# Chhama Shankar Pandey v. District Inspector of schools and others

- **Citation:** (2006) 1 ILRA 117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-20
- **Case number:** Civil Misc. Writ Petition No. 19993 of 2002
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhama-shankar-pandey-v-district-inspector-of-schools-and-others-40644
- **Pages:** 6

## Headnote

Sri S.D. Shukla
S.C.

(A) U.P. Secondary Education Service
Commission (Removal of Difficulties)
(Second
Order
1981-Clause-2
(3)-
Deemed approval-short terms vacancy in
L.T. Grade caused-due to promotion of
permanent
L.T.
Grade
Teachers
118 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
promotion on the post of Lecturer in
Hindi-duly
approved
on
1.2.96management advertised the short term
vacancy
of
L.T.
Grade
Teacher
on
26.12.96 in "Amar Ujala" and Pioneer"
on
27.12.96-21.1.07
management
submitted entire paper before D.I.O.S.
for approval-No Order passed-held-legal
fiction created-about deemed approval
of the said proposal.

Held: Para 6

A bare perusal of the said provision
would show that a mandate has been
issued to the District Inspector of
Schools to pass orders either approving
or
disapproving
the
proposed
appointment and in case the order is not
passed within seven days of the receipt
of the proposal, a legal fiction has been
created by which the said proposal
would be deemed approved. This ratio
has been accepted in several cases
including by a Division Bench of this
Court in the case of Ashika Prasad
Shukla Vs. District Inspector of Schools
and another [(1998) 3 U.P.L.B.E.C. 1722]
and subsequently followed in several
cases. Thus, the first ground given in the
impugned order cannot be sustained as
it was a case of deemed approval.

(B) Intermediate Education Act 1921Short
term
vacancy'
in
L.T.
grade
teacher-due
to
the
promotion
of
permanent incumbent on the post of
lecturer on Ad-hoc basis-duly approved
by the D.I.O.S.-appointment on short
term
vacancy
made
after
due
advertisement
in
two
news
paper,
having
vide
circulation-appointment
made without prior approval of D.I.O.S.-
whether such appointment is bad? Held
"No"-neither in impugned order nor in
counters affidavit, not during course of
argument
any
legal
requirement
disclosed-appointment governed by 2nd
removal
of
Difficulties
Order
1981-
perfectly valid.

Held: Para 7

The second ground on which the claim
has been rejected is based that without
prior
permission
the
advertisement
inviting
application
for
short-term
appointment could not be issued. Neither
in the impugned order or in the counter
affidavit nor during arguments reference
to any provision of law where such a
requirement is mandatory has been
disclosed. The appointment to short term
vacancies, at the relevant time, was
governed
by
Second
Removal
of
Difficulties Order as explained by the Full
Bench decision of this Court in the case
of
Radha
Raizada
and
others
Vs.
Committee of Management [(1994) 3
U.P.L.B.E.C. 1551]. The only requirement
in law was for advertising the short-term
vacancies in at least two newspapers
having wide circulation. As already noted
above, the short-term vacancy was
advertised
in
two widely circulated
newspapers
on
26.12.1996
and
27.12.1996. Thus, the second ground
also cannot be sustained.

(C) Intermediate Education Act-1921Short
term
vacancy
in

## Text

1 All] Chhama Shankar PandeyV. D.I.O.S., Kanpur Nagar and others
117
"It is axiomatic that condonation of
delay is a matter of discretion of the court.
Section 5 of the Limitation act does not
say that such discretion can be exercised
only if the delay is within a certain limit.
Length of delay is no matter, acceptability
of the explanation is the only criterion.
Sometimes delay of the shortest range
may be uncondonable due to want of
acceptable explanation whereas in certain
other cases delay of very long range can
be condoned as the explanation thereof is
satisfactory. Once the court accepts the
explanation as sufficient it is the result of
positive
exercise
of
discretion
and
normally the superior court should not
disturb such finding, much less in
revisional jurisdiction, unless the exercise
of discretion was on wholly untenable
grounds or arbitrary or perverse. But it is
a different matter when the first court
refuses to condone the delay. In such
cases, the superior court would be free to
consider the cause shown for the delay
afresh and it is open to such superior court
to come to its own finding even
untrammeled by the conclusion of the
lower court."

6. In the present case also, the trial
court
in
the
aforesaid
facts
and
circumstances had condoned the delay in
filing the restoration application and had
exercised its discretion in favour of the
respondent plaintiff. There is nothing in
the
judgment
of
revisional
court
challenged in this petition, which would
indicate
that
the
trial
court
while
accepting
the
grounds,
had
acted
arbitrarily or in perverse manner. The
grounds for restoration and condonation
of delay as had been taken by the
respondent plaintiff and as discussed
above, could not be said to be wholly
untenable and thus, it is quite obvious that
the trial court has rightly allowed the
restoration
application
and
did
not
commit any factual or otherwise legal
mistake as to give justifiable occasion to
the revisional court to interfere in its
order. In the aforesaid view of the matter
the petition should be allowed and the
order of revisional court should be
quashed and the order of the trial court be
restored.

7. In the result, the petition is
allowed.

The
impugned
order
dated
20.10.2005 passed by the revisional court
is hereby quashed and the order of the
trial court dated 17.5.2004 is restored.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2006

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 19993 of 2002

Chhama Shankar Pandey
...Petitioner
Versus
District Inspector of schools and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Vinod Kumar Singh
Sri Manish Goyal

Counsel for the Respondents:
Sri S.D. Shukla
S.C.

(A) U.P. Secondary Education Service
Commission (Removal of Difficulties)
(Second
Order
1981-Clause-2
(3)-
Deemed approval-short terms vacancy in
L.T. Grade caused-due to promotion of
permanent
L.T.
Grade
Teachers
118 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
promotion on the post of Lecturer in
Hindi-duly
approved
on
1.2.96management advertised the short term
vacancy
of
L.T.
Grade
Teacher
on
26.12.96 in "Amar Ujala" and Pioneer"
on
27.12.96-21.1.07
management
submitted entire paper before D.I.O.S.
for approval-No Order passed-held-legal
fiction created-about deemed approval
of the said proposal.

Held: Para 6

A bare perusal of the said provision
would show that a mandate has been
issued to the District Inspector of
Schools to pass orders either approving
or
disapproving
the
proposed
appointment and in case the order is not
passed within seven days of the receipt
of the proposal, a legal fiction has been
created by which the said proposal
would be deemed approved. This ratio
has been accepted in several cases
including by a Division Bench of this
Court in the case of Ashika Prasad
Shukla Vs. District Inspector of Schools
and another [(1998) 3 U.P.L.B.E.C. 1722]
and subsequently followed in several
cases. Thus, the first ground given in the
impugned order cannot be sustained as
it was a case of deemed approval.

(B) Intermediate Education Act 1921Short
term
vacancy'
in
L.T.
grade
teacher-due
to
the
promotion
of
permanent incumbent on the post of
lecturer on Ad-hoc basis-duly approved
by the D.I.O.S.-appointment on short
term
vacancy
made
after
due
advertisement
in
two
news
paper,
having
vide
circulation-appointment
made without prior approval of D.I.O.S.-
whether such appointment is bad? Held
"No"-neither in impugned order nor in
counters affidavit, not during course of
argument
any
legal
requirement
disclosed-appointment governed by 2nd
removal
of
Difficulties
Order
1981-
perfectly valid.

Held: Para 7

The second ground on which the claim
has been rejected is based that without
prior
permission
the
advertisement
inviting
application
for
short-term
appointment could not be issued. Neither
in the impugned order or in the counter
affidavit nor during arguments reference
to any provision of law where such a
requirement is mandatory has been
disclosed. The appointment to short term
vacancies, at the relevant time, was
governed
by
Second
Removal
of
Difficulties Order as explained by the Full
Bench decision of this Court in the case
of
Radha
Raizada
and
others
Vs.
Committee of Management [(1994) 3
U.P.L.B.E.C. 1551]. The only requirement
in law was for advertising the short-term
vacancies in at least two newspapers
having wide circulation. As already noted
above, the short-term vacancy was
advertised
in
two widely circulated
newspapers
on
26.12.1996
and
27.12.1996. Thus, the second ground
also cannot be sustained.

(C) Intermediate Education Act-1921Short
term
vacancy
in
L.T.
grade
teacher-appointment made ignoring the
circular dated 9.6.95 issued by the
Director-held-circular
relate
only
for
substantial vacancies and not for short
term vacancy-moreover the circular has
no overriding effect upon the provisions
of 2nd Removal of Difficulties Order 1981.

Held: Para 10

The fifth ground taken in the impugned
order is that in view of circular dated
9.6.1995, no appointment could be made
by the Management and appointment
could only have been made by the Board.
A copy of the circular dated 9.6.1995 is
annexed alongwith the writ petition. The
said circular issued by the Directorate of
Education
stipulates
that
no
appointment should be made on any
vacancy by the Management as the
Board has been set up for selecting
candidates
and
recommending
appointment. This circular appears to
relate only to substantial vacancies. As
1 All] Chhama Shankar PandeyV. D.I.O.S., Kanpur Nagar and others
119
already
observed
hereinabove,
the
appointments to short-term vacancies
are governed by Second Removal of
Difficulties Order. This view is supported
by a Single Judge decision of this Court
in the case of Mukesh Kumar Vs. State of
U.P. (1996 A.W.C. 556). In any event, a
circular cannot over ride the provisions
of the Second Removal of Difficulties
Order. Therefore, this ground also cannot
be sustained.
Case law discussed:
1996 AWC 556
1994 (3) UPLBEC 1551
1998 (3) UPLBEC-1722

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard counsel for the parties.

2. This petition is directed against an
order dated 19.4.2002 rejecting the claim
of the petitioner for grant of financial
approval to his appointment as Assistant
Teacher.

3. Guru Narain Khatri Inter College,
Kanpur
Nagar,
Kanpur
is
a
duly
recognized and aided intermediate college
(here-in-after referred to as institution).
One Ram Asrey Awasthi permanent
Lecturer
in
Hindi
retired
causing
substantial vacancy which was filled up
by adhoc promotion of Ram Kripal
Mishra, a Assistant Teacher in the LT
Grade. The aforesaid adhoc promotion of
Ram Kripal Mishra was approved by the
District Inspector of Schools on 1.2.1996,
thus, creating a short term vacancy in the
L.T. Grade on the post of Assistant
Teacher. The Management advertised the
said adhoc vacancy in ''Amar Ujala' on
26.12.1996 and ''Pioneer' on 27.12.1996.
Several persons, including the petitioner,
who holds Master of Art Degree in Hindi
and is Bachelor of Education, also applied
and he was selected on the basis of quality
point whereafter the entire papers relating
to his selection were submitted to the
District Inspector of Schools for his
financial
approval
through
the
management's letter dated 21.1.1997.
However, no orders were passed by the
District Inspector of Schools, thus, an
appointment letter dated 3.2.1997 was
issued to the petitioner in pursuance of
which he joined on 4.2.1997 and started
teaching. As the District Inspector of
Schools did not pass any order and salary
was not being paid to the petitioner, he
preferred writ petition no. 39636 of 1997
which was finally disposed off vide order
dated 18.11.1997 with a direction to the
District Inspector of Schools to decide the
claim of the petitioner in accordance to
law by a speaking order. In pursuance
thereof, the present impugned order has
been passed.

4. The District Inspector of Schools
has refused grant of financial approval on
six grounds and each would be dealt with
in the subsequent paragraphs.

5. The first ground in the impugned
order is that the appointment was made
without prior approval. From the facts as
noted hereinabove, the approval of adhoc
promotion of Ram Kripal Mishra to the
Lecturer's grade necessarily created a
short term vacancy in the L.T. Grade.
After due advertisement, the petitioner
was selected and the papers were served
through
a
covering
letter
of
the
Management
dated
21.1.1997.
This
allegation in paragraph no. 12 of the writ
petition has not been denied in the counter
affidavit. It is apparent that in spite of
receiving the papers for grant of approval,
the District Inspector of Schools did not
pass any order. Clause 2 (3) (iii) of the
U.P.
Secondary
Education
Service
120 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Commission (Removal of Difficulties)
(Second) Order, 1981 provides as under:-

"The District Inspector of Schools
shall communicate his decision within
seven days of the date of particulars by
him failing which the Inspector will be
deemed to have given his approval."

6. A bare perusal of the said
provision would show that a mandate has
been issued to the District Inspector of
Schools to pass orders either approving or
disapproving the proposed appointment
and in case the order is not passed within
seven days of the receipt of the proposal,
a legal fiction has been created by which
the said proposal would be deemed
approved. This ratio has been accepted in
several cases including by a Division
Bench of this Court in the case of Ashika
Prasad Shukla Vs. District Inspector of
Schools
and
another
[(1998)
3
U.P.L.B.E.C. 1722] and subsequently
followed in several cases. Thus, the first
ground given in the impugned order
cannot be sustained as it was a case of
deemed approval.

7. The second ground on which the
claim has been rejected is based that
without
prior
permission
the
advertisement inviting application for
short-term appointment could not be
issued. Neither in the impugned order or
in the counter affidavit nor during
arguments reference to any provision of
law
where
such
a
requirement
is
mandatory has been disclosed. The
appointment to short term vacancies, at
the relevant time, was governed by
Second Removal of Difficulties Order as
explained by the Full Bench decision of
this Court in the case of Radha Raizada
and
others
Vs.
Committee
of
Management [(1994) 3 U.P.L.B.E.C.
1551]. The only requirement in law was
for advertising the short-term vacancies in
at least two newspapers having wide
circulation. As already noted above, the
short-term vacancy was advertised in two
widely
circulated
newspapers
on
26.12.1996 and 27.12.1996. Thus, the
second ground also cannot be sustained.

8. The third ground given in the
impugned order is that before filling the
vacancy, the Management ought to have
obtained financial approval of the post. It
is not the case of the respondents that
Ram Kripal Mishra, the incumbent who
was working as Assistant Teacher in the
L.T. Grade, was not drawing his salary
after financial approval. It is also not the
case of the respondents that at any time
financial approval to that post was
withdrawn by the respondents either
before or after the adhoc promotion of Sri
Mishra. Once the financial approval had
been granted for a post, there is no
requirement of law to obtain further
approval
while
making
short-term
appointment on that post except when the
post had been abolished, but that is not
the case here. Learned Standing Counsel
has failed to point out any provision of
law by which such a requirement has been
placed upon the Management. Therefore,
the third ground also cannot be sustained.

9. The next ground on which the
impugned order has been passed is that in
accordance to the actual strength of the
students only 10 sections were being
operated and thus, according to the
applicable
ratio,
13
teachers
were
necessary though 27 teachers were
working and thus there was no vacancy to
be filled up. The case set up by the
Management before the District Inspector
1 All] Chhama Shankar PandeyV. D.I.O.S., Kanpur Nagar and others
121
of Schools was that there were 21
sanctioned sections in the institution and
this fact has not been denied either in the
counter affidavit or during argument.
Further, even number of students has not
been disclosed in the impugned order
which goaded the Inspector to hold that
only 10 sections were being operated.
Even in the counter affidavit the strength
of student has not been disclosed and the
case set up in the writ petition especially
in paragraph nos. 27 and 28 that in fact 21
sections
were
functioning
in
the
institution at the relevant time has not
been specifically denied in the counter
affidavit. Further, Para 293 (1) of the U.P.
Education
Code
prohibits
the
Management to add or close down any
existing
sanctioned
section
in
the
institution without previous approval of
the Inspector. Assuming, for the sake of
argument, that at the relevant time there
were lesser number of students and thus
there may not be any necessity to fill up
any vacancy, but that cannot be a ground
to hold that there was, in fact, no vacancy.
Thus,
this
ground
also
cannot
be
sustained.

10. The fifth ground taken in the
impugned order is that in view of circular
dated 9.6.1995, no appointment could be
made
by
the
Management
and
appointment could only have been made
by the Board. A copy of the circular dated
9.6.1995 is annexed alongwith the writ
petition. The said circular issued by the
Directorate of Education stipulates that no
appointment should be made on any
vacancy by the Management as the Board
has been set up for selecting candidates
and recommending appointment. This
circular
appears
to
relate
only
to
substantial
vacancies.
As
already
observed hereinabove, the appointments
to short-term vacancies are governed by
Second Removal of Difficulties Order.
This view is supported by a Single Judge
decision of this Court in the case of
Mukesh Kumar Vs. State of U.P. (1996
A.W.C. 556). In any event, a circular
cannot over ride the provisions of the
Second Removal of Difficulties Order.
Therefore, this ground also cannot be
sustained.

11. The last pillar on which the
impugned order stands is only to be stated
to be rejected. The District Inspector of
Schools has held that since section 18 of
the Commission Act and the Second
Removal of Difficulties Order having
been repealed by notification dated
25.1.1999, no financial approval could be
granted. As already observed while noting
the facts, the short-term vacancies arose
on 1.2.1996 and the Management served
the entire papers for obtaining financial
approval on 21.1.1997 and as such the
subsequent repeal would be irrelevant as
by then the rights of the petitioner stood
crystallized
and
appointment
stood
approved in view of the deeming clause
of the Second Removal of Difficulties
Order.

12. For the reasons given above, this
petition succeeds and is allowed and the
impugned order 19.4.2002 is hereby
quashed. The petitioner shall be entitled
to his salary alongwith arrears payable to
him within two months from the date of
submission of a certified copy of this
order. No order as to costs. Petition
Allowed.
---------
122 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No.4250 of 1999

Chemical Workers Union
...Petitioner
Versus
Labour Court at Ghaziabad and another

 ...Respondents

Counsel for the Petitioner:
Sri K.P. Agrawal
Km. Suman Sirohi

Counsel for the Respondents:
Sri Satish Chaturvedi
S.C.

Constitution of India-Article-226-Power
of labor court-confined with dispute as
referred
by
the
government
under
section 4-K of Industrial dispute Act.

Held: Para 9

Admittedly from the reference it is clear
that there was no dispute between the
petitioners and the respondents, which
was referred by the State Government
and in view of the Apex Court judgment.
It is well settled that the Labour Court
has to act according to the reference and
cannot go beyond it. In such a way I am
of opinion that the finding recorded by
the Labour Court is correct and it needs
no interference by this Court under
Article 226 of the Constitution of India.
Case law discussed:
2005 SCC (L&S) 372
AIR 1959-1111

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

1. This writ petition has been filed
for
setting
aside
the
award
dated
22.12.1995 published on 27.9.1997 in
Adjudication Case No.253 of 1987 and
further prayer is for commanding the
Labour Court to treat the termination of
the services of the 12 workmen w.e.f.
12.3.1987 and to rehear the matter of
dispute and decide the same on the basis
of the dismissal having taken place on
12.3.1987. The writ petition has been
filed on behalf of one Sri Virendra Garg,
Member, Executive Committee of the
Chemical Works Union, 231, Lal Jhanda
Bhavan, Ambedkar Road, Ghaziabad
against the award dated 22.12.1995 by
which the claim of the workmen has not
been accepted by the Labour Court.

2. The facts arising out of the writ
petition are that the workmen who are
working under respondent no.2, there was
some dispute and they went on strike and
then they have stated that they wanted to
join from 12.11.1987 but the employer
has not permitted them to join the duties
as such the dispute arose. The matter was
referred to the State Government and the
State Government has referred the dispute
to the Labour Court for adjudication. The
reference is being reproduced below:

sD;k lsok;kstdksa Onkjk layXu ifjsf'kIV esa mfYyf[kr
vius 12 Jfesdksa dks fnukad 12-3-87 ls dk;Z ls IkzFkd
ofpr fd;k tkuk mfpr rFkk vFkok oW/kkfusd gS ;fn ugha
rks lEcf?kr Jfed D;k ykHk ikus dk vf/ksdkjh gS rFkk
vU; fdu fooj.kksa lfgr\

3. The Labour Court has rejected the
claim of the petitioner only on the ground
that the date which has been mentioned
by the petitioner as 12.3.1987, there was
no
termination
order
and
as
the
respondent has come with a case that the
services of these workmen have been
terminated on 9.4.1987 and there is no
reference regarding consideration of the