# Gobari Yadav & another v. District Inspector of Schools, Deoria and others

- **Citation:** (2008) 1 ILRA 303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-29
- **Case number:** Special Appeal No.690 of 2007
- **Bench:** Dr. B.S. Chauhan, Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gobari-yadav-another-v-district-inspector-of-schools-deoria-and-others-41065
- **Pages:** 7

## Headnote

Constitution of India Art. 226-Payment
of
Salary-
petitioner/
Appellants
appointed on the post of peon in
recognized
Inter
Mediate
Collegewithout advertisement without following
the
procedure
for
appointment
in
consonance of provisions Article 14 and
16 of Constitution-Single Judge declined
to interfere-even in appeal inspite of
time granted to produce the documents
relating to their appointment-No reply
given in counter affidavit allegation of
forged
appointment
letter-not
controverted-No relief can be granted.

Held: Para 18 & 19

Therefore,
it
is
evident
that
any
appointment made without advertising
the vacancy cannot be held to be in
conformity with the mandate of Articles
14 and 16 of the Constitution of India
and is a nullity.

Appellants claim their appointments in
the year 1991 when the 1985 rules were
already in force. Even otherwise, if no
statutory
Rules
providing
for
the
procedure of selection exist, selections
have to be based on a fair procedure and
304 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
in consonance with Articles 14 and 16 of
the Constitution of India. It is for this
reason that this Court had called upon
the appellants to file an affidavit to
support the selections on the strength of
any advertisement or any other process
which could justify the adoption of a fair
selection process. In spite of lapse of
almost 9 months, no affidavit has been
filed nor any material has been brought
on
record
to
substantiate
the
presumption of a fair procedure of
selection. On account of this lapse on the
part of the appellants, it is difficult for us
to assume that the appointment of the
appellants was made in accordance with
law.
Case law discussed:
1987 UPLBEC 553, 1993 ESC 265, AIR 1992
SC 789, AIR 1992 SC 2130, (1996) 6 SCC 216,
AIR 1987 SC 1227, AIR 1998 SC 331, (2000) 9
SCC 405, (2000) 10 SCC 82, (2004) 8 SCC
353, AIR 2005 SC 2103, AIR 2006 SC 2319,
2008 AIR SCW 704, (2006) 4 SCC 1, AIR 2006
SC 1165

## Text

1 All] Gobari Yadav and another V. D.I.O.S., Deoria and others
303
directing their impleadment in the writ
petition and notices being issued to them
afresh on restoration of the writ petition to
its original number, which is of the year
1998, would only prolong the dispute for
many more years.

24. In such circumstances, we feel it
appropriate to dispose of the present writ
petition as well as the appeal with liberty
to petitioner to approach the Board of
Directors of the Bank itself at the first
instance in respect of the grievance raised
qua his super session with specific
reference to the reasons recorded herein
above by us qua the criteria to be applied
in the case of seniority-cum-merit.

25. Accordingly, the petitioner is
granted liberty to file his representation
ventilating all his grievances before the
Chairman of the Bank within two weeks
from today alongwith certified copy of
this order as well as Photostat copies of
the judgment in support of his claim. On
such representation being filed, the
Chairman of the Bank shall place the
same before the Board of Directors,
which may, after affording opportunity of
hearing to the parties concerned, take
fresh decision in the matter strictly in
accordance with law by means of a
reasoned
speaking
order,
preferably
within eight weeks thereafter.

26.

With
the
aforesaid
observations/directions the present special
appeal is disposed of finally.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE RAJES KUMAR, J.

Special Appeal No.690 of 2007

Gobari Yadav & another ...Appellants
Versus
District Inspector of Schools, Deoria and
others

...Respondents

Counsel for the Appellants:
Sri R.C. Singh

Counsel for the Respondents:
S.C.

Constitution of India Art. 226-Payment
of
Salary-
petitioner/
Appellants
appointed on the post of peon in
recognized
Inter
Mediate
Collegewithout advertisement without following
the
procedure
for
appointment
in
consonance of provisions Article 14 and
16 of Constitution-Single Judge declined
to interfere-even in appeal inspite of
time granted to produce the documents
relating to their appointment-No reply
given in counter affidavit allegation of
forged
appointment
letter-not
controverted-No relief can be granted.

Held: Para 18 & 19

Therefore,
it
is
evident
that
any
appointment made without advertising
the vacancy cannot be held to be in
conformity with the mandate of Articles
14 and 16 of the Constitution of India
and is a nullity.

Appellants claim their appointments in
the year 1991 when the 1985 rules were
already in force. Even otherwise, if no
statutory
Rules
providing
for
the
procedure of selection exist, selections
have to be based on a fair procedure and
304 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
in consonance with Articles 14 and 16 of
the Constitution of India. It is for this
reason that this Court had called upon
the appellants to file an affidavit to
support the selections on the strength of
any advertisement or any other process
which could justify the adoption of a fair
selection process. In spite of lapse of
almost 9 months, no affidavit has been
filed nor any material has been brought
on
record
to
substantiate
the
presumption of a fair procedure of
selection. On account of this lapse on the
part of the appellants, it is difficult for us
to assume that the appointment of the
appellants was made in accordance with
law.
Case law discussed:
1987 UPLBEC 553, 1993 ESC 265, AIR 1992
SC 789, AIR 1992 SC 2130, (1996) 6 SCC 216,
AIR 1987 SC 1227, AIR 1998 SC 331, (2000) 9
SCC 405, (2000) 10 SCC 82, (2004) 8 SCC
353, AIR 2005 SC 2103, AIR 2006 SC 2319,
2008 AIR SCW 704, (2006) 4 SCC 1, AIR 2006
SC 1165

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. The appellants preferred the writ
petition, which has given rise to this
Special Appeal, claiming payment of
salary as Peon in an Intermediate College,
which is duly recognised and governed by
the provisions of the U.P. Intermediate
Education Act, 1921 and the Regulations
framed thereunder read with U.P. Act No.
14 of 1974 (Payment of Salary Act). The
claim was founded on the strength of
letters
of
appointment
which
are
annexures 1 and 2 respectively to the writ
petition. The said letters of appointment
are stated to have been issued by the
Principal of the institution, who is the
Appointment Authority. The matter was
taken up by the District Inspector of
Schools at the time of grant of financial
sanction on which a query was raised by
the District Inspector of Schools calling
upon
the
Principal
to
furnish
the
documents
including
the
relevant
certificates which were necessary for the
purposes of verifying the correctness or
otherwise of the qualifications of the
candidates as claimed by them and further
to verify as to whether their candidatures
were valid or not.

2. Later on, it transpires that the
Committee
of
Management
of
the
institution raised some objections with
regard to the appointments of the
appellants, upon which the Principal of
the institution sent a letter dated 10th
December,
1991
withdrawing
the
recommendations of the appointments of
the appellants and made a request to the
District Inspector of Schools not to grant
approval. The District Inspector of
Schools, thereupon, passed the order
dated 30.01.1992 (Annex.4). The writ
petition has been filed thereafter in May,
1992 claiming payment of salary with
effect from the dates of their joining.

3. A counter affidavit was filed on
behalf of the District Inspector of Schools
wherein it was stated that the certificate
which was relied upon by one of the
appellants was forged and this fact has
been stated in paragaph 8 of the counter
affidavit of Jagdish Prasad Gupta, the
Camp Assistant who has sworn the
affidavit on behalf of the District
Inspector of Schools. The same was,
however, denied in paragraph 7 of the
rejoinder
affidavit
and
certain
explanations were given.

4. The learned Single Judge by the
judgment under appeal, refused to go into
these questions and opined that the
appellants, who are claiming salary as
Class IV employees, have alternative and
efficacious remedy by approaching the
1 All] Gobari Yadav and another V. D.I.O.S., Deoria and others
305
Labour Court under the provisions of the
U.P. Industrial Disputes Act, 1947, and
ultimately, dismissed the writ petition on
the ground of alternative remedy.

5. Mr. R.C. Singh, learned counsel
for the appellants urged that relegating the
appellants to an alternative remedy after
15 years of the pendency of the writ
petition was absolutely unjustified and
that dismissing the writ petition on the
said
ground
amounts
to
serious
miscarriage of justice. He contends that
the appointments of the appellants having
been validly made and that the appellants
were entitled to payment of salary, as
once the appointment letters had been
issued and there being no provision for
approval by the District Inspector of
Schools, there was no occasion for
withdrawing the recommendations of
appointments of the appellants at the
instance
of
the
Committee
of
Management.
It
is
urged
that
the
appointments of the appellants could not
have been interfered with and the District
Inspector of Schools committed an error
by proceeding to refuse to accord
financial sanction to the appointments of
the appellants on the said ground. Learned
counsel
for
the
appellants
further
contends that the valuable rights had
accrued in favour of the appellants which
could not have been taken away by
adopting such a procedure and, therefore,
the appeal deserves to be allowed and the
judgment and order of the learned Single
Judge deserves to be set aside.

6. This Court entertained this appeal
and vide order dated 24.05.2007, called
upon
the
learned
counsel
for
the
appellants to furnish the information with
regard to the procedure adopted for the
selection and appointments of Class IV
employees and also requested him to
produce the copy of the advertisement
which would indicate that the procedure
of selection was adopted fairly and in
accordance with the rules. Till date, no
affidavit has been filed furnishing the said
information. It is well settled by now that
the appointments on such posts have to be
made in accordance with the procedure
prescribed under the rule. The post in
question is a Class IV post and of
Intermediate College, the salary whereof
is paid by the State. The procedure for
appointment
is
the
same
as
in
Government Schools. There is nothing on
record to indicate that the procedure for
appointing a Class IV employee was
followed by the Appointing Authority for
appointing the appellants. It is for this
reason that this Court had called upon the
learned counsel for the appellants to
furnish this information vide order dated
24.05.2007, which has not been done till
date. A perusal of the writ petition also
does not indicate such averments which
may establish that the posts were
advertised, a select list was prepared
which would indicate as to how many
applications were received and that the
procedure adopted was in accordance
with law. This was necessary in order to
find out as to whether the selections and
alleged appointments of the appellants
were in conformity with the principle of
Articles 14 and 16 of the Constitution of
India. As noticed above, nothing has been
tendered before this Court which may
establish the claim of the appellants of
having been appointed in accordance with
the procedure prescribed by law. In such a
situation, the mandamus as prayed for
cannot be issued. Not only this, the writ
petition was filed after the order dated
30.01.1992 had been passed. The said
order was not even challenged before this
306 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Court. The question as to whether any
prior approval of the District Inspector of
Schools was required or not, does not
arise in this case, inasmuch as for the
purposes of payment of salary from the
State funds, the District Inspector of
Schools,
who
is
the
Sanctioning
Authority,
has
limited
powers
of
examining the correctness or otherwise of
the appointment in order to ensure that the
salary is released in favour of a validly
appointment person. In the absence of any
challenge to the order of the District
Inspector of Schools or any prayer having
been made for quashing of the same, no
mandamus can issue, as the appellants
have failed to establish their rights by
brining on record any document, which
would establish that their appointments
had been preceded by following the due
procedure of selections.

7. The issue has been examined by a
Division Bench of this Court in Radhey
Shyam Dube Vs. District Inspector of
Schools, Deoria & Ors., 1987 UPLBEC
553, wherein after examining the scheme
of the Statute, the Court came to the
following conclusion:-

"The first point urged by the learned
counsel was that the District Inspector of
Schools has no power to approve or
disapprove the appointment of a teacher
or an employee of an institution. He could
not hence go into the validity of the
petitioner's appointment. The submission
is devoid of any merit. The petitioner
himself has repeatedly asserted that what
was sought by the District Inspector of
Schools was financial approval which
was undeniably necessary under the U.P.
High School and Intermediate Colleges
(Payment of Salaries to Teachers and
other Employees) Act, 1971 (the 'Payment
of Salaries Act' in brief) and the District
Inspector of Schools has done neither
more nor less than refused to accord the
same. That the District Inspector of
Schools does have that limited power, is
fully borne out by this Act which was
passed with the object of regulating the
payment of salaries to teachers and other
employees
of
High
Schools
and
Intermediate Colleges receiving aid out of
the State funds and to provide for matters
connected therewith. Under this Act the
responsibility for payment of salary to
teachers and employees of such institution
has been cast on the State Government
(vide Section 10). The Act requires the
institution governed by it to open an
account in a bank a separate account to
be operated jointly by a representative of
the Managing Committee and by the
District Inspector of Schools for purposes
of disbursement of salaries to its teachers
and employees. Eighty percent of the fees
realised by the Management has to be
deposited in that account. It is from this
fund and the Government grant that the
salaries of teachers and employees are
disbursed under the signatures of the
representative of the Management and the
District Inspector of Schools. Under
certain circumstances the account can be
operated by the District Inspector of
Schools singly without the association of
the Management. The responsibility cast
on the District Inspector of Schools to
disburse salaries necessarily carries with
it an implied power to satisfy himself that
the appointment of the teacher or
employee whose salary he is called upon
to disburse was appointed in accordance
with law and in a bona fide manner. For
that limited purpose he is free to make an
enquiry and satisfy himself within a
reasonable time."
1 All] Gobari Yadav and another V. D.I.O.S., Deoria and others
307
8.

Similarly,
the
issue
was
reconsidered by this Court in Baij Nath
Sharma Vs. District Inspector of Schools
Jaunpur & Ors., 1993 ESC 265 wherein
the Court held that the appointment of a
Class IV employee of a College is made
under the U.P. Intermediate Education
Act,
1921
and
Regulations
framed
thereunder. Neither the Act nor the
Regulations framed thereunder provide
for approval of the District Inspector of
Schools in the matter of appointment of
Class
IV
employee.
Therefore,
the
appointment
can
be
made
by
the
Appointing
Authority
without
any
approval of the District Inspector of
Schools. But, while dealing with the issue
of payment of salary, the Court held as
under:-

".....But when it come to the payment
of the salary it is governed by the U.P.
High School and Intermediate College
(Payment of Salary of Teachers and other
Employees)
Act,
1971
(hereinafter
referred to as the Act) under which the
D.I.O.S. is the competent authority to
decide the question as to whether the
employee is entitled to the payment of
salary. Whether an employee is entitled to
payment of salary depends on several
factors such as existence of the sanctioned
post, availability of maintenance grant in
respect of that post and manner and
method of the appointment. Merely,
because an employee has been appointed
by the appropriate authority the D.I.O.S.
is not bound to pay his salary under the
Act unless the conditions precedent are
satisfied."

9. The Group 'D' Employees Service
(U.P.) Rules, 1985, which are applicable
in a case of appointment of Class IV
employee in Government aided schools
by virtue of the Government Orders
issued from time to time, provide for
procedure for selection. Rule 19 thereof
provides that it is obligatory on the part of
the Appointing Authority to determine the
number of vacancies and to implement the
reservation policy of the State and notify
the said vacancies to the Employment
Exchange and further to provide for
advertisement in local daily newspapers
besides pasting the notice for the same on
the Notice Board.

10. It is settled legal proposition that
appointment to any public post is to be
made by advertising the vacancy and any
appointment made without doing so
violates the mandates of Articles 14 and
16 of the Constitution of India as it
deprives the candidates who are eligible
for the post, from being considered.

11.

In
Delhi
Development
Horticulture Employees' Union Vs. Delhi
Administration, Delhi & Ors., AIR 1992
SC 789, the Hon'ble Apex Court held that
calling the names from Employment
Exchange may curb to certain extent the
menace of nepotism and corruption in
public employment.

12. In State of Haryana Vs. Piara
Singh, AIR 1992 SC 2130, the Hon'ble
Supreme Court held as under:-

"Thirdly, even where an ad hoc or
temporary employment is necessitated on
account
of
the
exigencies
of
administration, he should ordinarily be
drawn from the employment exchange
unless it cannot brook delay in which case
the pressing cause must be stated on the
file. If no candidate is available or is not
sponsored by the employment exchange,
some appropriate method consistent with
308 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the requirements of Article 16 should be
followed. In other words there must be a
notice published in the appropriate
manner calling for applications and all
those who apply in response thereto
should be considered fairly."

13. Any appointment made on
temporary or ad hoc basis in violation of
the mandate of Articles 14 and 16 of the
Constitution of India is not permissible,
and thus void as the appointment is to be
given after considering the suitability and
merit of all the eligible persons who apply
in pursuance of the advertisement.

14.

In
Excise
Superintendent
Malkapatnam, Krishna District, A.P. Vs.
K.B.N. Visweshwara Rao & Ors., (1996)
6 SCC 216, the larger Bench of the
Hon'ble Supreme Court reconsidered its
earlier judgment in Union of India & Ors.
Vs. N. Hargopal & Ors., AIR 1987 SC
1227, wherein it had been held that
insistence of requisition of names from
employment exchanges advances rather
than restricts the rights guaranteed by
Articles 14 and 16 of the Constitution,
and held that any appointment even on
temporary or ad hoc basis without inviting
application
is
in
violation
of
the
provisions of Articles 14 and 16 of the
Constitution and even if the names of
candidates
are
requisitioned
from
Employment
Exchange,
in
addition
thereto it is mandatory on the part of the
employer to invite applications from all
eligible candidates from open market as
merely calling the names from the
Employment Exchange does not meet the
requirement of the said Articles of the
Constitution.
Same
view
has
been
reiterated in Arun Tewari & Ors. Vs. Zila
Manaswavi Shikshak Sangh & Ors., AIR
1998 SC 331; Kishore K. Pati Vs. District
Inspector of Schools, Midnapur & Ors.,
(2000) 9 SCC 405 and Subhas Chand
Dhrupta & Anr. Vs. State of H.P. & Ors.,
(2000) 10 SCC 82. Therefore, it is settled
legal proposition that no person can be
appointed even on temporary or ad hoc
basis without inviting applications from
all eligible candidates and if any such
appointment
has
been
made
or
appointment has been offered merely
inviting names from the Employment
Exchange
that
will
not
meet
the
requirement of Articles 14 and 16 of the
Constitution.

15. A similar view has been
reiterated in Pankaj Gupta & Ors. Vs.
State of J & K, (2004) 8 SCC 353; Binod
Kumar Gupta & Ors. Vs. Ram Ashray
Mahoto & Ors., AIR 2005 SC 2103;
National Fertilizers Ltd. Vs. Somvir
Singh,
AIR
2006
SC
2319;
and
Commissioner
Municipal
Corporation
Hyderabad
&
Ors.
Vs.
P.
Mary
Manoranjani, 2008 AIR SCW 704.

16. In Secretary, State of Karnataka
& Ors. Vs. Umadevi & Ors., (2006) 4
SCC 1, a Constitution Bench of the
Hon'ble Supreme Court came to the
conclusion
that
adherence
to
the
provisions of Articles 14 and 16 of the
Constitution of India is a must in the
process of public employment and an
employee
who
has
been
appointed
without
following
the
procedure
prescribed by law, is not entitled for any
relief, whatsoever, including the salary.

17. In Union Public Service
Commission
Vs.
Girish
Jayantilal
Vaghela & Ors., AIR 2006 SC 1165, the
Hon'ble Supreme Court held that the
appointment to any post under the State
can only be made after a proper
1 All] Smt. Shanti Devi V. Smt. Uma Devi and others
309
advertisement has been issued inviting
applications from eligible candidates and
holding of selection by a Body of Experts,
and any appointment made without
following the procedure, would be in
violation of the mandate of Article 16 of
the Constitution of India.

18. Therefore, it is evident that any
appointment made without advertising the
vacancy cannot be held to be in
conformity with the mandate of Articles
14 and 16 of the Constitution of India and
is a nullity.

19.

Appellants
claim
their
appointments in the year 1991 when the
1985 rules were already in force. Even
otherwise, if no statutory Rules providing
for the procedure of selection exist,
selections have to be based on a fair
procedure
and
in
consonance
with
Articles 14 and 16 of the Constitution of
India. It is for this reason that this Court
had called upon the appellants to file an
affidavit to support the selections on the
strength of any advertisement or any other
process which could justify the adoption
of a fair selection process. In spite of
lapse of almost 9 months, no affidavit has
been filed nor any material has been
brought on record to substantiate the
presumption of a fair procedure of
selection. On account of this lapse on the
part of the appellants, it is difficult for us
to assume that the appointment of the
appellants was made in accordance with
law.

20. Accordingly, even if the
contention with regard to the relegation of
the appellants to avail the alternative
remedy is entertained and the writ petition
is called upon to be assessed on merits,
even then the appellants have failed to
establish their rights and as such in this
view of the matter, they cannot ask this
Court for the issuance of a writ in their
favour. The appeal, therefore, lacks merit
and is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2008

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 7391 of 2008

Smt. Shanti Devi

...Petitioner
Versus
Smt. Uma Devi & others ...Respondents

Counsel for the Petitioner:
Sri B.D. Mandhyan
Sri Satish Mandhyan

Counsel for the Respondents:
Sri Ramesh Chandra Tiwari
S.C.

U.P. Punchayat Raj Act 1947-Section 12C-Election Petition-prescribed authority
decided to recounting of entire votes of
elected candidate and found 3 votes
invalid-request for re-counting of entire
votes refused-thus declared the looser
candidate
as
elected-held-process
adopted by prescribed authority-indeed
a mockery-court expressed its great
concern
about
functioning
of
administrative officer-as judicial dutylegislature to entrust these function to
the persons trained in law.

Held: Para 24 & 25

The
revisional
court
has
correctly
appreciated the law relating to recount
of votes in recording the findings. The
entire process adopted by the Prescribed
Authority was indeed a mockery on the
legal system.