# Dineshe Chandra Tripathi v. State of U.P. & Ors. 128 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 11 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-23
- **Case number:** Service Single No. 5511 of 2015
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dineshe-chandra-tripathi-v-state-of-u-p-ors-128-indian-law-reports-allahabad-45373
- **Pages:** 3

## Headnote

A. Service Law -- U.P. Recognized Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978: Rule 7 - Challenge
to Appointment/Selection - A person who
applies for appointment on a post in
response to an advertisement is precluded
from challenging the selection on the
ground of defect in the advertisement.
(Para 7, 9)

B. In case a candidate after having applied
for
appointment
for
a
post
later
voluntarily chooses not to appear in the
interview i.e. the selection process has no
locus to challenge the appointments of
selected candidates. (Para 7, 10)

Writ petition dismissed. (E-4)

## Text

11 All. Dineshe Chandra Tripathi Vs. State of U.P. & Ors.
127
cannot be denied benefits which have
already been extended to the appointees of
a later recruitment exercise. The protection
in the form of benefit under old pension
rules has been extended only to protect
against an arbitrary act. This judgment also
does not lay down any proposition that
delay in concluding selection would ipso
facto result in applicability of old pension
scheme.

28. The petitioners have not been able
to demonstrate that they have been
arbitrarily discriminated or have been
denied appointment prior to 31st March,
2005. For any delay in conclusion of
selection the previous pension rules would
not get attracted in view of the express
stipulation in the statutory rule itself. Date
of entry into service would otherwise
determine the applicability of pension rules
by virtue of the U.P. Retirement Benefits
(Amendment) Rules, 2005, notified on
7.4.2005.
Petitioners
have
otherwise
accepted the terms of new pension scheme
ever since their appointment in the year
2006. No protest of any kind was made
during the last fourteen years. Petitioners
therefore, have acquiesced to the new
pension scheme and they cannot be
permitted to resile from its applicability
particularly when no challenge is laid to the
statutory rule itself.

29. It is otherwise settled that no
sympathy can be claimed to override
express
provisions
contained
in
the
applicable pension rules. In a matter arising
out of claim of pension the Supreme Court
in Sudhir Kumar Consul Vs. Allahabad
Bank, (2011) 3 SCC 486, observed as
under:-

"31. We have sympathies for the
appellant but, in a society governed by
Rule of law, sympathies cannot override the
Rules and Regulations. We may recall the
observations made by this Court while
considering the issue of compassionate
appointment in public service.

32. In Life Insurance Corporation
of India v. Asha Ramachhandra Ambekar
and Anr. (1994) 2 SCC 718, wherein the
Court observed:

"The
High
Courts
and
the
Administrative Tribunals cannot confer
benediction
impelled
by
sympathetic
consideration.... Yielding to instinct will
tend to ignore the cold logic of law. It
should be remembered that "law is the
embodiment
of
all
wisdom".
Justice
according to law is a principle as old as the
hills. The Courts are to administer law as
they find it, however, inconvenient it may
be."

30. In view of the discussions aforesaid,
this Court is of the considered opinion that
any delay in selection for appointment, ipso
facto, cannot be a ground to extend benefit of
old pension scheme notwithstanding the clear
stipulation in the pension rule specifying date
of entry in service to be determinative of the
pension scheme.

31. Writ petition lacks merit and is
dismissed.
----------
(2020)11ILR A127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.11.2020

BEFORE

THE HON'BLE MANISH KUMAR, J.

Service Single No. 5511 of 2015

Dineshe Chandra Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
128 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Devki
Nandan
Srivatava,
Abhishek
Srivastava

Counsel for the Respondents:
C.S.C., Jyotika Sikka

A. Service Law -- U.P. Recognized Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978: Rule 7 - Challenge
to Appointment/Selection - A person who
applies for appointment on a post in
response to an advertisement is precluded
from challenging the selection on the
ground of defect in the advertisement.
(Para 7, 9)

B. In case a candidate after having applied
for
appointment
for
a
post
later
voluntarily chooses not to appear in the
interview i.e. the selection process has no
locus to challenge the appointments of
selected candidates. (Para 7, 10)

Writ petition dismissed. (E-4)

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

1. Heard learned counsel for the
petitioner, learned State Counsel for the
respondent and Smt. Jyoti Sikka, learned
counsel appearing for the respondent no. 2.

2. The notice was issued to the
respondent nos. 4 and 5, whose appointments
are under challenge and as per the office
report dated 25.01.2016, the notice is
sufficient but no one has filed vakalatnama
on behalf of the respondent nos. 4 and 5.

3. The petitioner has submitted that the
Manager Shivraji Janta Laghu Madhyamik
Vidyalaya, Lalpur, Ayodhya, Shrawasti had
published an advertisement for appointment
on the post of Assistant Teachers in daily
news paper Aaj on 14.05.2015 and on
10.05.2015 in Bhinga Times.

4. It is submitted that as per Rule 7 of
the U.P Recognized Basic Schools (Junior
High Schools) (Recruitment and Conditions
of Service of Teachers) Rules, 1978
(hereinafter referred to as, the Rules, 1978)
the advertisement has to be published in two
daily news papers, whereas it was published
in two news papers i.e. daily news paper Aaj
and weekly newspaper Bhinga Times. It is
further submitted that the last date of
submitting the application provided in the
advertisement was 25.05.2015. The petitioner
had duly applied within time on 21.05.2015.
The interviews were held on 31.05.2015 as
per schedule provided in the advertisement.

5. It is further submitted that the
application forms of respondent nos. 4 and 5
were received on 26.05.2015 i.e. after the last
date provided for submitting the application
form, the committee of management of the
institution has appointed the respondent nos.
4 and 5. In view of the aforesaid, the selection
of the respondent nos. 4 and 5 is bad and is
liable to be quashed.

6. On the other hand, learned Counsel
for the B.S.A. has submitted that petitioner
in pursuance of the advertisement dated
10.05.2015 and 14.05.2015 had submitted
his application for appointment on the post
of Assistant Teachers. The petitioner had
not participated in the interview and once
the petitioner had chosen not to turn up for
the interview, he had given up his right to
challenge the appointment of respondent
nos. 4 and 5.

7. After hearing learned counsel for
the parties, it is found that the petitioner, in
place of challenging the advertisements on
the ground that it was not published in two
daily news paper as provided under Rule 7
of the Rules, 1978, he had applied for the
post of Assistant Teachers in response to
11 All. The C.O.M., Sri Durga Ji Purva Madhyamik Balika Jamin Rasulpur, Azamgarh & Anr. Vs. State of
 U.P. & Ors.
129
the advertisements dated 10.05.2015 and
14.05.2015. The petitioner had chosen not
to participate in the interview, which was
held on 31.05.2015, as per schedule
advertise
in
the
advertisement
dated
10.05.2015
&
15.05.2015.
Once
the
petitioner had chosen not to participate in
the interview, he is neither a person
aggrieved nor an affected party. The
petitioner has no right to challenge the
selection of respondent nos. 4 and 5 after
having acted upon in pursuance of the
advertisement, now the petitioner can not
challenge the same.

8. The petitioner, in writ petition has
no where pleaded that he had gone to
participate in the interview but he was not
permitted to participate in the same. Even
in the para 26 of the counter affidavit, it has
specifically been pleaded that petitioner
was absent at the time of interview. This
fact has not been rebutted on the other hand
the statement was made on 20.07.2020 in
the Court that no rejoinder affidavit is
required to be filed in this regard.

9. A person who applies for
appointment on a post in response to an
advertisement
is
precluded
from
challenging the selection on the ground of
defect in the advertisement. He acquiesces
to the advertisement made and having
taken advantage of the same in response
thereto cannot turn around to point out in
the
manner
of
publication
of
the
advertisement.

10. Yet again, it may be observed that
in case a candidate after having applied for
appointment for a post later voluntarily
chooses not to appear in the interview i.e.
the selection process has no locus to
challenge the appointments of selected
candidates.

11. In view of the aforesaid, the writ
petition is devoid of any merit, accordingly,
it is dismissed.
----------
(2020)11ILR A129
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2020

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 5540 of 2020
Connected with
Writ-A No. 5795 of 2020 & other connected
cases

The C.O.M., Sri Durga Ji Purva Madhyamik
Balika Jamin Rasulpur, Azamgarh & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kunwar Bhaskar Parihar, Sri R.K. Ojha

Counsel for the Respondents:
C.S.C., Sri Bhanu Pratap Singh, Sri Lal Ji
Yadav

A. Service Law - U.P. Basic Education Act,
1972: Section 3, 4, 13, 19-U.P. Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978:- Rules 4, 5, 7, 10,
15, 16, 26- U.P. Junior High School
(Payment of Salaries of Teachers and
other Employees) Act, 1978 - Disciplinary
Enquiry -Once the Commissioner did not
have any authority under the scheme of
the Act, the initiation of the enquiry by
constituting a four member Committee
was wholly unwarranted and was a clear
interference in the functioning of the
statutory authorities conferred with the
powers under the Act and thus wholly
without jurisdiction. (Para 29, 30)

A perusal of the two Acts and the Rules,
mentioned above, shows that no powers have