# Dr. Brij Lata Arora & another v. Regional Inspectress of Girls Schools, I Region, Meerut & others

- **Citation:** (2004) 1 ILRA 74
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-06
- **Case number:** Civil Misc. Writ petition No.12380 of 1986
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-brij-lata-arora-another-v-regional-inspectress-of-girls-schools-i-region-40293
- **Pages:** 5

## Headnote

S.C.

U.P.
Secondary
Education
Service
Commission
Act,
Section
18-First
Removal
of
Difficulties
Order-adhoc
appointment as lecturers by committee
of
Management-duly
approved
by
D.I.O.S.-subsequently
protected
by
interim order-but later became invalid in
view of Full Bench authority of Radha
Raizada case-petitioner continued in
service for more than 10 years-even the
appointment being regular-entitled for
regularisation
and
consequential
benefits-on equaitable consideration.

Held- Para 8 and 9

The net result therefore is that initial
appointments of the petitioners were in
accordance with law and protected by
interim orders but became invalid since
inception, by virtue of the aforesaid full
bench authority of Radha Raizada. It is
unfortunate that even after the decision
of Radha Raizada petitions could not be
heard
for
about
nine
years.
The
appointment
cannot
be
termed
as
fraudulent,
arbitrary
or
completely
against the rules when made as per the
view of this court prevalent at the
relevant time.
http:\\allahabadhighcourt.nic.in
1 All] Dr. Brij Lata Arora and another V. Regional Inspectress of Girls Schools and others
75
In my view, it is a fit case in which
equitable
consideration
must
prevail
upon strict legalities. It has been held in
A.I.R 1991 S.C 295 (also referred to in
A.I.R 2001 S.C 102) that even though
appointments were not proper however;
appointees were entitled to be treated as
regularly appointment on humanitarian
ground.
Case law relied upon:
1994 UPLBEC 1551
AIR 1991 SC 295

## Text

http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
74
the matter, is that would be interfering
with the powers of the District Judge.

It may be mentioned that the High
Court has laid down a norm, that every
Judge of the subordinate Court should
have at one time 300 cases pending
against him. But on inquiry, we have
come to know that many Judges have got
40 or 50 times or more cases pending
before them. Thus, for instance, we are
informed that the Chief Metropolitan
Magistrate, Kanpur has in his Court alone
about 30,000 cases pending, the Chief
Judicial Magistrate, Allahabad has alone
in his Court about 23,000 cases pending
and that is also the position in the Court
of the Chief Judicial Magistrate, NOIDA.
A large numbers of Judges have 10,000/-
or 15,000 cases pending before them. It is
not possible for human being to carry
such a load. Judges are not supermen, and
in every case they have to apply their
mind to the facts and law, which takes
some time. It is for the concerned
authorities to take action in the matter and
provide suitable remedies to ameliorate
the situation e.g. by appointing more
Judges.

We, therefore, dismiss this petition
but we recommend to the concerned
authorities to take up the matter in all
seriousness before the situation goes
totally out of control. Let the Registrar
General of this Court send copies of the
judgement
forthwith
to
the
Chief
Secretary and Law Secretary, U.P.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.8.2003

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ petition No.12380 of 1986

Dr. Brij Lata Arora & another ...Petitioner
Versus
Regional Inspectress of Girls Schools, I
Region, Meerut & others ...Respondents

Counsel for the Petitioner:
Sri A.K. Sharma

Counsel for the Respondents:
S.C.

U.P.
Secondary
Education
Service
Commission
Act,
Section
18-First
Removal
of
Difficulties
Order-adhoc
appointment as lecturers by committee
of
Management-duly
approved
by
D.I.O.S.-subsequently
protected
by
interim order-but later became invalid in
view of Full Bench authority of Radha
Raizada case-petitioner continued in
service for more than 10 years-even the
appointment being regular-entitled for
regularisation
and
consequential
benefits-on equaitable consideration.

Held- Para 8 and 9

The net result therefore is that initial
appointments of the petitioners were in
accordance with law and protected by
interim orders but became invalid since
inception, by virtue of the aforesaid full
bench authority of Radha Raizada. It is
unfortunate that even after the decision
of Radha Raizada petitions could not be
heard
for
about
nine
years.
The
appointment
cannot
be
termed
as
fraudulent,
arbitrary
or
completely
against the rules when made as per the
view of this court prevalent at the
relevant time.
http:\\allahabadhighcourt.nic.in
1 All] Dr. Brij Lata Arora and another V. Regional Inspectress of Girls Schools and others
75
In my view, it is a fit case in which
equitable
consideration
must
prevail
upon strict legalities. It has been held in
A.I.R 1991 S.C 295 (also referred to in
A.I.R 2001 S.C 102) that even though
appointments were not proper however;
appointees were entitled to be treated as
regularly appointment on humanitarian
ground.
Case law relied upon:
1994 UPLBEC 1551
AIR 1991 SC 295

(Delivered by Hon'ble S.U. Khan, J.)

1. First writ petition has been filed
by Dr. Brij Lata and Smt. Gargi. Second
writ petition has been filed by Kumari
Poornima Rajvanshi . third writ petition
has been filed by all the three lady
teachers.

2. In the first writ petition stay order
was passed on 8.8.1986 "till further
orders of the court the services of the
petitioners shall not be deemed to have
come to an end only because 30th June
1986 has intervened they shall continue"
and in the second petition on 23.8.1986
"till further orders of the court services of
the petitioner shall not be deemed to have
come to an end only because 30th June
1986 has intervened she shall continue".
By virtue of the aforesaid stay orders
which are still continuing all the three
aforesaid lady teachers claim to be
working in institution in question.

3. The main question to be decided
in these writ petitions is as to whether
services of the petitioners should be
dispensed with on the basis of the law laid
down by the full bench of this court
reported
in
Radha
Raizada
(1994
UPLBEC 1551) after more than 17 years
or they must be spared this ordeal on
equitable grounds due to continuance in
service, by virtue of interim order of this
court which was perfectly in accordance
with the view of this court taken in
several authorities which were good law
at that time but over ruled in the year
1994 by full bench authority of Radha
Raizada (Supra). Prior to the full bench
authority of this court of Radha Raizada
(Supra), the view of this court was that
section 18 and first removal of difficulty
Order of U.P. Secondary Education
Service Commission Act (Commission
Act in short), two different modes of ad
hoc appointment of teachers in recognized
High Schools and Intermediate colleges
were provided and that section 18 of the
Commission Act was de hors the first
removal of difficulty orders. According to
the
said
view,
management
after
intimating a substantive vacancy to
commission and on the failure of the
commission to recommend the name of
duly selected teacher was entitled and
authorized to select on its own without
intervention of D.I.O.S. a teacher on the
said substantive vacancy on ad hoc basis
and that such appointment was to remain
in operation until a duly selected
candidate from the commission joined. In
Adarsh
Kanya
Inter
college
Garh
Mukteshwar District Ghaziabad (as it was
at the relevant time) (here in after referred
to as the college) all the three petitioners
were granted ad hoc appointment as
Lecturers
by
the
committee
of
management
of
the
college
on
10.8.1984/25.6.1985,
25.6.1985
and
10.8.1984/26.6.1985 respectively. R.I.G.S
approved the appointment of all the three
petitioners by orders dated 15.11.1984;
3.2.1986 and 13.2.1986. However, in the
latter two orders it was directed that
appointment should remain valid only
until 30.6.1986.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
76

4. It is stated in Para 26 of the third
writ
petition
that
in
May
1995
advertisement was published by the
commission
inviting
application
for
making
regular
selection/appointment
against
several
posts
of
Lecturers
including the post held by the petitioner.
Through the said writ petition prayer was
made for quashing the said advertisement
and for other reliefs. This court by order
dated 20.2.1996 passed the following
interim order " In the meanwhile the
process of selection for appointment on
the posts in question shall go on and
appointment will also be made but the
same shall not be given effect to and shall
be subject to the result of this petition".
There is no material in the file, which
may suggest that any person was selected
or appointed on the posts held by the
petitioners. Through amendment in the
earlier two writ petitions which was
allowed it was prayed that respondents be
commanded to consider the case of the
petitioners
for
regularization
under
section 33-A of the Commission Act and
for granting selection grade. Through
amendment it has been stated that the
committee of management resolved to
grant selection grade to the petitioners
which was approved by D.I.O.S. and
Accounts Officer and petitioners were
given selection grade however D.I.O.S.
by order dated 26.7.2002 directed that
excess amount paid to the petitioner shall
be recovered from them, in view of the
fact that petitioners were continuing in
service on the basis of interim order
passed by High Court and their service
had not been regularized. The said order
has also been sought to be quashed.

5. In none of the aforesaid writ
petitions counter affidavit has been filed
by the state authorities. In one of the writ
petitions i.e. Writ Petition No. 12380 of
1986 Principal filed counter affidavit in
Aug-September
1986
(sworn
on
23.8.1986) stating therein that petitioners
were not working and that stay orders
having been passed after petitioners
ceased to be employees of the institution
did not have the effect of reviving their
services. In the rejoinder affidavit the said
assertion is denied. In February 1987
application for payment of salary in the
first two writ petitions was filed stating in
the affidavit filed in support thereof that
even though petitioners were working
under interim order however they were
not paid their salary.

6. Supplementary affidavit by the
Principal
(second
supplementary
affidavit) was also filed in April 1987
reiterating same facts which were stated
in the earlier counter affidavit and further
asserting that in view of stay order, letters
were issued by the Principal to the
teachers to join but they did not join.
There is nothing on the record in any of
the writ petitions to show that from which
date petitioners started getting salary
under U.P. payment of salaries Act, 1971.
Through amendment in the year 2002
which has been allowed on 25.11.2002,
Paras 5 to 14 of the affidavit filed in
support of amendment application have
been added as Paras 13 to 22 of the writ
petition. In para 5 of the aforesaid
affidavit it has been stated, "petitioners
are being paid their salary regularly".
After the aforesaid two counter affidavits,
there is no affidavit of the Principal
showing the state of affair with regard to
joining of the petitioner and payment of
salary to them. In para 8 of the affidavit
filed in support of amendment application
it has been stated that committee of
management through its resolution dated
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1 All] Dr. Brij Lata Arora and another V. Regional Inspectress of Girls Schools and others
77
7.3.1998
recommended
that
as
the
petitioners had been in service for more
than ten years hence, they were entitled
for selection grade. A resolution to that
effect was sent to the D.I.O.S through
letter dated 16.3.1998 by committee of
management which according to para 9 of
the said affidavit was approved by
D.I.O.S and petitioners were given
selection grade which was stopped by
order of D.I.O.S dated 26.7.2002 and
through the said order recovery of excess
amount paid to the petitioner with effect
from 1.1.1996 was directed to be
recovered. In the order-dated 26.7.2002,
D.I.O.S has observed that petitioners are
working by virtue of stay orders of the
High Court.

7. From the above facts it appears
that if not immediately after passing of
the interim order then at least since after
sometime from the said date petitioners
are working and getting salary under U.P.
Payment of Salaries Act, 1971.

8. It cannot be denied that
petitioner's appointment was not in
accordance
with
first
removal
of
difficulties order framed under U.P.
Secondary
Education
Service
Commission Act (herein after referred to
as the Commission). None of the
procedure prescribed under the said order
was followed. As held in full bench
authority of this court reported in Radha
Raizada
versus
Committee
of
Management
1994
UPLBEC
1551,
management
could
make
ad
hoc
appointment under section 18 of the
Commission Act (as it stood at the
relevant time) only after their selection in
accordance
with
first
removal
of
difficulties order and under section 18 of
the Act, management had no power to
select and appoint ad hoc teachers de hors
first
removal
of
difficulties
order.
However, it is also correct that prior to the
said full bench authority, there were
several decisions of this court holding
otherwise i.e. recognizing power of
committee of management under section
18 of the Act to independently select and
appoint ad hoc teachers. It was in view of
such authorities that stay orders were
granted to the petitioners in the first two
writ petitions and by virtue of those stay
orders which were perfectly in accordance
with the view of this court expressed in
several authorities at that time, petitioners
are working and getting salary under U.P.
Payment of Salaries Act, 1971 for more
than ten years. It is true that judgment of
the court does not lay down the law; it
only interprets the law, which is always
retrospective
unless
expressly
made
prospective. The net result therefore is
that initial appointments of the petitioners
were in accordance with law and
protected by interim orders but became
invalid since inception, by virtue of the
aforesaid full bench authority of Radha
Raizada. It is unfortunate that even after
the decision of Radha Raizada petitions
could not be heard for about nine years.
The appointment cannot be termed as
fraudulent, arbitrary or completely against
the rules when made as per the view of
this court prevalent at the relevant time.

9. In my view, it is a fit case in
which
equitable
consideration
must
prevail upon strict legalities. It has been
held in A.I.R 1991 S.C 295 (also referred
to in A.I.R 2001 S.C 102) that even
though appointments were not proper
however; appointees were entitled to be
treated as regularly appointment on
humanitarian ground.
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
78

10. In para 12 of the said judgment it
has been held "Having reached the
conclusion about the invalidity of the
impugned appointments made by the
Chief Justice, we can not, however, refuse
to
recognize
the
consequence
that
involves on uprooting the appellants."
Para 13 of the said authority is quoted
below:-

"There is good sense in the plea put
forward for the appellants. The human
problem stands at the outset in these
cases and it is that problem that
motivated us in allowing the review
petitions. It may be recalled that the
appellants are in service for the past 10
years. They are either graduates or
double graduates or post graduates as
against the minimum qualification of
S.S.L.C required for Second Division
Clerks
in
which
cadre
they
were
originally recruited. Some of them seem
to have earned higher qualification by
hard work during their service. Some of
them in the normal course have been
promoted to higher cadre. They are now
overaged for entry into any other service.
It seems that most of them cannot get the
benefit of age relaxation under Rule 6 of
the Karnataka Civil Services (General
Recruitment) Rules, 1977. One could only
imagine their untold miseries and of their
family if they are left at the midstream.
Indeed, it would be an act of cruelty at
this stage to ask them to appear for
written test and viva voce to be conducted
by the Public Service Commission for
fresh selection (See Lila Dhar v. State of
Rajasthan (1982) I S.C.R 320 at 326:
(A.I.R 1981 SC 1777 at p.1780))."

11. In view of the above, I hold that
the
petitioners
are
entitled
to
be
considered
for
regularization
and
consequential benefits, if regularized, in
accordance with the relevant provisions of
Commission Act, as amended from time
to time. Salary already deducted in
pursuance of order of D.I.O.S dated
26.7.2002, shall not be refundable to the
petitioners.
Appropriate
orders
with
regard to regularization by competent
authority/body must be passed within six
months from the production of certified
copy of this order.

Accordingly writ petition is allowed
as aforesaid.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 20464 of 1996

Santosh Kumar Jain & another ...Petitioners
Versus
State of U.P. through Collector, Aligarh
and another

 ...Respondents

Counsel for the Petitioners:
Sri K.N. Tripathi
Sri M.K. Gupta
Sri U.N. Sharma
Sri V.K. Gupta

Counsel for the Respondents:
Sri D. Gupta
Sri Ramesh Upadhyaya
Sri P.P. Srivastava
Sri Hemant Kumar
Sri Y.D. Sharma
Sri J.P. Gupta
Sri S.N. Upadhyaya
S.C.