# Dinesh Kumar v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 353
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-22
- **Case number:** Civil Misc. Review Petition No. 30419 of 2005
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-v-state-of-u-p-and-others-40451
- **Pages:** 9

## Headnote

Sri V.B. Singh
Sri T.P. Singh
Sri A.P. Tiwari
Sri V.B. Upadhyay
Sri R.P. Gupta
Sri Vivek Saran
S.C.

Code of Civil Procedure- 0.47 r. Review
Petition-Petition decided on merit after
hearing the senior counsel-S.L.P. also
dismissed-Review
before
High
Court
through
another
counsel-without
no
objection
certificate
from
earlier
counsel-held-not maintainable-effort by
placing same new averments, evidence
to change the earlier view amounts to re
hearing- can not be scope of review.

Held- Para 14

Effort by placing same evidence, same
document
and
same
averments
for
taking different view than taken at
earlier stage, can never be the scope of
review petition otherwise, there may not
be any end of the matter as the loosing
party will always try to get review
petition filed and that too, may be some
more eminent advocate according to his
expectations
for
the
purpose
of
vehement re arguments in the matter in
the hope of getting some changed
opinion favouring him. This cannot be
the spirit of the provision as contained
under Order 47 Rule 1 C.P.C.
Case law discussed:
JT 1997(i) SC 486
JT 1997 (i) SC 486
2000 (6) SCC-360
1995 (1) SCC-170
AIR 1960 -SC-137

## Text

1 All] Dinesh Kumar V. State of U.P. and others
353
whom an order is proposed to be passed
must necessarily be read, so as to make
the
same
inconformity
with
the
requirement of principle of natural justice.
Clause
7
does
not
exclude
the
applicability of principle of natural
justice. The contention raised on behalf of
the petitioner that no notice/opportunity
of hearing is required to be afforded to a
person, whose appointment of Fair Price
Shop Agent is to be cancelled merely
because a resolution by the Gaon Sabha
has been passed on certain irregularities,
cannot be legally accepted.

17. In view of the aforesaid the
order passed by the Commissioner dated
3rd March, 2004 calls for no interference
under Article 226 of the Constitution of
India. The writ petition is devoid of merits
and is accordingly dismissed with no
order as to cost. Interim order, if any,
stands discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.3.2005

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Review Petition No. 30419 of 2005
In
Civil Misc. Writ Petition No. 4450 of 1986

Mohan Lal Bagla

...Petitioner
Versus
Board of Revenue, U.P., Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri S.C. Tandon
Sri P.K. Jain
Sri R.V. Jain
Sri R.V. Gupta
Sri R.K. Jain
Sri B.D. Mandhyan

Counsel for the Respondents:
Sri V.B. Singh
Sri T.P. Singh
Sri A.P. Tiwari
Sri V.B. Upadhyay
Sri R.P. Gupta
Sri Vivek Saran
S.C.

Code of Civil Procedure- 0.47 r. Review
Petition-Petition decided on merit after
hearing the senior counsel-S.L.P. also
dismissed-Review
before
High
Court
through
another
counsel-without
no
objection
certificate
from
earlier
counsel-held-not maintainable-effort by
placing same new averments, evidence
to change the earlier view amounts to re
hearing- can not be scope of review.

Held- Para 14

Effort by placing same evidence, same
document
and
same
averments
for
taking different view than taken at
earlier stage, can never be the scope of
review petition otherwise, there may not
be any end of the matter as the loosing
party will always try to get review
petition filed and that too, may be some
more eminent advocate according to his
expectations
for
the
purpose
of
vehement re arguments in the matter in
the hope of getting some changed
opinion favouring him. This cannot be
the spirit of the provision as contained
under Order 47 Rule 1 C.P.C.
Case law discussed:
JT 1997(i) SC 486
JT 1997 (i) SC 486
2000 (6) SCC-360
1995 (1) SCC-170
AIR 1960 -SC-137

(Delivered by Hon'ble S.K. Singh, J.)
354 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
1. These are two applications filed
by
Narendra
Kumar
and
others,
respondents in the writ petition.

2. By application no. 30451 of 2005,
review of the judgment of this Court
dated 11.8.2004 has been sought and by
Application no. 29291 of 2005, six
months time has been prayed for vacating
the properties in question.

3. On the close of arguments,
learned counsel who argued the matter
from both sides, submitted that they may
give brief note which may facilitate this
Court in passing the order and thus, brief
note/submission given has not been made
part of record and that has been just
perused. A brief note given by Sri Singh,
learned counsel in support of review
petition is clearly reiteration of various
facts and details in the light of evidence
which is the part of counter affidavit filed
in the writ petitions and thus they are
reiteration of the facts and details on
which reappraisal of re hearing appears to
be an effort which for the reasons
indicated in this order and within limited
scope of consideration may not be
permissible.

4. Issue in the writ petition was
about validity and propriety of the auction
sale of three houses i.e. House no. 16/20,
16/20-B and 16/20-C situated in Civil
Lines, Kanpur which were auctioned for
small dues of the sales tax department for
a total amount of Rs.1,61,000/-. After
lengthy arguments from both sides, writ
petition
was
allowed
and
auction
proceedings
were
quashed
and
the
respondent-
auction
purchaser
was
directed to hand over possession of the
properties in question within a period of
six months to the petitioner and bid
amount alongwith interest was directed to
be returned to the auction-purchaser,
within a period of six weeks from the date
of moving application as indicated in the
judgment. The judgment of this Court was
challenged
by
respondent-auction
purchaser by filing Special Leave Petition
before the Apex Court through S.L.P. No.
27062-27063
of
2004
which
were
dismissed by the Apex Court by judgment
dated 24.1.2005. It is thereafter, these
applications have been filed by the
respondents in the writ petition.

5. Sri V.B. Singh, learned Senior
Advocate assisted by Sri Vivek Saran,
learned advocate has been heard in
support of these applications and Sri Ravi
Kiran Jain and Sri B.D. Mandhyan,
learned Senior Advocate assisted by their
colleagues have been heard in opposition
thereof.

6. At the start of arguments, besides
other preliminary objection that after
dismissal of S.L.P. by the Apex Court,
these applications are not maintainable, it
was also vehemently pressed by Sri B.D.
Mandhyan, learned Senior Advocate that
filing of review petition by another
advocate who was not counsel at the time
of hearing of writ petition, is neither
permissible in law nor otherwise it can be
said to be proper. Submission is that new
counsel cannot be in a position by
keeping in mind that in fact what was
argued before writ court and what
transpired during course of argument and
thus submission is that review application
is to be rejected on this short ground.
After dismissal of S.L.P. by Apex Court,
any change in the judgment of this Court
by review petition was also objected.
1 All] Mohan Lal Bagla V. Board of Revenue, U.P., Lucknow and others
355
7. Sri Singh, learned senior advocate
who was not a counsel in the writ petition,
in response to the aforesaid objection
submits that although, he was not counsel
when writ petition was heard but on the
basis of materials as exists and in the light
of finding so given by writ court, he can
file and argue review petition and
otherwise review petition has been filed
on valid grounds.

8. In respect to the question that
whether a new counsel can file and argue
review petition, learned advocates from
both sides placed reliance on the decision
given by the Apex Court in the case of
Tamil Nadu Electricity Board vs. N.
Raj Reddiar JT 1997 (1) SC 486.

In view of aforesaid rival contention,
this Court has examined the matter in
issue.

9. So far the propriety of filing
review petition and arguments on it by
new counsel who never appeared in
earlier proceedings and hearing of case,
the Apex Court has already decided the
issue in the case of Tamil Nadu
Electricity Board vs. N. Raju Reddiar
JT 1997 (1) SC 486. The observation of
the Apex Court in this regard as quoted in
the Tamil Nadu Electricity Board (supra)
is quoted.

"The record of appeal indicates that
Sri Sudarsh Menon was the Advocate on
Record when appeal was heard and
decided don merits. The Review petition
has been filed by Sri Prabir Chowdhury
who was neither an arguing counsel when
the appeal was heard nor was he present
at the time of arguments. It is unknown on
what basis he has written the grounds in
the Review Petition as it is a rehearing of
an appeal against our order. He did not
confine to the scope of review. It would
be not in the interest of the profession to
permit such practice. That apart, he has
not obtained "No objection certificate'
from the Advocate-on-Record in the
appeal, in spite of the fact that Registry
had informed him of the requirement for
doing so. Filling of the 'No objection
certificate' would be the basis for him to
come on record. Otherwise, the Advocateon-Record is answerable to the Court. The
failure to obtain the 'No objection
certificate' from the erstwhile counsel has
disentitled him to file the Review Petition.
Even otherwise, the Review Petition has
no merits. It is an attempt to reargue the
matter on merits."

10. Otherwise also for a new counsel
it may not be proper to move for the
reasons as indicated below. In respect to
question involved and to the argument
which were advanced by learned counsel
appearing for the party and in respect to
queries which were made by the Court
whether were satisfactory replied or not,
it can not be possibly in the knowledge of
another counsel who was not appearing at
the time of first hearing of case. Take a
case that a question was put to a counsel
but he was not in a position to answer it, a
particular document in support of claim
was asked to be placed but learned
advocate is not in a position to show and
refer to the relevant document, and on a
particular aspect, he might have virtually
surrendered for the reason that he
probably
had
no
valid
reply
and
thereafter, judgment comes, dealing with
all the aspects. Now review petition is
filed on the ground that something was
not considered which was argued or there
is wrong observation about certain facts
or on a like ground then it has to be said
356 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
that a new counsel is debarred from
raising all these objections or objection of
a like nature. The review petition appears
to have been filed by new counsel mainly
on the ground that some letters written by
Mohan Lal Bagla to the Deputy Collector,
sales Tax and to the Commissioner have
not been taken note and bid sheet has not
been considered by this Court in respect
to which suffice it to say that it cannot be
said by Sri Singh, who is new counsel for
the purpose of arguing review petition
that whether the aforesaid letters were
referred in the argument and they were
relied by the then counsel and whether
any effort was made by learned advocate
to lay emphasis on those documents as
they have any relevance in the matter in
issue and thus the question touching with
the proceedings of the Court and
discussion during course of argument by a
new counsel who was neither arguing
counsel nor assisting counsel at the initial
stage, cannot be permitted. To argue same
details as a question of fact in second
inning f the matter cannot be permitted. It
is under very exceptional circumstances
where it can b4e demonstrated that on the
finding and reasoning so given, there is
error apparent on the face of record which
can be termed to be a mistake within the
meaning of error apparent as that can be
discovered without any argument, it may
be filed by a new advocate but that too
after obtaining no objection from earlier
counsel. If a case is to be argued on the
same set of facts by change of counsel, at
several occasion, it may be possible that
with imminence of the counsel, a new
dimension to the argument may come on
same set of facts. Skill in the argument
and advocacy is to vary always from
counsel to counsel. Although earlier two
senior advocates of this Court namely Sri
R.N. Singh and Sri V.B. Upadhyaya
argued the matters on behalf of applicant
at length with full vehemence at their
command but now Sri V.B. Singh,
learned senior advocate wants to argue the
matter in his own way by placing the
same record and same pleadings. On the
facts of present case, this Court is of the
view that filing of review petition on the
ground so taken in the application cannot
be said to be just and proper so as to
entitle Sri Saran, learned advocate and Sri
Singh learned senior advocate to file and
argue this review petition.

11. Be as it may, as the matter has
come before this Court by way of this
review petition and there is an issue
between the parties that whether after
dismissal of S.L.P. by the Apex Court
against the judgment of this Court, this
review petition can be entertained or not,
Court feels inclined to decide this issue
also. About the right of party to file a
review petition, this Court is just to refer
the law as the Apex Court has already
declared in the decision given in the case
of Kunhayammed v. State of Kerala
(2000) 6 SCC 360. The observation of
Apex
Court
in
the
case
of
Kunhayammed (supra) as made in para
40 will be useful to be quoted here as
under:-

"A petition seeking grant of special
leave to appeal may be rejected for
several reasons. For example, it may be
rejected (i) as barred by time, or (ii) being
defective presentation (iii) the petitioner
having no locus standi to file the
petitioner, (iv) the conduct of petitioner
disentitling him to any indulgence by the
Court, (v) the question raised by the
petitioner for consideration by this Court
being not fit consideration or deserving
being deal with by the Apex Court of the
1 All] Mohan Lal Bagla V. Board of Revenue, U.P., Lucknow and others
357
country and so on. The expression often
employed by this Court while disposing
of
such
petitions
are-'heard
and
dismissed', 'dismissed', 'dismissed as
barred by time' and so on. May be that at
the admission stage itself the opposite
party appears on caveat or on notice and
offers contest to the maintainability of the
petitioner The Court may apply its mind
to the merit worthiness of the petitioner's
prayer seeking leave to file an appeal and
having formed an opinion may say '
dismissed on merits'. Such an order may
be passed even ex parte, that is, in the
absence of the opposite party. In any case,
the dismissal would remain a dismissal by
a non-speaking order where no reasons
have been assigned and no law has been
declared by the Supreme Court. The
dismissal is not of the appeal but of the
special leave petition. Even if the merits
have been gone into, they are the merits
of the special leave petition only. In our
opinion neither doctrine of merger nor
Article 141 of the Constitution is attracted
to such an order. Grounds entitling
exercise of review jurisdiction conferred
by order 47 Rule 1 CPC or any other
statutory provision or allowing review of
an order passed in exercise of writ or
supervisory jurisdiction of the High Court
(where also the principles underlying or
emerging from Order 47 Rule 1 CPC act
as guidelines are not necessarily the same
on which this Court exercises discretion
to grant or not to grant special leave to
appeal while disposing of a petition for
the purpose. Mere rejection of a special
leave petition does not take away the
jurisdiction of the Court, tribunal or
forum whose order forms the subject
matter of petition for special leave to
review its own order if grounds for
exercise of review jurisdiction are shown
to exist. Where the order rejecting an SLP
is a speaking order, that is where reasons
have been assigned by this Court for
rejecting the petition for special leave and
are stated in the order still the order
remains the one rejecting prayer for the
grant of leave to appeal. The petitioner
has been turned away at the threshold
without having been allowed to enter in
the appellate jurisdiction of this Court.
Here also the doctrine of merger would
not apply. But the law stated or declared
by this Court in its order shall attract
applicability of Article 141 of the
Constitution. The reasons assigned by this
Court
in
its
order
expressing
its
adjudication (expressly or by necessary
implication) on point of fact or law shall
take away the jurisdiction of any other
court, tribunal or authority to express any
opinion in conflict with or in departure
from the view taken by this Court because
permitting to do so would be subversive
of judicial discipline and an affront to the
order of this Court. However, this would
be so not by reference to the doctrine of
merger."

12. At the same time, observation of
the Apex Court in the judgment referred
above as made in paragraphs 33 and 34
will also be useful to be quoted here as
under:

"Doctrine of merger and review

Para 33: This question directly arises in
the case before us.

Para 34. The docrine of merger and the
right of review are concepts which are
closely interlinked. If the judgment of the
High Court has come up to this Court by
way of special leave, and special leave is
granted and the appeal is disposed of with
or without reasons, by affirmance or
358 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
otherwise, the judgment of the High Court
merges with that of this Court. In that
event, it is not possible to move the High
Court by review because the judgment of
the High Court has merged with the
judgment of this Court. But where the
special leave petition is dismissed- there
being no merger, the aggrieved party is
not deprived of any statutory right of
review, if it was available and he can
pursue. It may be that the review court
may interfere, or it may not interfere
depending upon the law and principles
applicable to interference in the review.
But the High Court if it exercises a power
of review or deals with a review
application on merits-in a case where the
High Court's order had not merged with
an order passed by this Court after grant
of special leave- the High Court could
not, in law, be said to be wrong in
exercising statutory jurisdiction or power
vested in it."

13. At this Court is informed that the
S.L.P. was dismissed before grant of
leave, doctrine of merger may not be
applied and review petition if it is
otherwise maintainable can be said to be
maintainable if grounds are covered
within the scope of order 47 Rule 1 Code
of Civil Procedure. At this stage, it will be
useful to quote order 47 Rule 1 C.P.C.
which reads as under:

"1.
Application
for
review
of
judgment -(1) Any person considering
himself aggrieved-

(a)
by a decree or order from which
an appeal is allowed, but from which no
appeal has been preferred.
(b)
by a decree or order from which
no appeal is allowed .
(c)
by a decision on a reference
from a Court of Small Causes.

 and who from the discovery of new and
important matter or evidence, which ,
after the exercise of due diligence, was
not within his knowledge or could not be
produced by him at the time when the
decree was passed or order made, or on
account of some mistake or error apparent
on the face of the record, or for any other
sufficient reason, desires to obtain a
review of the decree passed or order made
against him, may apply for a review of
judgment to the court which passed the
decree or made the order."

14. A reading of the aforesaid makes
it clear that review petition can be filed if
from the discovery of new materials
which after exercise of due diligence was
not within his knowledge or could not be
produced by him at the time when the
decree was passed or order made or on
account of some mistake or error apparent
on the face of record, or for any other
sufficient reason. Here is not the case
where review petition has been filed by
discovery of new and important matter or
evidence which after exercise of due
diligence was not within the knowledge or
party or could not be produced at the time
when the judgment was given. Here is the
case where the applicant wants review of
the order on the ground that on the facts
and evidence, conclusion arrived at by
this Court is wrong. Exactly on the same
ground that on the facts and evidence
which exists on record, conclusion arrived
at by this Court is wrong, applicant
approached the Apex Court but S.L.P.
was dismissed. Permission to entertain the
review petition and permission to argue
on that cannot mean that the Court is to
provide re-hearing in the matter just like
1 All] Mohan Lal Bagla V. Board of Revenue, U.P., Lucknow and others
359
the hearing at the first instance. Effort by
placing same evidence, same document
and same averments for taking different
view than taken at earlier stage, can never
be the scope of review petition otherwise,
there may not be any end of the matter as
the loosing party will always try to get
review petition filed and that too, may be
some more eminent advocate according to
his expectations for the purpose of
vehement re arguments in the matter in
the hope of getting some changed opinion
favouring him. This cannot be the spirit of
the provision as contained under Order 47
Rule 1 C.P.C.

15. The scope of review petition has
already been explained by the Apex Court
besides this Court in several decision. In
the decision given by Apex Court in the
case of Meera Bhanja (Smt.) Vs.
Nirmala Kumar Chaudhury (Smt.)
reported in (1995) 1 SCC 170, scope of
review
has
been
explained.
The
observation of this Court as made in para
8 of the judgment of the Apex Court can
be quoted here.

"It is well settled that the review
proceedings are not by way of an appeal
and have to be strictly confined to the
scope and ambit of Order 47, Rule 1 CPC.
In connection with the limitation of the
powers of the Court under Order 47, Rule
1 while dealing with similar jurisdiction
available to the High Court while seeking
review the orders under Article 226 of the
Constitution of India, this Court, in the
case of Aribam Tuleshwar Sharma Vs.
Aribam Pishak Sharma, speaking through
Chinnappa Reddy, J., has made the
following pertinent observations (SCC p.
390, para 3)

"It is true as observed by this Court
in Shivdeo Singh Vs. State of Punjab,
there is nothing in Article 226 of the
Constitution of preclude the High Court
from exercising the power of review
which inheres in every court of plenary
jurisdiction to prevent miscarriage of
justice or to correct grave and palpable
errors committed by it. But, there are
definitive limits to the exercise of the
power of review. The power of review
may be exercised on the discovery of new
and important matter or evidence which,
after the exercise of due diligence was not
within the knowledge of the person
seeking the review or could not be
produced by him at the time when the
order was made, it may be exercised
where some mistake or error apparent on
the face of the record is found, that may
also be exercised on any analogous
ground. But it may not be exercised on
the
ground
that
the
decision
was
erroneous on merits. That would be the
province of a Court of appeal. A power of
review is not to be confused with
appellate power which may enable an
appellate court to correct all manner of
errors committed by the subordinate
court."

16. In respect to error apparent in
the judgment of Apex Court in the case of
Satyanarain Laxminarain Hegde vs.
Mallikarun
Bhavanappa
Tirumale,
reported in AIR 1960 SC 137, following
observation was made:

"An error which has to be established
by a long drawn process of reasoning on
points where there may conceivably be
two opinions can hardly be said to be an
error apparent on the face of the record.
Where an alleged error is far from selfevident and if it can be established, it has
360 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
to be established, by lengthy and
complicated arguments, such an error
cannot be cured by a writ of certiorari
according to the rule governing the
powers of the superior court to issue such
a writ."

17. Therefore, it is clear that error
apparent on the face of record, has to be
such an error which must strike on mere
looking at the record and would not
require any long drawn process of
reasoning on the point whether they may
conceivably two opinion. The power of
review is not to be confused with the
power of appeal. It cannot exercise on the
ground that decision is erroneous on
merits as that would be in the province of
Court of appeal who can be in a position
to correct the errors committed by
subordinate courts.

18. On the facts, there is no dispute
that when the writ petition was argued
before this Court, lengthy arguments and
hearing took place on number of dates
and both sides had ample opportunity and
time to meet to each others contention,
pleadings and evidence as existed on
record. On behalf of petitioners, two
learned senior advocates appeared and on
behalf of respondents who are applicants
in these review petition, Sri R.N. Singh,
learned senior advocate and Sri V.B.
Upadhdyaya, learned senior advocate
appeared and argued the matter at full
length, upon which considered judgment
by this Court has come against which
S.L.P. has also been dismissed by the
Apex Court. Entire effort by these review
applications is to get re-hearing in the
matter, in the light of same set of
evidence, same pleadings which cannot be
permitted.

In view of aforesaid, this Court is of
the firm view that r4eview petitions by
the applicants merits dismissal.

19. At this stage, other application
filed by the applicants for grant of six
months further time to vacate the
properties in question is also to be
disposed of. This Court while allowing
writ petitions on 11.8.2004 granted six
months time to the applicants to hand
over the possession of the properties in
question. The time was not so short that
the applicant can be said to be able to
manage for their own place and to remove
the goods. At the same time, when the
matter was heard by the Apex Court and it
was decided if the applicants were to seek
any extension of time for any good
reason, it was open for them to have
requested the Apex Court for grant of
some time in this respect. This Court is
not aware that whether time was prayed
and refused by the Apex Court or it was
not prayed, but in any view of the matter,
as this Court has already granted six
months time for vacating the premises in
question, it appears that no ground has
been made out for extension of time. In
the application which has been filed by
the applicants in this respect, no reason
whatsoever has been given for extension
of time. Nothing has been said that how
within a period of six months, applicants
were not able to do the needful. The only
averment in the application is that the
applicants tried to find a building in the
locality so that they may shift but to the
misfortune, no suitable building could be
found. No detail of making efforts has
been given, therefore, the sole averment
in this respect is apparently for the
purposes of this application. Thus for the
reasons indicated above, extension of
time, as prayed can not to be allowed.
1 All] Mohan Lal Bagla V. Board of Revenue, U.P., Lucknow and others
361

20. For the reasons indicated and the
analysis as made above, both applications
filed by the applicants i.e. is for review
and extension of time are hereby rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.3.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 37178 of 2002

Abhey Pal Singh

...Petitioner
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Sri B.D. Mandhyan
Sri A.P.S. Raghav

Counsel for the Respondents:
Sri S.K. Misra
S.C.

Payment of Salaries of the Teacher and
other employees Act 1971-read with U.P.
Secondary
Education
Service
Commission
Act
1983-2
(hh)-word-
'vacancy'-caused as a result of death,
retirement,
resignation,
termination,
dismissal, creation of new post- on
appointment/promotion
of
the
incumbent on higher post-short term
vacancy-petitioner
appointed
after
fallowing the procedure occurred in the
year 1996-due to promotion of Mr. X- Y
challenged the seniority of 'x'- which has
been decided only on 6.10.99 holding Mr.
'y' to be senior than 'x'-accordingly the
management
passed
resolution
on
27.2.2000-DIOS held rightly, refused the
salary-petitioner can not get salary from
Government
Fund-However
the
management is responsible from his own
fund.

Held-Para 10

The petitioner was appointed in the year
1996.
In
my
opinion,
no
vacancy
occurred in the year 1996 and, therefore,
the petitioner could not have been
appointed on a short term vacancy in the
year 1996. The vacancy, if any, occurred
only when Sukhbir Singh was promoted
on 27.2.2000, on the basis of which a
short term vacancy arose on the post of
assistant teacher. Since the vacancy
arose
only
in
the
year
2000,
the
procedure
contemplated
under
U.P.
Secondary
Education
Services
Commission (Removal of Difficulties)
(Second) Order, 1981 and the directions
contained by the Full Bench decision in
the case of Radha Raizada reported in
1994 Vol. 3 UPLBEC-1551 was required
to be followed by the committee of
management.
Case law discussed:
2004 AWC-I-2070

(Delivered by Hon'ble Tarun Agarwala, J.)

1. In an educational institution
known
as
Swami
Purnanand
Inter
College, Chirodi, Bulandshar one Karan
Singh, a lecturer retired on 30.6.1991 and
after his retirement one Raghuraj was
promoted on an adhoc basis on the post of
a lecturer. Consequently, the post of an
Assistant Teacher fell vacant and this
vacancy, being a short term vacancy,
could not be filled up by way of
promotion. The said vacancy was duly
notified to the District Inspector of
Schools, Bulandhshar on 6.5.1005. It
further transpires that on 24.8.1996 an
advertisement was also made in the
newspapers, which had a wide circulation
and a selection committee met on
3.8.1996 in which the petitioner's name
was recommended and subsequently, the