# Hari Om Yadav v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Writ A No. 58005 of 2017
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-om-yadav-v-state-of-u-p-ors-45020
- **Pages:** 7

## Headnote

Law
-
Intermediate
Education Act, 1921 - Section 16 FF -
Minority Institution - Appointment on the
post of Assistant Teacher - L.T. grade -
DIOS disapproved the selection - on the
ground-that
post
had
lapsed
under
relevant regulations and advertisement -
not proper - not held anywhere that
petitioner was ineligible otherwise - DIOS
can withhold the approval only on ground
of lack of qualification.

Writ Petition allowed. (E-9)

List of cases cited: -

## Text

4 All. Hari Om Yadav Vs. State of U.P. & Ors.
581
regularized. However, the period spent by
them in the work-charged establishment
has not been counted towards the
qualifying service. Thus, they have not only
been deprived of their due emoluments
during the period they served on less salary
in work charged establishment but have
also been deprived of counting of the period
for pensionary benefits as if no services had
been rendered by them. The State has been
benefitted by the services rendered by them
in the heydays of their life on less salary in
work- charged establishment. (Emphasis
added)

10. Learned Standing Counsel
appearing for the contesting respondents
does not dispute the above legal position.

11. In view of the above facts and
circumstances of the case and the legal
position emerging out from the judgment
(supra), this writ petition deserves to be
allowed.

12. The writ petition succeeds and is
accordingly allowed.

13. The order dated 21.02.2017
(Annexure No. 8 to the writ petition) and
the order dated 24.03.2017 (Annexure No.
10 to the writ petition) are hereby quashed
and the respondents are directed to
include the period of service which the
petitioner has spent on ad-hoc basis from
25.06.1987
till
20.12.2001
towards
pension and the pension shall accordingly
be calculated and the due amount as
consequence thereof shall be paid within a
period of three months from the date of
production of certified copy of this order.
----------
(2019)12 ILR A581

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2019 &
15.11.2019

BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 58005 of 2017
&
Ref: Civil Misc. Correction Appl. No. 7 of 2019

Hari Om Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Srivastava, Sri Ashok
Khare

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

A.
Education
Law
-
Intermediate
Education Act, 1921 - Section 16 FF -
Minority Institution - Appointment on the
post of Assistant Teacher - L.T. grade -
DIOS disapproved the selection - on the
ground-that
post
had
lapsed
under
relevant regulations and advertisement -
not proper - not held anywhere that
petitioner was ineligible otherwise - DIOS
can withhold the approval only on ground
of lack of qualification.

Writ Petition allowed. (E-9)

List of cases cited: -

1. Mukesh Singh Chauhan and others v. State
of U.P. and others, 2006 (4) AWC 3471

2. C/M St. John's Girls' Inter College M.G.
Road, Agra v. Joint Director of Education, Agra
Region, Agra and others (Writ- A No.- 29428
of 2017 decided on 19th August, 2017)

3.
The
Manager,
Corporate
Educational
Agency v. James Mathew and others, (Civil
Appeal Nos.- 826-827 of 2017)

4. Secretary Malankara Syrian Catholic College
v. T. Jose and others, reported in 2007 (1)
SCC 386
582 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ajit Kumar, J.)

1.

Heard
Sri
Sunil
Kumar
Srivastava, learned counsel for the
petitioner and learned Standing Counsel
for the State- respondent.

2. In view of the office report dated
20th January, 2018, service of notice upon
the respondent No.4 is deemed sufficient
and accordingly, this Court proceeds
finally to decide the matter.

3. The petitioner before this Court
claims to have been validly appointed as
Assistant Teacher in L.T. Grade by the
4th respondent in the institution, namely,
'Christian Inter Inter College, Mainpuri'
admittedly a minority institution. The
petitioner has become aggrieved by the
order passed by the District Inspector of
Schools
dated
7th
October,
2017,
whereby an appointment of the petitioner
has been disapproved by the District
Inspector of Schools exercising power
under Section 16 FF of Intermediate
Education Act, 1921 and another order
dated 13th October, 2017, whereby papers
relating to the selection and appointment
of the petitioner have been returned and
the 4th respondent has been directed to
act afresh in accordance with the letter
dated 7th April, 2017 issued by the
Director Education (Secondary), U.P.
Lucknow.

4. Briefly stated facts of the case are
that in the minority institution being run
by the respondent No.4, it is stated that
two vacancies arose of Assistant Teacher
in L.T. Grade on 30th June, 2014 due to
retirement of Mr. Stanley M. Lal and also
on account of promotion of one Mr.
Vinay
Kumar
as
Lecturer
(Hindi).
According to the petitioner and as per
norms the existing sanction strength of
Faculty in L.T. Grade, the total number of
posts are 29 duly approved by the State
Government and this has come to be
acknowledged by the District Inspector of
Schools in his letter dated 20th December,
2012. As a consequence to the vacancy
fallen vacant substantively, the 4th
respondent issued an advertisement in two
widely circulated newspapers, namely,
Amar Ujala (Hindi) on 20th March, 2015
and Sunday Express (English) on 5th
April, 2015, a copy whereof has been
brought on record as Annexure- 2 to the
writ petition. Pursuant to the said
advertisement the petitioner applied for
the post of Assistant Teacher in L.T.
Grade and was interviewed on 6th July,
2016 by the Selection Committee and was
selected. Selection result issued by the
Selection
Committee
in
which
the
petitioner and one Ajay Kumar Singh
have been shown as selected bears the
signatures of the
members of the
Committee including Chairman.

5. The papers were forwarded to the
District Inspector of Schools by the
Manager
of
the
Committee
of
Management on 22nd July, 2016 as
required under Section 16FF of the
Intermediate
Education
Act,
1921.
However, since the matter remained
pending before the District Inspector of
Schools and the statutory period provided
for under the regulations within which the
District Inspector of Schools has to take
decision either way and he did not take
decision, the Committee of Management
proceeded to issue appointment order to
the petitioner on 28th November, 2016.
The petitioner submitted his joining on 1st
December, 2015 in the institution as
Assistant Teacher in L.T. Grade. As the
petitioner had joined and was discharging
4 All. Hari Om Yadav Vs. State of U.P. & Ors.
583
duties that in the meanwhile on 7th
October, 2017 the District Inspector of
Schools
passed
a
detailed
order
disapproving
the
selection
and
appointment of the petitioner as Assistant
Teacher in L.T. Grade in the institution on
two basic grounds:-

(1). First ground taken by the
District Inspector of Schools in his order
is that the post in question had lapsed in
view of the relevant provisions as
contained
in
the
regulations
under
Intermediate
Education
Act,
1921.
According to Regulation 20 of Chapter II
of the Intermediate Education Act, 1921,
if the post is not filled up within three
months
of
its
falling
vacant,
it
automatically lapses and then it becomes
necessary to get it revived. In support of
the stand taken by the District Inspector
of
Schools,
he
has
reminded
the
Committee of Management to its own
letters dated 21st September, 2016 and
5th October, 2016 seeking revival of the
vacancies that had been lapsed and the
District Inspector of Schools in that
regard had made recommendations for the
revival for only two positions in his letter
dated 21st January, 2017 addressed to the
Director of Education (Secondary), U.P.
Lucknow and the Director of Education
(Secondary) U.P. Lucknow had issued an
order on 7th April, 2017 reviving the post
of Lecturers (Psychology) and (Hindi).
However, in the category of L.T. Grade
those two posts were not revived.

(2). Another reason assigned in
the
order
impugned
is
that
the
advertisement was not properly made and
that too not in two widely circulated in the
daily newspapers and, therefore, the
selections and appointments are bad being
de hors the procedure prescribed in law
and it is since the appointments have been
held bad, the District Inspector of Schools
has subsequently passed another order
directing the management to proceed in
accordance with letter dated 7th April,
2017.

6. Assailing the order aforesaid,
passed by the District Inspector of
Schools, the argument advanced by the
learned counsel for the petitioner is that
the posts cannot automatically lapse as
sanction once granted cannot be treated to
be withdrawn automatically by lapse of
time unless the order/ sanction is so
conditioned. The provision as contained
under Regulation 20 Chapter II, it is
argued,
is
merely
directory
and
recommendatory in nature. It is submitted
vehemently that the post once has been
created can be cancelled by way of a
written order and that too with proper
approval of the authority concerned.
Moreover, he submits that the District
Inspector of Schools has failed to detail
out under what circumstances the post has
lapsed as there is no reference about the
period during which the post had
remained vacant.

7. It has been further argued by the
learned counsel for the petitioner that in
the matter of minority institutions the
parameters for granting approval to the
selection is not same as applicable to
other institutions. It is submitted that
minority institution has been given
freedom to make selection in accordance
with its own choice and what has to be
seen is only the applications are invited
from open market and there is an
advertisement of the vacancy and those
selected possess requisite qualifications. It
has also been argued that the stand taken
by the District Inspector of Schools that
vacancies were not duly advertised is not
584 INDIAN LAW REPORTS ALLAHABAD SERIES
correct
because
vacancy
was
duly
advertised in widely circulated daily
newspaper like Amar Ujala (Hindi) and
Sunday Express (English).

8. Per contra, the argument advanced
by the learned Standing Counsel is that the
minimum requirement of law is existence of
vacancy and fair procedure in matter of the
selection is sine
qua non
qua the
appointments. He submits that once the
management itself sought revival of the post
in question and no order in response to the
request was made by the competent
authority, the management should have
waited. It is further argued that the
advertisement is meant for public, offering
opportunities to all the eligible persons to
apply against the vacancy advertised. Every
advertisement should be clear in terms of
qualification, pay-scale and the nature of the
vacancy inasmuch as the date should be
specified relating to time period within
which the applicant has to apply. He submits
further that the in respect of the aided
institutions where the grant is being received
from the public exchequer, a duty is cast
upon the District Inspector of Schools to
ensure that one who is paid salary is duly
selected and appointed and is eligible for the
post that he holds even in the matters of
appointment in minorities institutions. He
argued that there is no error much less a
substantial one in the order impugned so as
to warrant interference in the matter.

9. Having heard learned counsel for
the learned counsel for the petitioner and
their arguments advanced across the Bar
and having perused the record, I find that
only two points required consideration in
the matter:-

(A). Whether the post would
lapse under Regulation 20 Chapter II of
the Intermediate Education Act, 1921 in
case if it is not advertised/ proceedings for
initiating selection and appointment is not
made within a period of 90 days and so
there did not exist vacancy resulting in
appointment of the petitioner as null and
void.

(B). Whether the procedure
otherwise adopted by the institution in
conducting selection and appointment of
the petitioner is bad being vitiated in law
for non compliance of necessary rules and
the petitioner is otherwise also not eligible
for the post he holds.

10. Coming to the first point; the
controversy should no longer detain this
Court as the regulations framed under
Chapter II of the Intermediate Education
Act, 1921 have been already held only
guidelines in respect of the minorities
institutions in the case of Mukesh Singh
Chauhan and others v. State of U.P.
and others, 2006 (4) AWC 3471.

11. Very recently in the case of C/M
St. John's Girls' Inter College M.G.
Road, Agra v. Joint Director of
Education, Agra Region, Agra and
others (Writ- A No.- 29428 of 2017
decided
on 19th
August, 2017) a
concurrent Bench of this Court while
dealing with Regulation 20 of Chapter II
framed under the Intermediate Education
Act, 1921 has held it to be not mandatory.
This Court considering such above aspect
in the judgment (supra) has held thus:-

"Indisputably, the institution is
a minority institution. There is no dispute
that the post on which the petitioner has
made appointment is a sanctioned post
and one regular teacher Smt. V. Ivan was
working on the said post and she attained
her age of superannuation on 30th June,
4 All. Hari Om Yadav Vs. State of U.P. & Ors.
585
2015. It is also not disputed that the
Committee of Management of the institution
has sent three successive communications
to the District Inspector of Schools seeking
his permission to make the advertisement.
This fact has been admitted in paragraph13 of the counter affidavit. Section 16-FF(4)
of the Act, 1921 came to be considered in a
large number of cases by this Court. A
simple reading of Section 16-FF(4) would
show that the District Inspector of Schools
has been empowered to withhold the
selection only on the ground of lack of
qualification of teachers. As regards
Regulation 20 of Chapter II of the
Regulations framed under the Act, 1921, it
came to be considered in the above
mentioned three cases. The consistent view
taken by this Court is that the Regulations
are merely guidelines in view of the explicit
statutory provision, which has used the
words that the District Inspector of Schools
can withhold the approval only on the
ground of lack of qualification.

In view of the above, I am of the
opinion that the view taken by the District
Inspector of Schools-II, Agra, the second
respondent,
declining
approval
is
unsustainable. Accordingly, the impugned
order dated 05th December, 2016 passed
by the second respondent is set aside."

12. Coming to the second aspect of the
matter law is well settled that in matters of
procedure to be followed by in the minorities
institutions in the light of the spirit of the
provisions as contained under sub-section 4
of Section 16-FF, in my considered opinion,
once the candidate is found to be eligible
who has been given appointment, the District
Inspector of Schools cannot hold approval.
Sub-section 4 of Section 16-FF of the
Intermediate
Education
Act,
1921
is
reproduced hereunder:-

"16-FF(4).
The
Regional
Deputy Director of Education or the
Inspector, as the case may be, shall not
withhold approval for the selection made
under this section where the person
selected
possesses
the
minimum
qualifications prescribed and is otherwise
eligible."

13. This Court had already dealt
with such controversy in the case of
Mukesh Singh (supra) wherein the Court
was dealing with Regulation 17(A) (2) of
Chapter II of the Regulations which
provided for the procedure to be followed
in matters of advertisement to be made in
respect of the vacancies which are sought
to be filled in. The Court held that these
regulations are mere guidelines and if a
candidate
is
otherwise
eligible,
his
appointment cannot be disapproved in the
minorities institutions by the authorities.
Vide paragraph 8 of the judgment (supra)
this Court has held thus:-

"8. Clause (4) of Section 16-FF
indicates that the authority could not
withhold the approval for the selection
made
where
the
persons
selected
possesses the minimum qualifications
prescribed and was otherwise eligible.
The impugned order does not speak about
the qualifications of the petitioners nor
does it indicate that the petitioners did not
possess the requisite qualifications. In the
absence of a finding in this regard, the
District
Inspector
of
Schools
was
therefore required to grant the approval
of the appointments of the petitioners and
could not go into the intricacies or
irregularities alleged to have been made
in the selection process, which otherwise
did not exist, as would be clear
hereinafter. In my opinion, the provision
contemplated under Regulation 17 of
586 INDIAN LAW REPORTS ALLAHABAD SERIES
Chapter II of the Regulations framed
under the Intermediate Education Act, in
my opinion, could not override Subclause)
of
Section
16-FF
of
the
Intermediate Education Act. In the
opinion of the Court, Regulation 17 is
only a guideline and any irregularity
committed would not make a candidate
ineligible when he was otherwise eligible
and qualified for an appointment as
contemplated under Sub-section [4] of
Section 16-FF of the Act."

14. The freedom of the minorities
institution
in
making selection and
appointment against the vacancies in the
institution has come to be considered in
many cases by the Apex Court. The Apex
Court in the case of The Manager,
Corporate
Educational
Agency
v.
James Mathew and others, decided on
11th July 2017 (Civil Appeal Nos.- 826827 of 2017) held that the emerging
position is that, once the Management of
a minority educational institution makes a
conscious choice of a qualified person
from the minority community to lead the
institution, either as the Headmaster or
Principal, the court cannot go into the
merits of the choice or the rationality or
propriety of the process of choice. In that
regard, the right under Article 30(1) is
absolute.

15. Further in the case of Secretary
Malankara Syrian Catholic College v.
T. Jose and others, reported in 2007 (1)
SCC 386 repelling the argument raised by
the learned counsel for the petitioner that
Regulation 30 (1) cannot be used against
members of the teaching staff as teachers
belong to the same community in matters
of appointment of Headmaster to the
institution. Where the management has
chosen
headmaster
exercising
its
discretion to select a person of its own
choice, the Apex Court has held vide
paragraph 28 of the judgment (supra)
thus:-

"28. The appellant contends that
the protection extended by Article 30(1)
cannot be used against a member of the
teaching staff who belongs to the same
minority community. It is contended that a
minority institution cannot ignore the
rights of eligible lecturers belonging to
the same community, senior to the person
proposed to be selected, merely because
the institution has the right to select a
Principal of its choice. But this contention
ignores the position that the right of the
minority to select a Principal of its choice
is with reference to the assessment of the
person's outlook and philosophy and
ability to implement its objects. The
management is entitled to appoint the
person, who according to them is most
suited, to head the institution, provided he
possesses the qualifications prescribed for
the posts. The career advancement
prospects of the teaching staff, even those
belonging to the same community, should
have to yield to the right of the
management under Article 30(1) to
establish and administer educational
institutions."

16. Section 57(3) of the said Act that
provided that the rule of seniority-cumfitness for selection and appointment on
the post of Principal of the aided
institution was held to be violative of
Article 30(1) of the Constitution and,
accordingly, was held not applicable to
the minority institutions.

17. In view of above exposition of
law emerging out from the authorities
cited above, coming to the facts of the
4 All. Indian Press Pvt. Ltd. Vs. State of U.P. & Ors.
587
present case, and reason assigned in the order
impugned in the present writ petition, I find
that the District Inspector of Schools
disapproved the selection and appointment
only on the ground that the post had lapsed
under the relevant regulations and that
advertisement was not proper as per the
provisions contained under the Regulations
and the procedure prescribed for preparation
for select list and now applying the law as
discussed above, the reasons assigned in the
order, therefore, cannot be sustained.

18. The District Inspector of Schools
has not held anywhere in the order that the
petitioner who was duly selected and
appointed, did not possess the minimum
qualification prescribed for under the
Appendix (A) to the Regulations of Chapter
II of the Intermediate Education Act, 1921.
Accordingly, the order dated 7th October,
2017 and 13th October, 2017 passed by the
District Inspector of Schools cannot be
sustained and are hereby quashed.

19. The District Inspector of Schools
is directed to reconsider the matter of
approval, however he can exercise his
discretion of enquiry only to the limited
extent as to whether the petitioner did
possess the requisite qualification for
holding post on the date of his selection
and appointment or not.

20. It is made clear that in case if the
petitioner is found to have possessed the
requisite qualification on the date of
selection and appointment, the District
Inspector of Schools shall proceed to issue
positive directions approving appointment
order and also for payment of salary.

21. The writ petition is, thus, allowed in
terms of the order passed hereinabove.
----------
(2019)12 ILR A587

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Writ C No: 32096 of 2018

Indian Press Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors.. ...Respondents

Counsel for the Petitioner:
Sri Komal Mehrotra, Sri Maya Shankar
Srivastava, Sri Pramod Kumar Jain

Counsel for the Respondents:
C.S.C., Sri Ajit Kumar Singh (Addl.
Advocate General), Sri Nimai Das Addl.
C.S.C.

A. Civil Law - Public Premises (Eviction of
Unauthorized
Occupants)
Act,
1971-
Section 4 - Issue of notice to show cause
against order of eviction - section 5 -
Eviction of unauthorised occupants -
Nazul Land - Resumption of land by state
for public purpose - validity.

Litigation initiated by petitioner has given
enough time to continue to hold and enjoy
land in dispute - respondent authorities were
denied opportunity to take possession of land
in question for the purpose of carrying out
developmental activities where time is a
matter of essence -. more than twelve months
have already been availed by petitioner to
enjoy benefit of possession of land in dispute -
It has enjoyed the same without spending
even a single penny towards rent, damages,
compensation for such enjoyment - Land in
question
is
required
for
developmental
activities
in
furtherance
of
developing
Prayagraj
City
as
"Smart
City"
-
Developmental activities require an early