# Dr. Mahendra Shankar Singh & Anr v. The Chancellor, University of Allahabad & Ors

- **Citation:** (2014) 1 ILRA 507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-28
- **Case number:** Civil Misc. Writ Petition No. 16685 of 2007
- **Bench:** Arun Tandon, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-mahendra-shankar-singh-anr-v-the-chancellor-university-of-allahabad-ors-42911
- **Pages:** 5

## Headnote

Act,
1973-Section
31(3)(c)
Regularization-petitioner
working as part-time lecturer-rejected
by executive council-appointment as
guest lecturer-payment of honorarium
per lecture basis-not contemplated in
Act-despite of being aware-petitioner
not applied for regular appointment-not
can challenge the selection process-no
mandamus can be issued to university
contrary to law.

Held: Para-21
In our opinion, the Act No.26 of 2005
does not admit of any method of
regularization and the University cannot
be mandated to act contrary to law. It is
not within the domain of the University
to resort to any method of regularization
of back-door appointments. The Apex
Court in the case of State of Karnataka &
Ors. Vs. Umadevi & Ors reported in 2006
(4) SC 420 has specifically prohibited
regularization of persons, who have been
appointed through back-door in violation
of Article 14 of the Constitution of India.

Case Law Discussed:
W.P. No. 52001 of 2000; 2007(1) ADJ 526; W.P.
No. 29241 of 2001; (2010) 9 SCC 247; 2006(4) SC
420; 2014 Law Suit (S.C.) 90.

## Text

1 All] Dr. Mahendra Shankar Singh & Anr. Vs. The Chancellor, University of Allahabad & Ors.

507
the procedure established by law as per
Article 21 of the Constitution of India.
Liberty and reasonable restriction are inbuilt
in such Article.

5.

Against
this
background,
according to us, there should not be any
deprivation of the interests of any adult
particularly an adult girl in connection
with her living. Administration/police
authorities are directed to protect their
interest to that extent.

6. It is made clear that the boy and the
girl are not debarred from proceeding
before the appropriate Court of law in case
of any exigency. Generally, the police and
the administration will be much more alert
and sensitive in dealing with such type of
issues. Repeated awareness programme is
needed to be made to uproot the social evil
and minimise the incidents.

7. With the above observations, the
writ petition is disposed of on contest at
the stage of admission.

8. However, no order is passed as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Civil Misc. Writ Petition No. 16685 of 2007

Dr. Mahendra Shankar Singh & Anr.
 ...Petitioners
Versus
The Chancellor, University of Allahabad
& Ors. ......Respondents

Counsel for the Petitioners:
Sri Manu Khare

Counsel for the Respondents:
C.S.C.. Sri Gautam Baghel,
Sri Ram Gopal Tripathi,Sri V.K. Singh

State
Universities
Act,
1973-Section
31(3)(c)
Regularization-petitioner
working as part-time lecturer-rejected
by executive council-appointment as
guest lecturer-payment of honorarium
per lecture basis-not contemplated in
Act-despite of being aware-petitioner
not applied for regular appointment-not
can challenge the selection process-no
mandamus can be issued to university
contrary to law.

Held: Para-21
In our opinion, the Act No.26 of 2005
does not admit of any method of
regularization and the University cannot
be mandated to act contrary to law. It is
not within the domain of the University
to resort to any method of regularization
of back-door appointments. The Apex
Court in the case of State of Karnataka &
Ors. Vs. Umadevi & Ors reported in 2006
(4) SC 420 has specifically prohibited
regularization of persons, who have been
appointed through back-door in violation
of Article 14 of the Constitution of India.

Case Law Discussed:
W.P. No. 52001 of 2000; 2007(1) ADJ 526; W.P.
No. 29241 of 2001; (2010) 9 SCC 247; 2006(4) SC
420; 2014 Law Suit (S.C.) 90.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri Manu Khare, Advocate
on behalf of the petitioners.

2. Petitioners, who are two in
number seeks a writ of mandamus
directing the University to take a decision
in
accordance
with
the
orders
of
Chancellor dated 20.01.2005 and to quash
the appointment of two Lecturers in
pursuance
to
Advertisement
dated
508 INDIAN LAW REPORTS ALLAHABAD SERIES

14.03.2007 (Annexure 13 to the present
writ petition).

3. Facts in short giving rise to the
present writ petition are as follows :

4. University of Allahabad, which
was earlier a State University, under the
U. P. State Universities Act, 1973 is
stated to have offered appointment to the
petitioners, who are two in number, as
Additional Lecturers in the Department of
Geography vide order dated 6.04.1995 on
a fixed honorarium of Rs.60/- per lecture.
A copy of the appointment letter is
enclosed as Annexure 1 to the present
writ petition.

5. It is the case of the petitioners that
they have been functioning in terms of the
said appointment since 1995. However,
their designation was changed from
Additional Lecturers to that of Guest
Lecturers and their honorarium was
increased to Rs.100/- per lecture from
Rs.60/- per lecture subject to maximum of
Rs.5000/- per month. According to the
petitioners they became entitled for
regularization under Section 31 (3) (C) of
the State Universities Act, 1973. For the
purpose they made a representation before
the Chancellor of the University under
Section 68 of the State Universities Act,
1973. The Chancellor rejected their
representation by means of the order
dated 26.03.2002 and the Executive
Council of the Committee also rejected
the
claim
of
the
petitioners
for
regularization vide its Resolution dated
4.05.2002
after
recording
that
the
petitioners had not been appointed prior to
the cut off date i.e. 30.06.1991 as
provided for under Section 31 (3) (C) of
the State Universities Act, 1973 as it then
stood.

6. Thereafter, with reference to the
judgment passed by the High Court in the
case of Dr. Sangeeta Srivastava being
Writ Petition No.52001 of 2000 decided
on 22.05.2002, the petitioners made a
second reference to the Chancellor on
6.09.2002 being Reference No.157 of
2002. This reference was also answered
against the petitioners by the Chancellor
vide order dated 31.12.2003/5.01.2004.
The
Chancellor
recorded
that
the
petitioners are not covered by the
provisions of Section 31 (3) (C) of the
State Universities Act, 1973. Their
appointment as Guest Lecturers is not
contemplated by the State Universities
Act,
1973
and
accordingly,
their
representation had no substance.

7. This order of the Chancellor was
not subjected to any further challenge and
has became final.

8. However, in view of the Act No.6
of 2004 whereby Section 31 (3) (C) of the
State
Universities
Act,
1973
was
amended, the petitioners made a fresh
representation for they being regularized
under the amended provisions of Section
31 (3) (C) of the State Universities Act,
1973.
This
representation
of
the
petitioners is stated to have been allowed
by the Chancellor by providing that their
claim may be examined under the
provisions of U. P. State Universities Act,
1973 by the Executive Council of the
University. It is this order that the
petitioners seeks to enforce. They also
challenge
the
advertisement
dated
14.03.2007, which had been published for
the post of Lecturers of Geography, as
were vacant in the department.

9. Manu Khare, counsel for the
petitioner could not demonstrate before this
1 All] Dr. Mahendra Shankar Singh & Anr. Vs. The Chancellor, University of Allahabad & Ors.

509
Court as how the petitioners answer the
description of Lecturer or Part Time
Lecturer so as to fall within the four
corner of Section 31 (3) (C) of the State
Universities Act, 1973. It could not be
established as to how in the teeth of the
findings of fact recorded in the earlier
order of the Chancellor dated 31.12.2003
and 5.01.2004 qua their nature of
appointment how could Section 31 (3) (C)
of the State Universities Act, 1973 as
amended by Act No.6 of 2004 be attracted
in their case.

10. We may record that there is
absolutely no material, which can lead this
Court to a conclusion that the petitioners
answer the description of Lecturer or Part
Time Lecturer so as to be covered by 31 (3)
(C) of the State Universities Act, 1973 as
amended by Act no.6 of 2004. Appointment
as
Guest
Lecturers
on
payment
of
honorarium on per lecture basis is not
contemplated by the State Universities Act,
1973. In any case petitioners do not answer
the description of Lecturer or Part Time
Lecturer as provided by Section 31 (3) (C) of
the State Universities Act, 1973.

11. For the purpose reference may
be had to the Division Bench Judgment of
this Court in the case of Dr. Arvind
Kumar Singh Vs University of Allahabad
& Ors reported in 2007 (1) ADJ 526
wherein the provisions of Section 31 (3)
(C) of the State Universities Act, 1973
have been interpreted. The judgment of
Apex Court and the case of Dr. Sangeeta
Srivastava has been examined in detail.

12. Counsel for the petitioner as a
desperate attempt made reference to Clause
10.02 of the First Statutes of Allahabad
University (when it was a State University)
for suggesting that Part Time Teachers could
be appointed and the case of the petitioners is
covered by the said Clause.

13. The contention has only been
raised to be rejected. Clause 10.02 of the
First Statutes of the Allahabad University
as it was then applicable reads as follows :

"10.02. Teachers of the University
shall be appointed in the subjects on
whole-time basis in the scales of pay
approved by the State Government :

Provided that part-time lecturers may
be appointed in subjects in which, in the
opinion of the Academic Council such
lecturers are required in the interest of
teaching or for other reasons. Such parttime
lecturers
may
receive
salary
ordinarily not exceeding one-half of the
initial salary of the sclae for the post to
which they are appointed. Person working
as Research Fellow or as Research
Assistants may be called upon to act as
part-time lecturers."

14. From the records it is apparent
that there is no such opinion of the
Academic Council for appointment of
Part Time Teachers in the department of
Geography and further that petitioners
were not appointed on the half of the
initial salary of the salary applicable for
the post they are appointed.

15. From the records, it is
established that the petitioners were not
paid half of the initial salary applicable
for the post of Lecturers. On the contrary,
they were appointed as Guest Faculties
and were paid a honorarium on per lecture
basis.

16. Even otherwise, we may record
that the exercise, which has been directed
510 INDIAN LAW REPORTS ALLAHABAD SERIES

to be undertaken under the order of the
Chancellor dated 31.12.2003/5.01.2004
has lost its efficacy in view of the fact that
Allahabad University has been declared to
be a Central University by Central Act
No.26 of 2005.

17. Section 5 (D) of the Act, 2005
provides that all teachers, who were
working earlier shall continue on the same
conditions and in same status unless
amendments are made in the status. The
issue in that regard has already been
decided by this Court in the case of Dr.
Mohini Verma Vs Union of India & Ors
made in Writ Petition No.29241 of 2011
decided on 13.03.2014.

18. For the same reasons we find
that there cannot be any direction to the
Allahabad University, which is now a
Central University, to consider the claim
of the petitioners in the matter of
regularization nor the petitioners are
within the four corners of Section 31 (3)
(C) of the State Universities Act, 1973 so
as to entitle them for such regularization.

19. We further find that there is
hardly any good ground to challenge the
process of selections, which has been
initiated
by
the
University
for
appointment on the two vacant posts of
Lecturers
in
the
Department
of
Geography, University of Allahabad. The
petitioners despite being aware of the
advertisement either did not participate in
the process of selection or if they had
applied they have not been selected.

20. We may also record that an
attempt was made on behalf of the
petitioners to suggest that in view of the
judgment of the Apex Court in the case of
State of Karnataka & Ors Vs M. L. Kesari
& Ors reported in (2010) 9 SCC 247 one
time exercise is required to be undertaken
by the University for the purpose of
regularization of persons like the petitioner,
who have been working for so many years.

21. In our opinion, the Act No.26 of
2005 does not admit of any method of
regularization and the University cannot
be mandated to act contrary to law. It is
not within the domain of the University to
resort to any method of regularization of
back-door appointments. The Apex Court
in the case of State of Karnataka & Ors.
Vs. Umadevi & Ors reported in 2006 (4)
SC
420 has
specifically
prohibited
regularization of persons, who have been
appointed through back-door in violation
of Article 14 of the Constitution of India.

22. We may also refer to the latest
judgment of the Apex Court in the case of
Renu & Others Vs District & Sessions
Judge, Tis Hazari & Anr reported in 2014
Law Suit (S.C.) 90 wherein it has been
laid down that if any appointment is made
without advertisement, be it temporary or
regular, and the appointee becomes
entitled
to
salary
from
the
State
Exchequer, then such an appointment
would be null and void.

23. In view of the fact that regular
selection has already been made in respect
of the two vacant posts of Lecturers in the
Department of Geography, University of
Allahabad, we find no good ground to
interfere on behalf of the petitioners.

24. The writ petition is, therefore,
dismissed.

25. Interim order, if any, stands
discharged.
--------
1 All] Prem Kumar Upadhyaya Vs. State of U.P. & Ors.

511
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 16879 of 2010
connected with W.P. No. 60687 of 2013

Prem Kumar Upadhyaya. ......Petitioner
Versus
State of U.P. & Ors...... .....Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
C.S.C.

U.P.(Civil
Police)
Constable and
Head
Constables Service Rules, 2008-Rule-17-out
of turn promotion-in pursuance of circular
issued by secretary home affairs-claim for
promotion-after enforcement of the Rules
suppressing all government orders and
circulars-except as per rules no promotion
can be given out of turn basis-if promoted
ignoring the Rules follow up correcting
measures be taken-by forthwith-wrong
promotion contrary to Rules can not be
precedent-petition dismissed.

Held:Para-19
Moreover, when the statutory rules have
been framed in supersession of existing
rules and orders etc., one cannot rely on an
existing Rule or Order, which contemplates
a procedure for appointment or promotion,
not recognized by subsequently framed
statutory rules. This Court, therefore, has
no hesitation in holding that, on and after
2.12.2008, no appointment in any manner,
whether promotion or otherwise, cannot be
made which is not consistent with the
provisions of C&HC Rules, 2008 and SI&I
Rules, 2008. I further make it very clear
that no appointment can be made in
contravention of C&HC Rules, 2008 and
SI&I Rules, 2008, by taking recourse to
Government Order dated 3.2.1994, as
amended from time to time, for the reason
that the said Government Orders have
ceased
to
operate,
on
and
after
enforcement of C&HC Rules, 2008 and
SI&I Rules, 2008 and cannot be resorted
to for making any "Out of Turn" promotion.
In
other
words,
no
"Out
of
Turn"
promotion now can be made by taking
recourse to Government Orders issued
prior to 2.12.2008 as that would be
inconsistent and contrary to statutory
rules. Such Government Orders cannot be
given effect to, on and after 2.12.2008,
when the aforesaid Rules of 2008 became
operative.

Case Law Discussed:
(2010) 2 SCC 728; AIR 2000 SC 2306; AIR
2003 SC 3983; AIR 2004 SC 2303; AIR 2005
SC 5565; AIR 2006 SC 1142.; AIR 2006 SC
1142.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. In both these matters, the question
of law involved is common. Though both
were heard on different dates and
judgments reserved, but since the issue
involved is common, therefore, I am
deciding both the writ petitions by this
common judgment.

2. The issue of "Out of Turn"
promotion in U.P. Civil Force in the light
of Government Orders dated 3.2.1994,
2.1.1998 and the Director General of
Police,
U.P.,
Lucknow
(hereinafter
referred to as "DGP")'s Circular dated
29.12.1998 is involved in both the writ
petitions.

3. In Writ Petition No. 16879 of
2010 (hereinafter referred to as "First
Petition"), Sri Vijay Gautam, learned
counsel
for
petitioner
and
learned
Standing Counsel were heard and the
arguments concluded on 20.11.2013 and
judgment
was
reserved.
While
the