# Dr. Sanjay Kumar Singh v. State of U.P. and others

- **Citation:** (2000) 3 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-sanjay-kumar-singh-v-state-of-u-p-and-others-39484
- **Pages:** 8

## Text

3All] Dr. Sanjay Kumar Singh V. State of U.P. and others
133
certain brick kiln owners to have
fixed chimneys Government may device
means to help them, but the brick kiln
owners cannot be allowed to run their kilns
at the cost of life and health of people
living in the rural areas and natural wealth
in the shape of precious grove of exquisite
variety of mango, etc. of the country. Brick
kiln owners must ensure observance of
such
restriction
provided
by
the
government in relevant government orders.

9. A writ of mandamus is issued to
Respondent Nos. 1 to 3 in particular to
ensure compliance of relevant Government
Order on the subject, information in this
respect may be provided by the District
Magistrate, Ballia within one week of
receipt of certified copy of this order,
which may by provided to this Court.

10. Writ petition is allowed.

11. A copy of this judgment may be
sent by the Registry to the following for
necessary action:

1.
Chief secretary, Government of U.P.,
Lucknow.
2.
Director Agriculture and horticulture,
Lucknow.
3.
Director General of police, U.P.
Police, Lucknow.

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By the Court

1. In CIVIL MISC. WRIT
PETITION NO. 27220 OF 2000, the
petitioner was given an assignment (and
not appointment in strict legal sense) on a
fixed honorarium i.e. on the absolutely
stop gap day to day arrangement on fixed
amount (since no regular appointment
could be made without following due
process of law prescribed under U.P.
Higher Education Services Commission
which was bound to consume some time
and thereby affecting education in the
concerned institutions) vide Government
Order dated 7.4.1998 (Annexure _1 to the
Writ Petition).

2. The Government Order dated 07
April 1998 (Annexure -1 to the Writ
Petition)
categorically
mentions
that;
subject
to
possessing
minimum
qualification
prescribed
by
University
Grant Commission, a candidate is allowed
to teach by giving Rs. 100/- per lecture
subject to a maximum of Rs. 5,000 per
month
provided
he
gives
a
declaration/undertaking on oath on stamp
paper subject to the condition that
capability of an available candidate is
assessed (without holding interview) as per
quality point marks on the basis of
academic record only and as such a person
shall walk out immediately on regular
selection available or by 30th June. The
process is to be repeated for each new
academic session. Relevant Paras of the
Government Order dated 7th April 1998 are
1,3,10 and 11. Director's approval dated
27th
October
1998
(Annexure
Writ
Petition) also reiterates the same. It refers
to its earlier letter dated 2 May 1998.
Appointment letter dated 28th October
1998 (Annexure-3 to the Writ Petition)
again re-asserts the above. It may be
recalled that appointment letter was issued
with reference to Manager's earlier letter
dated 11th September 1998, but its copy
has not been filed by the petitioner to
enable the Court to have complete picture
of the situation in which honorarium
appointment was made.

3. This Court takes notice of the
Director's letter dated 21st May 1998
(referred to in Director's letter of approval
in favour of Petitioner dated 27th October
1998- Writ Annexure - 2) - found in the
record of another Writ Petition.

4. In this letter of 21st May 1998
procedure
for
making
honorarium
appointment has been given. Apart from
others, it contains, as its approved a
proforma of 'agreement' (Anubandh) and
format
of
appointment
letter.
These
documents show that a candidate had to
give declaration/undertaking to claim any
3All] Dr. Sanjay Kumar Singh V. State of U.P. and others
135
right against said 'assignment' on regular
selectee being available or after 30th June,
whichever may be earlier. Photostat copy
of Director letter dated 21st May 1998 is
being kept on record- (total six pages).

5. There is no statement in the
petition
that
petitioner's
alleged
appointment on honorarium was subject to
the
condition
that
it
shall
cease
immediately
on
a
regular
selectee/appointee being available from the
U.P. Higher Education Service 'hereinafter
called' The Commission.'

Why the Petitioner should conceal it?
Paras 5 to 9 of Writ Petition be perused for
this purpose.

6. The Courts have time and again
deprecated
adhoc
appointments
and
emphasised upon regular appointments.

7. The petitioner was called upon to
give lecturers at the rate (200-per lecture
(subject to maximum of Rs. 5000/- in a
month) stands on inferior footing' as
compared to an adhoc appointee in a
regular pay scale by adhoc selection
committee' with one expert and/or facing
interview from academic record only
under concerned University Statute.

8. Regular Appointees are chosen
and recommended by the Commission
being the best amongst from the then
available candidates on the basis of their
academic record and performance in
interview
assessed
objectively
by
a
'Selection Committee' consisting of the
required members of Experts of the
subject- depending upon cadre to which a
post belongs.

9. The challenge in the petition is on
the
allegations
pointing
out
defect/illegality in the rules and procedure
adopted by the Commission for selecting
candidates.

10. There is no averment in the
'petition' that Petitioner had applied
against
the
advertisement
by
the
Commission for regular selection. Learned
counsel for the Petitioner failed to state
whether Petitioner had applied against
advertisement issued by the Commission.

11. There are two possibilitiesnamely if the Petitioner had applied, he
ought to have raised his grievance at the
First opportunity i.e. before the interview
was held. There is no averment that he was
unable to do so. Delay defeats equity if
situation changes and a right accrues in
favour
of
others
(namely
selected
candidates) - See (1992) 2 LIC 1602 -
Dr.B.S. Chauhan, J. and (1999) 4 SCC
450.

12. If the petitioner did not care to
apply against the advertisement he has
nothing to do with the Commission and its
procedure since he indicate no desire to
seek
regular
selection
after
facing
'selection committee' constituted by the
Commission.

13.

The
petitioner's
alleged
appointment
in
the
College
was
conditional and his continuation in the
institution for taking classes is co-terminus
with the end of academic session-i.e. 30th
June or earlier depending upon availability
of a regular selectee from the Commission.
No. promise or assurance of employment
can be read in the alleged engagement
letter (Writ Annexure-3) approval by the
Director (Writ Annexure-) in favour of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
136
petitioner, which were with reference to
Government Order Dated 07th April 1998
(Writ Annexure-1) and Director's letters
dated 21st May 1998 (referred to above).
For a promise to be enforceable, the same
has, however, to be clear and unequivocal.
One can not read any such assurance or
representation/assurance or hope in any of
the documents. The petitioner is now
estopped from challenging the process
adopted by Commission in making regular
selection while others have changed their
position by Petitioner's own inaction.

14. The petitioner has no locus standi
to challenge the selection process if he did
not apply to the commission in pursuance
to its advertisement. He ought to have
agitated the matter as soon as the
advertisement was made. Admittedly, it
has not been done on the first opportunity
and no good reason has been disclosed to
the Court for said inaction.

15.

Selection
process
by
the
Commission, as per its rules, cannot be
permitted
to
be
challenged
by
the
petitioner
who
has
allowed
the
Commission
'to
go
ahead,
select
candidates
in
pursuance
of
its
Advertisement and the Commission and
the candidates- who has applied to the
Commission have now changed their
position to their detriment. No prejudice is
caused to the petitioner by Selection
Commission as he did not even apply
against advertisement by the Commission.
In fact, writ petition is not maintainable at
the instance of the Petitioner.

16.

The
petitioner
cannot be
permitted to change his position after the
Commission has made selection and keep
the selected candidates at bay and watch
the development and Court proceeding for.
The fence as they may not be aware and
also not interested as select list may not
have been declared in a given case.
Petitioner, admittedly, did not raise a
finger or pointed out defect to the State
Government/the Commission or otherwise
the State Government/Commission may
have, if convinced, removed the alleged
defects and not undertaken the exercise of
selection
in
the
process
on
being
highlighted by the petitioner. No objection
being taken at the earliest, Petitioner
cannot be allowed to turn around and raise
objection taking all concerned by surprise.

17. Honorarium assignees have no
right in law or otherwise after giving
undertaking as per Paras 1,3, and 10 and
Government Order dated 7th April 19.98,
writ Annexure 1-pp. 19 and 21 Director's
approval letter dated 27th October 1998 -
Paras 2,3 and 4 writ Annexure 2- PP 25
and 26, Manager's Appointment letter
dated 28th October 1998 writ Annexure-3
declaring that he shall make no claim on
regular appointee being available and
abide by conditions of Government Order
dated 07th April 1998.

18. One will appreciate that process
of selection, howsoever defective, so long
there is no allegation of manipulation, is
much better than the process adopted in a
case of assignment on honorarium basis
exclusively on the basis of academic
record and without interview by Selection
Committee with experts.

19. It will also be useful to recall a
few decisions by the Courts wherein ratio
descendi laid down is to the effect that
courts should be slow to interfere with the
decision of Expert Bodies and in the
matters
of
Educational
Institutions.
Reference may be made to (1997) 3 SCC
3All] Dr. Sanjay Kumar Singh V. State of U.P. and others
137
1.4, 1997 (5) SCC 53 & 60; (1997) 4 SCC
575; 1981 Edu. Cases 359 (DB) and
(1998) ALR 740.

20. Assignment on honorarium if
continued,
lie
adhoc/stop
gap
arrangements in the past, it is going to
prove itself another device to seek entry
from back door depriving better candidates
to seek regular appointment. It will in
correct deprive many others, who may not
like to take up a stop gap assignment on
fixed emoluments and wait in sanguine
hope of availing opportunity to seek
regular appointment- with security and
certainty.

21. It is in general public interest as
well as the students and the institutions in
particular that the best available candidates
(who are at present the candidates selected
by the Commission), should be allowed to
join the institutions.

22. The compassion, sympathies and
equities can not be allowed to fly over and
frustrate
regular
appointments.
Honorarium appointees, like the petitioner,
can be allowed in the institution only so
long as it does not infringe the rights and
interest
of
others,
namely
regular
appointees.

23. In that situation Court must not
exercise
its
equitable
extra-ordinary
discretionary
jurisdiction.
In
fact,
petitioner has no case in view of the above
to continue after 30th June 2000.

His earlier Writ Petition No. 79404 of
1999 is pending as it is not listed/heard in
spite of order of the Bench and now
rendered infructuous on regular selectee
being recommended and available.

24. Learned counsel referred to
several orders, some of which are prior to
07th April 1998,I.e. issuance of relevant
Government order which is the basis of the
claim of the present petitioner. There is no
averment that in those cases similar
conditions
existed.
Petitioner
has
deliberately
concealed
that
he
had
complied or not with the conditions
contained in Government Order dated 07th
April 1998 (Annexure-1 to the Writ
Petition) approval dated 27th October 1998
(Annexure-2
to
the
Writ
Petition),
Assignment letter dated 28th October 1998
issued by the Principal of the College
(Annexure-3 to the Writ Petition. Orders
passed by the Benches of this Court in
other petitions in the past cannot be treated
as
binding
precedent
in
the
above
circumstances as there is no adjudication
of any issue on merit after recording
reasons and these were merely by ad
interim measure in different situation.

25. By passing interim orders
restraining regular selectee, Court will not
encourage stopgap arrangements. On the
other hand,. Court will unconsciously, by
granting interim orders, which could be
granted only if the petition is finally
allowed, shall discourage regular selectee
to wait and encourage to join elsewhere
because of matter being sub judice. Why a
good and brilliant teacher go for ligigation
and stake his claim for a job without
security and certainty. Interim order, if
issued , will issued, will hang like a
Damocoels' sword.

Court should not be tempted to pass
order keeping regularly selected candidates
in a fix and thereby give an advantage/or
upper edge to the Petitioner for gaining
time to mature or harness their rights by
making claims before State Government
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
138
on so many considerations, other than
merit, for regularisation.

26. Be that as it may be-a Court
cannot place a regularly selected candidate
in original position if interim order was not
passed, in the eventuality of petition being
dismissed after several years. No one can
be reasonably expected to wait indefinitely
when he cannot be compensated for loss of
salary and seniority for the period he is
prevented to join by virtue of Court's
interim order.

27. Courts should not give better deal
to the one (Petitioner) by its intervention
and thus non-suit regular selectees. Equity
must follow law and to the extent it does
not infringe upon others right. Petitioner
has not been vigilant and thus there is no
equity either in his favour.

28. Since the assignment of the
Petitioner was purely by way of stop gap
arrangement on a fixed honorarium on an
unequivocal undertaking/declaration; he
also had opportunity to undergo process of
'regular selection' held by the Commission
- but he chose to keep off, and that process
for selection by the Commission was
initiated without delay in the year 1998
itself, the Petitioner cannot maintain this
petition at this belated stage.

In my opinion honorarium appointees
have no prima facie case in the facts of the
present case.

29. Considering all the aspects with
reference
to
general
interest
of
Education/Academic institution, it is also
not a fit case for interference under Article
226, Constitution of India. Moreover,
present
petitioner
is guilty of nondisclosure of relevant and material fact, as
indicated in the earlier part of the
judgment. This Court declines to exercise
its
jurisdiction
under
Article
226,
Constitution of India in view of the fact
that he has not approached the Court with
clean hands (see 1951) All 746 (FB), a
view
consistently
upheld
in
several
decisions of the Courts.

30. It may also be noted that this very
Petitioner earlier filed Writ Petition No.
39404 of 1999 claiming a writ or direction
in the nature of mandamus commanding
the Respondent (Same as in the present
petition) not to interfere in the functioning
of the Petitioner as ad hoc teacher till the
regularly selected incumbent by the U.P.
Higher Education Services Commission
called
the
'Commission")
joins
the
college-
when
he
written
statement
working on fixed honorarium as stop gap
arrangement. The grievance in the earlier
petition of Dr. Sanjay Kumar Singh
(present Petitioner), who was engaged
under Government Order dated 07th April
1998, was to the extent that he should be
allowed to continue till a regularly selected
candidate
by
the
Commission
was
available.

31. There is no grievance in the said
Writ Petition No. 39404 of 1999, record of
which was summoned from the Registry
and perused, that he should be continued
beyond 30th June. Petitioner has no right to
continue
after
the
Commission
has
recommended regular selectee. In view of
the above, Petitioner is estopped in law
and cannot be permitted to challenge the
selection of the Commission/or beyond
30th June as an after thought. In this
petition,
Petitioner
has
assailed
the
condition of making fresh 'honorarium
assignments' for next academic session.
Perusal of Para 22 read with Annexure-7
3All] Dr. Sanjay Kumar Singh V. State of U.P. and others
139
to the Writ Petition and Para 22 gives an
incomplete
and
disputed
picture,
Couiously there is no mention anywhere in
the Writ Petition as to what happened on
05th May 2000 when the delegation of the
honorarium teachers was supposed to meet
the representative of the Government.
Information on this aspect has been
conveniently withheld. Obviously order
was obtained from the Division Bench by
concealing relevant and material fact.

32. Again Annexure 8 to the Writ
Petition to the said Writ Petition refers to
an order passed dated 19th May 1999
disposing Writ Petition No. 2-830 of 1999
(Dr. Shivanand and another versus State of
U.P. and others) disposing the petition in
limine. From the averments in the present
petition (Writ Para 23), it is not clear as to
whether Dr. V.K.Srivastava (Petitioner in
Writ Petitioner No. 21319 of 2000) has
made
claim
in
his
petition
as
an
'honorarium appointee' for continuing
until a regularly selectee was available
irrespective of 30th June, cut off date or he
had claimed continuance on the basis of
his substantive appointment.

I called for the original record of Writ
Petition No. 21319 of 2000 and perused
the same.

33. Annexure-5 to the said petition is
Director's letter dated 20th April 2000
addressed
to the Secretary/Authorised
Controller
of
Jadishpur
Sanskrit
Mahavidyalaya, Varanasi intimating that
the Commission has recommended one
Ravindra Kumar Singh. One can notice
that copy of the Government Order dated
07th April 1998 was not annexed with the
said petition for perusal of the Court and it
was conveniently withheld and concealed
from the Court and thus prevented the
Court from noticing its contents, e.g. a
honorarium appointment was subject to
the
condition
of
giving
an
undertaking/declaration to vacate the post
immediately
on
a
regularly
selected
candidate being available. The Division
Bench, at the admission stage passed an
interim order dated 05th May 2000
(referred to in Para 23 to the above
mentioned first petition and annexed as
Annexure-8 to the said petition. Writ
Petition of Dr. V.K. Srivastava has been
directed
to
be
listed
in
the
week
commencing 10th July 2000. As mentioned
above, an interim order obtained by
concealing material Government Order
cannot be followed on the Principle of
parity.

34. It is evident that the said
Petitioner and others have not approached
the Court with clean hands in as much as
they have concealed material face, viz they
were required to and have actually given
an undertaking/declaration on oath on
stamp paper for not making any claim for
regular appointment or end of academic
session ending on 30th June, and walk out
immediately
on
a
regularly
selected
candidate
by
the
Commission
being
available.

The
Petitioner
has
conveniently
ignored to file a copy of the format in
which his appointment letter was to be
issued,(see Annexure-2 to the petitioner 2Pp25).

35. The present Petitioner as well as
the Petitioners in the above referred other
petitions have withheld as to whether they
had filed affidavit on stamp papers as
required under Para 3 of the Government
Order dated 07th April 1998 (Annexure-1
to the present Writ Petition -pp 20).
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
140
Apparently, all the honorarium appointees
were
required
to
file
undertaking/declaration for making no
claim for regular appointment vis-s-vis
regularly
selected
candidate
by
the
Commission being available or after 30th
June- when new 'honorarium assignment'
is to be made. There is a clear and well-
conceived attempt to misrepresent facts by
concealing relevant material and thereby
mislead the Court.

36.
The
concerned
educational
authorities required management of a Post
graduate Government aided institutions
affiliated to a State University to obtain an
'affidavit' on stamp in view of Para 3 of
the Government Order dated 07th April
1998. Copy of letter dated 21st May 1998
sent by Director of Higher Education, U.P.
to Government to Government aided postgraduate institutions referred to above
shows
that
format
of
application,
appointment and declaration (Anubandh)
were enclosed. Petitioners have not filed
copies of the above formats/documents
with the petition as perusal of these
documents would have clearly exposed
that honorarium appointee was required to
give a declaration that he shall get himself
automatically relived on 30th June or
earlier in case of a duly selected candidate
by the Commission being available and
that he shall make no claim in this respect.
Such persons, like the Petitioner, cannot be
permitted to resile from his undertaking
without
establishing
necessary
facts
necessary for withdrawing an admission.
There is no foundation for such a
withdrawal in the petition.

In view of the above, Petitioners are
not entitled to the relief claimed and the
Writ Petitions are liable to be dismissed
with costs.

In view of what has been stated above
earlier Writ Petition No. 39404 of 1999
having been filed by Dr. Sanjay Kumar
Singh has become infructuous. This fact
may be brought to the notice of the Bench
when said Writ Petition is listed Copy of
this judgment shall be kept on the record
of Writ Petition No. 39404 of 1999 (Dr.
Sanjay Kumar Singh versus State of U.P.
and others0.

For the reasons given above, the
above Writ Petition. Civil Misc. Writ
Petition No. 27220 of 2000 including all
other above referred writ petitions fail and
dismissed.

No order as to costs.

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