
Singh from C.T. Grade to L.T. Grade.

21. Admittedly, C.T. Grade was a
lower grade and in case, it is accepted for a
moment that the promotion of Shri
Shambhu Sharan Singh from C.T. Grade to
L.T. Grade was approved by the order
dated 10.9.1999, which is appended as
Annexure ''11' to the writ petition, vacancy,
if any, would have arisen in C.T. Grade and
not in L.T. Grade. The appointment of the
petitioner could not be made in L.T. grade
on account of promotion of the said
incumbent in L.T. grade.

Further, C.T. Grade was declared
a dying cadre in pursuance of the
recommendations
made
by
the
Pay
Revision
Committee,
1989
by
the
Government Order No. 3299/15.7.19891(136)/89 dated 11.8.1989 for the private
higher
secondary
schools.
Further
clarifications were issued on 4.9.1990 and
by the Government Order dated 19.2.1991,
C.T. Grade was declared a dying cadre in
government higher secondary schools and
Intermediate colleges. It was directed that
in future, no post in C.T. Grade shall be
created, as the C.T. Grade had been
declared a dying cadre and further
recruitment in that grade was banned. By
the Government Order dated 9.1.1992, it
was declared that consequent to the C.T.
Grade being declared as dying cadre, all
such C.T. Grade teachers, who have
completed ten years of satisfactory service
and subject to their being trained graduates,
shall be merged as L.T. Grade teachers.
Meaning thereby that if a C.T. Grade
teacher had already completed ten years of
satisfactory service, he would be merged as
L.T. Grade, and the cut-off date fixed was
1.1.1986. For those who did not complete
ten years of satisfactory service on
510 INDIAN LAW REPORTS ALLAHABAD SERIES
1.1.1986, it was directed that they would be
merged as Assistant Teacher (L.T. Grade)
as soon as they complete ten years of
satisfactory service.

22. It seems from the order of the District
Inspector of Schools dated 10.9.1999 that the
incumbent working in C.T. Grade namely Shri
Shambhu Sharan Singh was merged in L.T.
Grade against the post available in promotion
quota. A further perusal of the order impugned
dated 3.7.2001 indicates that the said proposal
of promotion/merger of Shri Shambhu Sharan
Singh was approved.

23. Be that as it may, whether the
promotion or merger of Shri Shambhu Sharan
Singh in L.T. Grade was approved or
disapproved, in both eventuality, no post in L.T.
Grade became vacant.

24. Meaning thereby that in case the
promotion/merger of Shri Shambhu Sharan
Singh in L.T. Grade was not approved, he
would continue as C.T. Grade teacher till he
would have fulfilled the requirement of
merger/promotion in L.T. Grade.

25. On the other side, in case his
promotion/merger in C.T. Grade was approved,
there would occur no vacancy, the reason being
that the C.T. Grade was a dying cadre and
further recruitment in the said grade was
banned. An incumbent working in C.T. Grade
at the time of the issuance of the Government
Order dated 19.2.1991 was entitled to be
merged in L.T. Grade on completion of two
conditions, i.e. ten years of satisfactory service
on 1.1.1986 and possessing the qualification of
being a trained graduates. Those who did not
complete ten years of satisfactory service as on
1.1.1986 were merged later as Assistant
Teacher in L.T. Grade as soon as they
completed ten years of service and there occur
vacancy in L.T. Grade in promotion quota.

26. In view of the above, the statement in
the order impugned dated 3.7.2001 that there
was no vacancy on account of promotion of
Shri Shambhu Sharan Singh is found to be
correct. Though the said order is not happily
worded but the crux of the matter is that there
occur no vacancy in L.T. Grade, against which
the petitioner could have been appointed,
terming it as appointment against a short term
vacancy.

27. In view of the above discussion, on
the merits of the case, the contention of the
learned counsel for the petitioner that the
petitioner was appointed against a short-term
vacancy of L.T. Grade after following due
procedure under the Act is found misconceived.
As there was no vacancy, there was no occasion
for the Committee of Management to notify the
same or to make selection. The entire process of
selection of the petitioner/appellant as Assistant
Teacher, L.T. Grade adopted by the Committee
of Management of the institution is absolutely
illegal. The appointment of the petitioner is held
to be void ab initio.

The writ petition is, accordingly,
dismissed being devoid of merits.

In the result, the appeal stands
dismissed.
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(2022) 11 ILRA 510
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 12486 of 2022

Sharad Kumar Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Seemant Singh