# Dr. Vikas Yadav v. State Of U.P. & Ors

- **Citation:** (2025) 7 ILRA 389
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-07
- **Case number:** Writ A No. 6849 of 2022
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-vikas-yadav-v-state-of-u-p-ors-53557
- **Pages:** 18

## Headnote

Avneesh Tripathi, C.S.C.

ISSUE FOR CONSIDERATION

Whether a Physical Training Instructor, serving
in the Harcourt Butler Technical University,
Kanpur, belongs to the academic cadre and a
teacher, entitling him to the benefit of Career
Advancement Scheme.
HEADNOTE
University Law - Harcourt Butler Technical
University Act, 2016 - Sections 3(5) and
390 INDIAN LAW REPORTS ALLAHABAD SERIES
46(1) - Bylaws of 1990 - Physical Training
Instructor - Classification - Whether
Teacher - Promotion under CAS - Held,
Yes - Mandamus issued.
The petitioner was appointed as a Physical
Training Instructor on 18.01.2007 in the then
Harcourt Butler Technological Institute, Kanpur.
Under the bylaws of 26.03.1965, the post fell
under the Technical Cadre. By amendment
dated 27.11.1990, the Board of Governors reclassified Physical Training Instructor under
Bylaw 2(b)(vii) as part of the Academic Cadre.
The Institute was incorporated as a University
under the U.P. Harcourt Butler Technical
University Act, 2016. Sections 3(5) and 46(1)
mandated that, until the First Ordinances are
made, the Rules, Memorandum and Bylaws of
the Society shall remain in force. Consequently,
employees of the erstwhile Institute continued
on the same terms and conditions.
Held, since the petitioner was appointed under
the 1990 Bylaws classifying the post of Physical
Training Instructor as Academic, he continues to
hold that status as a member of the academic
staff and a teacher within the meaning of
Section 3(5) read with Section 46(1) of the Act
of 2016. The contrary definition of "teacher" in
Section 2(20) must yield to the non obstante
clause in Section 46(1). Mandamus issued to
the University as well as the State Government
to extend the benefit of the CAS to the
petitioner, treating him as a member of the
academic staff and a teacher of the University.
(Paras 25 to 49) (E-5)
CASE LAW CITED
Managing Committee, Khalsa Middle School v.
Mohinder Kaur (Smt.) and Another, 1993 Supp
(4) SCC 26; P.S. Ramamohana Rao v. A.P.
Agricultural University and Another, (1997) 8
SCC 350; Malik Mazhar Sultan v. U.P. Public
Service Commission, (2006) 9 SCC 507; Smt.
Madhumita Pandey v. Union of India, 2024 (12)
ADJ 466 (DB)
List of Acts
U.P. Harcourt Butler Technical University Act,
2016, Ss. 2(20), 3(5), 46(1);
Societies Registration Act, 1860;
AICTE Regulations and Career Advancement
Scheme Guidelines
List of Keywords
University - HBTU Act 2016 - Physical Training
Instructor - Academic Cadre - Teacher - Career
Advancement Scheme - Bylaws of 1990 - Nonregistration - Legal force - Section 3(5) -
Section 46(1) - Mandamus - Re-classification
CASE ARISING FROM
Challenge to order dated 19.04.2022 of Vice
Chancellor, Harcourt Butler Technical University,
Kanpur, excluding petitioner and his Department
from consideration for promotion under CAS.
Appearances for Parties
Advs For Petitioner: V.K. Singh (Senior
Advocate), Pradeep Kumar Rai, Hritudhwaj
Pratap Sahi, Sankalp Narain, Devendra Kumar,
Krishna Mohan Misra, Kunal Ravi Singh, Manjari
Singh, Shivam Yadav.

Advs For Respondents: Avneesh Tripathi,
C.S.C., Girijesh Kumar Tripathi (Additional Chief
Standing Counsel).

## Text

_Characters 0–39,956 of 57,813. This is a partial read: ask again with offset=39956 for what follows._

7 All. Dr. Vikas Yadav Vs. State of U.P. & Ors.
389
made is extraneous as it is obviously made
applicable not only to the aided institutions
but also to all Government Departments as
well."

34. Besides, the petitioners did not
disclose the complete and correct facts
before this Court and apprising wrong facts
got interim order, therefore, this fact alone
may be the reason to dismiss these writ
petitions.

35. It has been consistent view of the
Apex Court that non-disclosure of material
facts and non-disclosure of relevant and
material documents with a view to obtain
undue advantage and favourable orders
from the Court amounts to deception and
playing fraud on the Court and such orders
would be nullity in the eyes of law.

36. Further, it is the duty of the
petitioners to disclose all the complete and
correct facts and annex all the relevant
documents before the Court and it is not
open for the petitioners to selectively
disclose facts and deliberately conceal and
suppress inconvenient facts from the Court.

37. In view of the facts and
circumstances as well as the case laws so
cited by the parties, these writ petitions
seeking
continuance
of
contractual
employment of the petitioners, granting
extension/
renewal
of
contractual
engagement under a Government project,
in violation of provisions of the amended
project, is not sustainable in the eyes of
law, therefore, these bunch of writ petitions
having no merits deserve to be dismissed
and the interim orders granted by this Court
deserve to be vacated.

38. It is made clear that whatever
honorarium has been paid to the petitioners
of the bunch of writ petitions would not be
recovered from them for the reason that
pursuant to the interim orders, they have
discharged
their
duties
and
received
honorarium.

39. Accordingly, these writ petitions
are dismissed.

40. Interim orders granted in the
aforesaid writ petitions shall stand vacated.

41. No order as to costs.
----------
(2025) 7 ILRA 389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2025

BEFORE

THE HON'BLE J.J.MUNIR, J.

Writ A No. 6849 of 2022
Connected With
Writ A No. 14778 of 2019

Dr. Vikas Yadav ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Hritudhwaj Pratap Sahi, Pradeep Kumar
Rai, Sankalp Narain

Counsel for the Respondents:
Avneesh Tripathi, C.S.C.

ISSUE FOR CONSIDERATION

Whether a Physical Training Instructor, serving
in the Harcourt Butler Technical University,
Kanpur, belongs to the academic cadre and a
teacher, entitling him to the benefit of Career
Advancement Scheme.
HEADNOTE
University Law - Harcourt Butler Technical
University Act, 2016 - Sections 3(5) and
390 INDIAN LAW REPORTS ALLAHABAD SERIES
46(1) - Bylaws of 1990 - Physical Training
Instructor - Classification - Whether
Teacher - Promotion under CAS - Held,
Yes - Mandamus issued.
The petitioner was appointed as a Physical
Training Instructor on 18.01.2007 in the then
Harcourt Butler Technological Institute, Kanpur.
Under the bylaws of 26.03.1965, the post fell
under the Technical Cadre. By amendment
dated 27.11.1990, the Board of Governors reclassified Physical Training Instructor under
Bylaw 2(b)(vii) as part of the Academic Cadre.
The Institute was incorporated as a University
under the U.P. Harcourt Butler Technical
University Act, 2016. Sections 3(5) and 46(1)
mandated that, until the First Ordinances are
made, the Rules, Memorandum and Bylaws of
the Society shall remain in force. Consequently,
employees of the erstwhile Institute continued
on the same terms and conditions.
Held, since the petitioner was appointed under
the 1990 Bylaws classifying the post of Physical
Training Instructor as Academic, he continues to
hold that status as a member of the academic
staff and a teacher within the meaning of
Section 3(5) read with Section 46(1) of the Act
of 2016. The contrary definition of "teacher" in
Section 2(20) must yield to the non obstante
clause in Section 46(1). Mandamus issued to
the University as well as the State Government
to extend the benefit of the CAS to the
petitioner, treating him as a member of the
academic staff and a teacher of the University.
(Paras 25 to 49) (E-5)
CASE LAW CITED
Managing Committee, Khalsa Middle School v.
Mohinder Kaur (Smt.) and Another, 1993 Supp
(4) SCC 26; P.S. Ramamohana Rao v. A.P.
Agricultural University and Another, (1997) 8
SCC 350; Malik Mazhar Sultan v. U.P. Public
Service Commission, (2006) 9 SCC 507; Smt.
Madhumita Pandey v. Union of India, 2024 (12)
ADJ 466 (DB)
List of Acts
U.P. Harcourt Butler Technical University Act,
2016, Ss. 2(20), 3(5), 46(1);
Societies Registration Act, 1860;
AICTE Regulations and Career Advancement
Scheme Guidelines
List of Keywords
University - HBTU Act 2016 - Physical Training
Instructor - Academic Cadre - Teacher - Career
Advancement Scheme - Bylaws of 1990 - Nonregistration - Legal force - Section 3(5) -
Section 46(1) - Mandamus - Re-classification
CASE ARISING FROM
Challenge to order dated 19.04.2022 of Vice
Chancellor, Harcourt Butler Technical University,
Kanpur, excluding petitioner and his Department
from consideration for promotion under CAS.
Appearances for Parties
Advs For Petitioner: V.K. Singh (Senior
Advocate), Pradeep Kumar Rai, Hritudhwaj
Pratap Sahi, Sankalp Narain, Devendra Kumar,
Krishna Mohan Misra, Kunal Ravi Singh, Manjari
Singh, Shivam Yadav.

Advs For Respondents: Avneesh Tripathi,
C.S.C., Girijesh Kumar Tripathi (Additional Chief
Standing Counsel).

(Delivered by Hon'ble J.J. Munir, J.)

1. By this common judgment, we
propose to decide the present writ petition
and connected Writ-A No.14778 of 2019.
Writ-A No.6849 of 2022 has been heard as
the leading case. Facts shall be noticed
from the leading case.

2. This petition is directed against an
order of the Vice Chancellor, Harcourt
Butler Technical University, Kanpur dated
19.04.2022, to the extent alone that it
excludes the petitioner and his Department
wholesomely
from
the
benefit
of
consideration for promotion under the
7 All. Dr. Vikas Yadav Vs. State of U.P. & Ors.
391
Career Advancement Scheme (for short,
'CAS'). The petitioner has further prayed
that this Court do issue a mandamus,
commanding the Vice Chancellor to
consider his case for extension of the
benefit of CAS, in the same manner, as in
the case of teaching staff of other
Departments of the University.

3. The Harcourt Butler Technical
University,
Kanpur
(for
short,
'the
University') was established by an Act of
the State Legislature, called the Uttar
Pradesh
Harcourt
Butler
Technical
University Act, 2016 (U.P. Act No.11 of
2016) (for short, 'the Act of 2016'). Prior to
its incorporation, the University had a
predecessor
establishment,
called
the
Harcourt Butler Technological Institute,
Kanpur (for short, 'the Institute'). The
Institute was affiliated to the Kanpur
University. The affairs of the Institute were
controlled and regulated by a Society,
called the Harcourt Butler Technological
Institute (Kanpur) Society (for short, 'the
Society'). The Society was registered under
the Societies Registration Act, 1860 and
had its bylaws to manage its affairs,
including the Institute.

4. The petitioner applied for the post
of a Physical Training Instructor advertised
by the Institute vide advertisement dated
27.01.2006. In due course, he was selected
and appointed as a Physical Training
Instructor with the Institute vide letter of
appointment dated 18.01.2007. At the time,
the petitioner was selected and appointed,
the bylaws of the Institute included the post
of the Physical Training Instructor in the
cadre of the academic staff. There were
broadly five cadres of staff serving the
Institute. These were - (a) academic and
administrative; (b) academic; (c) teaching
supporting;
(d)
technical;
and,
(e)
administrative non-teaching. A moreful
reference to the relevant bylaw, defining
the posts included within the cadre of the
academic staff and the other cadres, shall
be made later in this judgment.

5. According to the petitioner, he
joined service on 03.02.2007 and his record
is unblemished. The cause of action for the
petitioner arose as he was denied the same
benefits, including the pay-scale that were
given to the other teaching staff of the
University. Aggrieved by this denial, which
the petitioner calls arbitrary, he instituted
Writ-A No.14778 of 2019 (the connected
writ petition) against the University,
praying that a mandamus be issued to the
University to grant the petitioner status/
designation as per U.G.C./ A.I.C.T.E.
norms,
including
the
grade
pay
of
Rs.6000/- (Sixth Pay Commission). He also
claimed arrears, promotion etc. and other
benefits, attached to the post, since the time
of his initial appointment. These benefits
were all claimed by the petitioner, treating
himself to be a part of the cadre of the
teaching staff.

6. A notice of motion was issued in
the said writ petition, but no counter
affidavit was filed, in answer, on behalf of
any of the respondents.

7. Writ-A No.14778 of 2019 was
directed to come up along with the leading
writ petition vide order dated 12.05.2022
and treated as a connected case vide order
dated 12.12.2022. The said writ petition is
still pending.

8. Pending the last mentioned writ
petition, on 06.02.2020 a letter was sent by
the Vice Chancellor of the University to all
Heads of the Departments saying that they
were required to submit the details of all
392 INDIAN LAW REPORTS ALLAHABAD SERIES
teaching staff serving in their respective
Departments in the proper format, so that
benefit of the CAS may be extended to
them. Acting on the Vice Chancellor's letter
of 6th February, last mentioned, the
petitioner moved a representation dated
29.02.2020
to
the
Registrar
of
the
University, filling in his application/
representation in the requisite format; by
this
application/
representation,
the
petitioner sought extension of benefit of the
CAS.

9. No action was taken by the Vice
Chancellor or any other Authority of the
University
on
the
above
mentioned
application. The Registrar of the University
addressed a letter to all Heads of
Departments of the University, requiring
them to submit details of all the teaching
staff
serving
in
their
respective
Departments,
for
the
purpose
of
consideration under the CAS, as directed
by the Vice Chancellor. The petitioner
made a representation dated 10.09.2021 in
the prescribed format, seeking extension of
the benefit of the CAS. The petitioner says
that much to his dismay, the Vice
Chancellor
passed
an
order
dated
19.04.2022, requiring the Registrar to issue
interview letters to teaching staff of all
Departments, excluding the petitioner's
Department, to wit, the University's
Student Activity Council, calling those
invited to interview to appear before the
Selection Committee for a consideration
for promotion under the CAS. The
petitioner was excluded from the list of
interviewees for the CAS. It is to the
extent that the Department, which the
petitioner serves, has been excluded from
consideration for promotion under the
CAS, including the petitioner that he
seeks to challenge the Vice Chancellor's
order dated 19.04.2022.

10. It may be remarked here that for
reasons, more than obvious, the cause of
action involved in Writ-A No.14778 of
2019 stands subsumed in that involved in
the present writ petition.

11. A notice of motion was issued vide
order dated 12.05.2022. In course of time,
parties have exchanged affidavits. The
petition was admitted to hearing on
26.04.2024, which proceeded forthwith on
that day, and, thereafter, on a number of
days.
On 08.01.2025,
judgment
was
reserved.

12. Heard Mr. V.K. Singh, learned
Senior Advocate assisted by Mr. Pradeep
Kumar Rai, learned Counsel for the
petitioner, Mr. Avneesh Tripathi, learned
Counsel appearing on behalf of respondent
Nos.2 and 3 and Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel appearing on behalf of the State.

13. The moot question involved in this
petition is whether a Physical Training
Instructor, serving in the University,
belongs to the academic cadre and a
teacher, entitling him to the benefit of CAS.

14. Mr. V.K. Singh, learned Senior
Advocate
has
advanced
elaborate
submissions to canvass the point that the
post of a Physical Training Instructor,
though prior to 27.11.1990, was a technical
post under the bylaws of the Institute then
in force, the bylaws were amended by the
Board
of
Governors
on
27.11.1990,
including it in the cadre of teaching posts.
The Institute, at the relevant time, was
governed by the Society and the amended
bylaws were sent to the Registrar, Firms,
Societies and Chits. He submits that there
is no requirement of registration of the
bylaws and upon communication of the
7 All. Dr. Vikas Yadav Vs. State of U.P. & Ors.
393
amended
bylaws
by
the
Board
of
Governors, acting for the Society, then
governing the University's predecessor, to
wit, the Institute, the bylaws came into
force. He has been at pains to point out that
after the incorporation of the Institute and
its Society into a University under the Act
of 2016, Section 46(1) provides that the
First Ordinance of the University shall be
made by the Executive Council, and so
long as the First Ordinance is not made, the
rules, memorandum and bylaws of the
Society shall have legal force. The bylaws
etc. of the Society, that would have force in
the University, would be those as were
immediately
in
force
before
the
commencement of the Act of 2016.

15. He has further drawn the Court's
attention to Section 3(5) of the Act of 2016
to submit that except for the posts of the
Director,
the
Deputy
Director,
the
Registrar, the Deputy Registrar and the
Assistant Registrar of the Institute, all other
persons employed by the Institute shall
continue on the same terms and conditions,
notwithstanding anything to the contrary
contained in any other provisions of the Act
of 2016. He also emphasizes that under
Section 3(5), the changed terms of
employment under the Act would apply to
an employee of the Institute, who becomes
an employee of the University upon
incorporation under the Act of 2016, only if
he opts for the University's terms and
conditions of employment.

16. It is submitted by the learned
Senior Advocate that since the University
have still not made their First Ordinance,
the effect of Section 46(1) of the Act of
2016 would be that the bylaws of the
Institute would continue to govern and
regulate the service conditions and status
etc. of the petitioner and other employees
of the University. Since, the petitioner,
under the bylaws dated 27.11.1990 framed
by the Institute, stands included in the
academic staff, the petitioner's status as a
member of the academic staff of the
University, would continue. It could change
only if the University were to frame
ordinances and regulations different from
the bylaws and the petitioner opted to be
governed by the University's terms and
conditions of employment. Since neither of
the things have happened, the petitioner is
entitled to be treated as part of the
University's academic staff, that is to say, a
teacher and dealt with as such in the matter
of his service entitlement as to promotion
etc.

17. It is particularly argued by Mr.
V.K.
Singh
that
the
petitioner's
appointment was made after enforcement
of the new bylaws made by the Institute,
i.e. on 27.11.1990, and according to the
classifications of posts mentioned under the
amended bylaws, the post of a Physical
Training Instructor would fall in the
category of academic staff, a status that is
protected for the petitioner by virtue of
Section 46(1) of the Act of 2016. It is also
argued by the learned Senior Advocate that
the duties and functions assigned to the
petitioner are akin to those of the teaching
staff in the University. He has enumerated
during the hearing some of those functions
and duties in order to drive home the point
that the petitioner is substantially, after all,
a teacher - a part of the academic staff of
the University.

18. Resisting the petitioner's claim, it
is submitted by Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel, appearing on behalf of the State
and Mr. Avneesh Tripathi, learned Counsel
appearing on behalf of the University, that
394 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner has been appointed on
19.10.2006 in terms of Advertisement No.2
of 2006 to a non-teaching post in the pay
scale of Rs.8000-275-13500/-. He has
received salary all along relating to a nonteaching post approved by the Finance
Department of the State Government. It is
argued that despite classification of the
posts, to which the petitioner was appointed
as a non-teaching post, he claims benefit of
the CAS, which is meant exclusively for
teachers. The petitioner is in no way a
teacher under the Act of 2016 nor the post
sanctioned by the State Government, to
which he has been appointed a teaching
post.
The
impugned
order
dated
19.04.2022, excluding the petitioner from
consideration under the CAS, regarding
him a non-teacher, is perfectly valid in law.
It is emphasized by Mr. Girijesh Kumar
Tripathi that the post of Physical Training
Instructor was advertised and classified as a
non-teaching and non-academic post in the
year 2006, when the petitioner was
appointed. The petitioner accepted these
terms at the time of joining. He is now
estopped from saying that he, under the
bylaws which have force of law, entitled to
be treated a teacher and considered for
promotion under the CAS.

19. It is argued by Mr. Girijesh Kumar
Tripathi that the petitioner's claim is
untenable as the post of Physical Training
Instructor has already been classified as
non-teaching
and
non-academic.
Any
amendment or decision by the University to
re-classify the post as academic lacks
validity, inasmuch as no prior approval
from the State Government, which is
mandatory for such a change, was ever
sought or granted. The State Government is
not liable for the University's unilateral
change in status of the post, without the
Government's consent. The matter of the
post of Physical Training Instructor being
re-classified as an academic post, through
an amendment to the Society's bylaws in
the year 1990, which govern the Institution,
was never brought before the State
Government for approval, much less
approved. The post of Physical Instructor
has remained a non-teaching and nonacademic
post
under
the
State
Government's classification. It is also
emphasized that in the year 2015, a
proposal by the University to re-name the
post of Physical Instructor as Assistant
Director (Physical Education) was rejected
by the State Government through their
order dated 09.07.2015. It is, in the last,
submitted that the petitioner, who holds a
non-teaching
post,
is
ineligible
for
promotion under the CAS or to receive any
remuneration as such, which is reserved
exclusively for the teaching staff.

20. We have carefully considered the
submissions advanced on behalf of the
learned Counsel for the parties.

21. It is true that in the advertisement
dated 21.07.2006, the petitioner's post was
advertised as part of teaching supporting/
administrative post and not a teaching post.
Rather, the teaching posts were separately
advertised in the same advertisement in
Part A whereas teaching supporting/
administrative post, to which the petitioner
belonged, was advertised in Part B. The
petitioner
was
appointed
apparently,
according to the advertisement, on a nonteaching post. But the question is, would
the advertisement be conclusive about the
nature of the post held. If under the Act,
Ordinance, Regulations applicable to the
University or the bylaws applicable to the
Institute when the petitioner was appointed,
the post against which the petitioner was
appointed, is a teaching post, its description
7 All. Dr. Vikas Yadav Vs. State of U.P. & Ors.
395
in the advertisement would apparently not
prevail.

22. The principle that in case of an
inconsistency between an advertisement
and the recruitment rules, the rules prevail,
has come to be well accepted. Reference in
this connection may be made to Malik
Mazhar Sultan and another v. U.P.
Public Service Commission and others,
(2006) 9 SCC 507, where it has been held:

"21. The present controversy has
arisen as the advertisement issued by PSC
stated that the candidates who were within
the age on 1-7-2001 and 1-7-2002 shall be
treated within age for the examination.
Undoubtedly, the excluded candidates were
of eligible age as per the advertisement but
the recruitment to the service can only be
made in accordance with the Rules and the
error, if any, in the advertisement cannot
override the Rules and create a right in
favour of a candidate if otherwise not
eligible according to the Rules. The
relaxation of age can be granted only if
permissible under the Rules and not on the
basis
of
the
advertisement.
If
the
interpretation of the Rules by PSC when it
issued the advertisement was erroneous, no
right
can
accrue
on
basis
thereof.
Therefore, the answer to the question
would turn upon the interpretation of the
Rules."

(emphasis by Court)

23. Malik Mazhar Sultan (supra) has
been followed by a Bench of our own
Court in Smt. Madhumita Pandey v.
Union of India and others, 2024 (12)
ADJ 466 (DB), where it has been held:

"15.
To
address
the
said
question, we are required to have a quick
survey of the statutory rules, advertisement
and the notifications issued from time to
time on the said subject. Record reveals
there exist Service Rules for Postal Gramin
Dak
Sevak
for
recruitment
of
Sub
Postmasters
and
Branch
Postmasters
prescribing qualification of matriculation
or equivalent examination. Though we find
that the advertisement does not speak about
any equivalence barring the qualification
of matriculation but what is relevant is the
statutory
rules
which
would
in
all
eventualities prevail in case of any
inconsistency with the advertisement where
the
recruitment
rules
prescribe
for
equivalent qualification. The said aspect is
no more res integra as the same stands
crystallized in the case of Ashish Kumar v.
State of Uttar Pradesh, 2018 (3) SCC 55,
wherein the following was observed.-

"27.
Any
part
of
the
advertisement which is contrary to the
statutory rules has to give way to the
statutory prescription. Thus, looking to the
qualification prescribed in the statutory
rules, the appellant fulfils the qualification
and after being selected for the post
denying appointment to him is arbitrary
and illegal. It is well-settled that when
there is variance in the advertisement and
in the statutory rules, it is the statutory
rules which take precedence."

16. Recently the Hon'ble Supreme
Court in the case in Civil Appeal No. 152
of 2022 the Employee State Insurance
Corporation Ltd. v. Union of India
decided on 20.1.2022 held as under :

"It is settled law that if an
advertisement is inconsistent with the
recruitment rules, the rules would prevail,
as held by this Court in Malik Mazhar
Sultan and another v. U.P. Public Service
396 INDIAN LAW REPORTS ALLAHABAD SERIES
Commission and others, 2006 (9) SCC
507."

17. Applying the principles of
law as culled out in the above noted
decision in the facts of the present case, an
irresistible conclusion stands drawn that the
recruitment rules will have precedence over
the advertisement and the advertisement is
to yield before the recruitment rules."

24. It is true that the above principles
have been laid down in the context of a
conflict about the prescribed qualification
or
the
eligibility
age
between
the
recruitment rules and the advertisement and
here
the
conflict
is
between
the
advertisement and rules that speak about
the nature of the post, to which the
petitioner was appointed. If the rules say
that the nature of the post is of one kind
and the advertisement says it is of the other,
the principle as to overriding effect of the
recruitment rules as to qualification etc.,
vis-a-vis the advertisement, would equally
apply to a case of this kind.

25. The next question to be examined
is: What is the nature of the post held by
the petitioner, teaching or non-teaching? It
is not in cavil of any kind that the petitioner
was
appointed
a
Physical
Training
Instructor after applying on the basis of an
advertisement that mentioned the post to be
a non-teaching one. We have already
noticed that the University had for its
predecessor the Institute, which was
governed by a Society registered under the
Societies Registration Act. It is not in
dispute also that the bylaws of the Society,
registered on 26.03.1965, provided for
classification of members of the staff,
marshalling them into five categories.
Bylaws 2(a), 2(b), 2(c), 2(d) and 2(e) spelt
out these five categories as: (a) Academic
& Administrative; (b) Academic; (c)
Industrial Research Wing; (d) Technical;
and, (e) Administrative, respectively. The
post of a Physical Training Instructor,
under the bylaws dated 26.03.1965, fell
under the Technical Category. A copy of
the relevant part of these bylaws are
annexed as Annexure No.1 to the
supplementary rejoinder affidavit. The
classification of the Institute's staff was
re-structured
vide
bylaws
dated
27.11.1990 passed by the Board of
Governors of the Institute, which were
duly submitted to the Registrar, Firms,
Societies and Chits. A perusal of bylaw
2 of the amended bylaws of the Institute
dated 27.11.1990 shows the changed
classification of members of the staff as
follows:

"2.
CLASSIFICATION
OF
MEMBERS OF THE STAFF OF THE
INSTITUTE

Except in Case of employees paid
from contingencies, the members of the
staff of the Institute shall be classified as
follows:

(a) Academic and Administrative.

i) Principal/Director

(b) Academic

i) Professor including Professor,
Training & Placement

ii) Associate Professor, if any,

iii) Reader/Assistant Professor,

iv) Lecturer,

v) Workshop Superintendent,
7 All. Dr. Vikas Yadav Vs. State of U.P. & Ors.
397

vi)
Asstt.
Workshop
Superintendent

vii) Physical Training Instructor,
if any

viii) Teaching/Research Assistant

ix) Such other academic staff as
may be decided by the Board.

(c) Teaching supporting

i) Computer Systems Manager

ii) Computer Programmer

iii) Technical Assistants

iv) Demonstrators

v)
Workshop
Instructors/Instructors

vi) Computer Operators

vii) Computer Data Operators

(d) Technical

i) Forman,

ii) Supervisor (Workshop),

iii) Mechanics

iv) Horticultural Assistant, if any

v) Draftsman, and

vi) Such other technical staff as
may be decided by the Board.

(e)
Administrative
(NonTeaching)

i) Registrar

ii) Deputy Registrar

iii)
Assistant
Registrar/Head
Assistant

iv) Accounts Officer,

v) Audit Officer, if any,

vi) Stores or Purchase Officer, if
any,

vii) Estate Officer, if any,

viii) Medical Officer, if any,

ix) Engineer (Executive/Assistant)

x) Librarian,

xi) Deputy Librarian, if any,

xii) Assistant Librarian, if any,

xiii) Such other administrative
staff as may be decided by the Board."

26. It is evident that under the
amended bylaws of the Institute, amended
way back on 27.11.1990, the post of
Physical Training Instructor was included
in the cadre of teaching staff after removing
it from the Technical Cadre. It is not
disputed by either party that these amended
bylaws of 1990 were framed by the
Institute. It is, however, strenuously argued
on behalf of the State and the University by
their learned Counsel that the bylaws dated
27.11.1990 never took effect for reason that
these were not registered by the Registrar,
Firms, Societies and Chits. In the counter
affidavit, that has been filed by the
University, a photostat copy of a certified
398 INDIAN LAW REPORTS ALLAHABAD SERIES
copy of the bylaws issued by the Deputy
Registrar, Firms, Societies and Chits,
Kanpur has been appended. A perusal of
this copy shows that while this document
was on record of the Deputy Registrar,
Firms, Societies and Chits, Kanpur, there is
a rubber stamp seal, endorsing the fact that
this document is placed on the Society's
file, but not registered under the relevant
sections of the Societies Registration Act,
1860.

27. Now, an amendment to the bylaws
once duly passed, if not registered by the
Registrar of Societies, would render them
without legal force, is the next issue to be
examined. The question, which this issue
postulates, is no longer res integra in view
of Managing Committee, Khalsa Middle
School and another v. Mohinder Kaur
(Smt) and another, 1993 Supp (4) SCC
26. In Khalsa Middle School (supra), it
has been held by the Supreme Court:

"10. Apart from the requirement
contained in Section 12-A for registration
of the change of name of a society with the
Registrar, there is no requirement in the
Societies Registration Act which requires
registration of any amendment in the
Memorandum of Association or the Rules
and Regulations of a society to be
registered with the Registrar. Even in the
Companies Act, 1956 a distinction is made
in
the
matter
of
alteration of
the
Memorandum of Association and alteration
of the Articles of Association. Under
Section 18 of the Companies Act, it is
necessary
that
the
alteration
of
Memorandum of Association be registered
with the Registrar of Companies within the
prescribed period and the alteration takes
effect from the date of its registration and
under Section 19(1), it is provided that the
alteration shall have effect only if it has
been duly registered in accordance with the
provisions of Section 18. There is no such
requirement with regard to registration of
the alteration in the Articles of Association
of the company. Here we are concerned
with the amendment in the Rules and
Regulations of the Society. In the absence
of any requirement in the Societies
Registration Act that the alteration in the
Rules and Regulations must be registered
with the Registrar, it cannot be held that
registration of the amendment is a
condition precedent for such an alteration
to come into effect. ... ........."

28. There is nothing brought to the
notice of the Court about any statutory
change in the State of Uttar Pradesh to
Sections 12A to 12D or elsewhere, that
may have the effect of altering the statutory
basis in the context whereof the Supreme
Court laid down the above noted principle
in Khalsa Middle School. The inevitable
consequence is that there is no requirement
whatsoever for the Registrar to register a
change to the bylaws of the Society or its
rules or regulations by whatever name
called. Also, the absence of registration of
any amendment to the bylaws of a Society,
made by its managing body would not
deprive the amended bylaws of their legal
efficacy and force. We, therefore, have to
conclude that the bylaws dated 27.11.1990,
notwithstanding non-registration by the
Registrar, Firms, Societies and Chits,
would still have legal force and bind parties
as well as Authorities obliged to act under
the amended bylaws.

29. When the Institute was effaced out
of existence and born as a University upon
incorporation under the Act of 2016, the
bylaws in force in the Institute, relating to
classification of members of the staff, were
those made on 27.11.1990, which classified
7 All. Dr. Vikas Yadav Vs. State of U.P. & Ors.
399
Physical Training Instructor under bylaw
2(b) vii) under the category of academic
staff.

30. Section 46(1) of the Act of 2016
provides:

"46. (1) The First Ordinances of
the University shall be made by the
Executive Council, and so long as the First
Ordinances are not made, the Rules,
Memorandum, Leave Regulations Conduct
Rules and Bye Laws of Harcourt Butler
Technological Institute (Kanpur) Society
shall be in force before the commencement
of this Act. The students rules shall be same
as
those
mentioned
in
Information
Brochure of the preceding Academic
Session just before the commencement the
Act in the absence of First Ordinances."

31. At the same time, Section 3(5) of
the Act of 2016 says:

"3.
Incorporation
of
the
University. -

(5) Every person employed by
Harcourt Butler Technological Institute,
Kanpur,
immediately
before
the
commencement of this Act, shall hold his
office or service in the University, except to
Director,
the
Deputy
Director,
the
Registrar, the Deputy Registrar and the
Assistant Registrar, on the same terms and
conditions, notwithstanding anything to the
contrary contained in any other provisions
of this Act and unless changed, including
leave, pension, gratuity, provident fund etc.
and other matters, as he would have held
by him before the commencement of this
Act, shall continue to hold as such unless
and until his employment is terminated or
he opts for the University's terms and
conditions of employment;"

32. A conjoint read of bylaws 2. (b)
vii) of the bylaws of 1990 made by the
Institute, together with Sections 46(1) and
3(5) of the Act of 2016, would lead to the
inevitable conclusion that so long as the
First Ordinances of the University are not
made, the rules, memorandum and bylaws
of the Institute, as in force before the
commencement of the Act of 2016, shall
continue to remain in force in the
University.
As
far
as
an
employee
appointed to the Institute, immediately
before the commencement of the Act of
2016 is concerned, he will hold office or
service in the University on the same terms
and conditions as he would have held
before
commencement
of
the
Act,
notwithstanding anything to the contrary
contained in any other provision of the Act
of 2016. There are, thus, two distinct
propositions that emerge from a conjoint
reading of the bylaws and the two
provisions of the Act of 2016. The first is
about the conditions of service of persons
in the University, who were employed
before incorporation of the Institute into the
University under the Act of 2016, and, the
other,
is
about
persons,
who
were
employed in the University after its
incorporation. We need not go into the
question as to what would be the effect of
the bylaws relating to service as regards
persons who were employed by the
University after its incorporation for that
does not arise on the facts here.

33. So far as persons employed by the
Institute before incorporation thereof as a
University under the Act of 2016 are
concerned, the provisions of Section 3(5) of
the Act of 2016 are unambiguous. The
terms and conditions of service for persons
employed
in
the
Institute
after
incorporation into the University would
remain unchanged and they would hold
400 INDIAN LAW REPORTS ALLAHABAD SERIES
their post on the same terms and conditions
as applicable prior to incorporation. The
terms
and
conditions
of
service
of
employees of the Institute, who have
subsequently become employees of the
University, are insulated from any change
to their conditions of service, provided
under the Act of 2016, by a non obstante
clause occurring in Section 46(1). Thus, for
employees of the Institute, who have come
into harness of the University upon the
Institute's incorporation under the Act of
2016, the bylaws governing their terms and
conditions are unaffected by any provision
of the Act, providing to the contrary. The
bylaws
governing
their
terms
and
conditions of service are immutable.

34. Since the petitioner, under the
amended bylaws of 1990, held a post that
was classified as academic, the provisions
to the contrary in the Act would not affect
the petitioner's status. It is no doubt true
that under Section 2(20) of the Act of 2016,
a teacher is defined as follows:

"2. Definitions. - In this Act,
unless the context otherwise requires,-

(20)
"Teacher"
means
a
Professor, Associate Professor or Assistant
Professor working in the University;"

35. The said definition would not
certainly
include
a
Physical
Training
Instructor, but, as already remarked, the
petitioner's position as a member of the
academic staff and a fortiori a teacher in the
University, cannot be questioned because for
him being under bylaw 2. (b) vii), classed as
a member of the academic staff along with
professors, associate professors, assistant
professors, lecturers etc. To the above extent,
the definition of a teacher under Section 2
(20) of the Act of 2016 would have to yield
to the non obstante clause under Section
46(1) of the said Act.

36. There is no doubt, a very persuasive
submission made by Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel on behalf of the State, when he says
that there are no lectures or teaching activity,
or teaching assignments given to a Physical
Training Instructor in the University, which
does not run a course in Bachelor of Physical
Education (BPEd) or Master of Physical
Education (MPEd). He submits that the
University is an all out technical University,
which teaches engineering alone to their
students, leading to degrees in engineering;
not physical education. The argument though
attractive, a little more than on the first blush,
but, regrettably, cannot be accepted.

37. Physical education may not be a
subject, which is of the essence of a degree in
engineering of any grade, which the
University confers after a candidate has
successfully pursued his course of study, but
it is nevertheless a part of the academic
curriculum. Education is not acquisition of
proficiency in a particular subject, but a
process which leads to realization of the
individual's personality. It is a multifaceted
process; not a commando target to be hit and
won. In paragraph No.43 of connected WritA No.14778 of 2019, the petitioner has
pleaded specifically the nature and particulars
of his duties. Paragraph No.43 of Writ-A
No.14778 of 2019 reads:

"43. That petitioner respectfully
submits that the duties and functions assigned
to him are akin to the duties of the teaching
staff in the institution he has multifarious
duties some of which are as under:-

A) To arrange games and sports
daily in the evening for the students.
7 All. Dr. Vikas Yadav Vs. State of U.P. & Ors.
401

B) To look after the procurement
of sports materials and maintenance of the
sports grounds.

C) To arrange inter branch and
Inter collegiate tournaments.

D) To accompany the students
teams of Inter University/Inter Club/
District Level Tournaments

E) To teach the students about the
rules of various games and sports

F) To teach the students various
skills technique and tactics of these games
apart from the rules applicable to these
games.

G)
Conduct
Induction
programme (As per AICTE Mandate) of
new entrant of institutions/ Universities.
The
programme
is
compulsory
for
(Improving Student learning (1.1.2.1) for
first year B.Tech in sports classes of 1.30
hours daily and compulsory for all 1st Year
B.Tech Students.

H) Award General Proficiency
marks to students on the basis of evaluation
in sports and related games and activity
which is mentioned in every B.Tech Student
mark sheet in term of G.P. Marks in
support of above said contention petitioner
is
herewith
attaching
correspondents
between him and University authority
whereby he is being asked to provide G.P.
Marks
this
correspondence
is
dated
4.6.2018, 21.06.2018, 11.12.2018 and
2.1.2019 which all are jointly being
attached
herewith
and
marked
as
Annexure No.27 to this petition."

38. A letter dated 02.01.2019, annexed
to the aforesaid writ petition as Annexure
No.27, shows that the petitioner evaluates
students of the B.Tech. and MCA courses
of the University for general proficiency
under student activities, awarding them
marks, which are claimed to be in partial
fulfillment of their courses leading to a
degree.