# Hindustan Aeronautics Ltd v. State of

- **Citation:** (2008) 1 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-04
- **Case number:** Civil Misc. Writ petition No.63906 of 2007
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hindustan-aeronautics-ltd-v-state-of-41006
- **Pages:** 4

## Headnote

Constitution of India Art. 226-Service
Law-substantive vacancy of Principal
caused on 20.6.98-senior most Lecturer
appointed officiating-but subsequently
suspended-petitioner in June 1999 given
charge of officiating principal-resigned
on 28.10.05 on the ground of ill healthanother
lecturer
given
charge
as
officiating
principal
who
retired
on
30.6.07-again the petitioner took charge
as
officiating
Principal
but
D.I.O.S.
directed the management to appoint
another lecturer as officiating Principalheld-once
Adhoc
arrangement
made
officiating
Principal-the
substantive
vacancy remained same only Adhoc
arrangement came to an end-petitioner
can not be appointed.

Held: Para 7

The substantive vacancy occurred on
30.6.1998 on the retirement of Ramesh
Chandra Gupta and no fresh vacancy
occurred upon the retirement of Girish
Chandra Jain on 30.6.1997. It was the
same
vacancy
which
continued.
Consequently,
the
vacancy
which
occurred on 30.6.1998 continued and
continued to exist till 30.6.2007. The
same post continued to remain vacant
and no substantive appointment on the
said vacancy was made. The mere fact
that an adhoc arrangement of officiating
Principal was made earlier on the said
post which came to an end would not
mean that a fresh substantive vacancy
had again been created. The substantive
vacancy remained the same and only an
officiating arrangement had come to an
end. This view was also held in the
1 All] Ashok Kumar Jain V. State of U.P. and others
119
aforesaid Division Bench judgment of
Sundershan Kumar (supra), which is
squarely applicable to the present facts
and the circumstances of the case. The
judgment cited by the learned counsel
for
the
petitioner
stands
impliedly
overruled in view of the decision of the
Division Bench.
Case law discussed:
2004 (3) ESC-1884, Spl. Appeal No. 959/06
decided on 15.2.06 relied on.

## Text

118 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
award as also the judgment of the High
Court leaving the merit of the matter
open.
All
the
remedies
of
the
respondent indisputably shall remain
open.
The appeal is allowed.".

11. Learned Single Judge of this
Court in Writ Petition No.13936 of 1995,
Hindustan Aeronautics Ltd. Vs. State of
U.P. And others in its order dated
29.09.1997 held as follows:

"In
my
view,
therefore,
the
petitioner's contention that in the case
of
the
petitioner
the
appropriate
Government
was
the
Central
Government
is
correct
and
the
Government of Uttar Pradesh had no
jurisdiction to refer the dispute for
adjudication
by
the
Industrial
Tribunal."

12. In view of the above, writ
petition is allowed. The impugned award
dated 10.10.2000 given by the Prescribed
Authority Labour Court (III) U.P., Kanpur
in Industrial Disputes Case No.1 of 1991
is quashed. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ petition No.63906 of 2007

Ashok Kumar Jain

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Rama Kant Dubey

Counsel for the Respondents:
Sri Alok Kumar Srivastava
Sri Vikash Sahai
Sri Vinod Sinha
S.C.

Constitution of India Art. 226-Service
Law-substantive vacancy of Principal
caused on 20.6.98-senior most Lecturer
appointed officiating-but subsequently
suspended-petitioner in June 1999 given
charge of officiating principal-resigned
on 28.10.05 on the ground of ill healthanother
lecturer
given
charge
as
officiating
principal
who
retired
on
30.6.07-again the petitioner took charge
as
officiating
Principal
but
D.I.O.S.
directed the management to appoint
another lecturer as officiating Principalheld-once
Adhoc
arrangement
made
officiating
Principal-the
substantive
vacancy remained same only Adhoc
arrangement came to an end-petitioner
can not be appointed.

Held: Para 7

The substantive vacancy occurred on
30.6.1998 on the retirement of Ramesh
Chandra Gupta and no fresh vacancy
occurred upon the retirement of Girish
Chandra Jain on 30.6.1997. It was the
same
vacancy
which
continued.
Consequently,
the
vacancy
which
occurred on 30.6.1998 continued and
continued to exist till 30.6.2007. The
same post continued to remain vacant
and no substantive appointment on the
said vacancy was made. The mere fact
that an adhoc arrangement of officiating
Principal was made earlier on the said
post which came to an end would not
mean that a fresh substantive vacancy
had again been created. The substantive
vacancy remained the same and only an
officiating arrangement had come to an
end. This view was also held in the
1 All] Ashok Kumar Jain V. State of U.P. and others
119
aforesaid Division Bench judgment of
Sundershan Kumar (supra), which is
squarely applicable to the present facts
and the circumstances of the case. The
judgment cited by the learned counsel
for
the
petitioner
stands
impliedly
overruled in view of the decision of the
Division Bench.
Case law discussed:
2004 (3) ESC-1884, Spl. Appeal No. 959/06
decided on 15.2.06 relied on.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Ashok Khare, the
learned senior counsel assisted by Sri
Rama Kant Dubey and Sri Vinod Sinha,
the learned counsel for respondent no.5
and the standing counsel for respondent
nos.1, 2 and 3. Since no factual
controversy is involved in the present writ
petition, the present writ petition is being
decided without calling for a counter
affidavit.

2. It transpires, that the Principal of
the institution retired and a substantive
vacancy
came
into
existence
on
20.6.1998. One Ram Babu Jain was
granted an appointment as an officiating
Principal but subsequently he was placed
under suspension. Consequently, the
petitioner, by virtue of being the senior
most lecturer, was appointed as an
officiating Principal of the institution in
June 1999 and, the petitioner functioned
in that capacity till 28.10.2005, on which
date,
the
petitioner
submitted
his
resignation citing family stress and ill
health. This resignation was duly accepted
by the authorized controller and the
petitioner was relieved from the post of
officiating Principal.

3. Consequent upon the occurrence
of the vacancy in the office of the
Principal by the resignation of the
petitioner,
another
lecturer
of
the
institution was given the task of the
officiating Principal of the institution,
namely,
Girish
Chandra
Jain,
who
functioned till he retired on 30.6.2007. As
a consequence of the retirement of Girish
Chandra Jain, the post of officiating
Principal again became vacant. The
Manager of the institution by an order
dated 30.6.2007 directed the petitioner to
assume charge as the officiating Principal
since he was the senior most teacher in
the institution. It is alleged that the
petitioner took charge. On 7.7.2007, the
District Inspector of Schools passed an
order directing the management to issue
directions to Aditya Prakash Gupta,
respondent no.5, to take charge as the
officiating Principal of the Institution. The
order dated 7.7.2007 as well as the earlier
order of the District Inspector of Schools
dated 29.6.2007 was challenged by the
petitioner in Writ Petition No.31588 of
2007. Both the orders of the District
Inspector of Schools were set aside by a
judgment dated 17.7.2007 on the ground
that no opportunity of hearing was
provided to the petitioner. The Court
further
directed
the
Regional
Joint
Director of Education to hear both the
parties
including
the
committee
of
management and take a decision with
regard to the entitlement of the parties on
the post of officiating Principal. Based on
the said directions of the Court, the
impugned order was passed on 7.12.2007
by the Regional Joint Director of
Education which was communicated by
an order dated 10.12.2007 passed by the
District Inspector of Schools whereby the
claim of the petitioner to function as an
officiating Principal of the institution was
rejected. The petitioner, being aggrieved
by the aforesaid decision, has filed the
present writ petition.
120 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
4. The learned counsel for the
petitioner
submitted
that
upon
the
retirement of Girish Chandra Jain, the
post of officiating Principal fell vacant
again on 30.6.2007 and the said post was
required to be filled up by a regular
appointment. Since no names were
recommended by the Board, the said post
was required to be filled up by the senior
most lecturer working in the institution.
The learned counsel submitted that
admittedly the petitioner was the senior
most lecturer and the petitioner was liable
to be given the charge of the officiating
Principal, the moment the vacancy arose.
In support of his submission, the learned
counsel placed reliance upon a decision of
the learned Single Judge of this Court in
Dhanesh Kumar Sharma vs. State of
U.P. and others, 2004(3)ESC 1884,
wherein the Court held that the right of
the senior most teacher to function as the
officiating Principal cannot be defeated
on the ground that at an earlier point of
time, he had expressed his inability to
continue as the officiating Principal on
account of his ill health. The Court held
that his right cannot be defeated, on the
ground, that in the past he had expressed
his inability to continue on the ground of
illness and was entitled to be considered
subsequently whenever the vacancy arose.

5. On the other hand, Sri Vinod
Sinha, the learned counsel for the
opposite
party
submitted
that
the
petitioner,
upon
submitting
his
resignation, had forfeited his right for
reconsideration on the said post and that
he could only be considered in the event a
substantive vacancy occurred at any point
of time in the future. The learned counsel
for the petitioner submitted that once a
substantive vacancy on the post of
Principal had fallen vacant and had not
been filled up by a regular appointment,
in that event, it has to be filled up by a
senior most lecturer working in the
institution, but once the senior most
lecturer refused to officiate as a Principal
and the substantive vacancy continued, in
that event, he was not entitled to be
offered the post of officiating Principal
again on the retirement of the officiating
Principal. In support of his submission the
learned counsel placed reliance upon a
decision of the Division Bench dated
15.9.2006 in Sundershan Kumar v.
State of U.P. and others (Special Appeal
No.959 of 2006), wherein the court held
that no substantive vacancy occurred
when an officiating Principal retired and
consequently, when the senior most
lecturer working in the institution having
once refused to officiate as Principal
could not be offered an officiating
appointment again during the subsistence
of the same vacancy.

6. In the present case, there is no
dispute that a substantive vacancy on the
post of Principal occurred on 30.6.1998
upon the retirement of Sri Ramesh
Chandra Gupta. No regular appointment
was made by the Board and the petitioner,
being the senior most lecturer was
allowed to officiate as the Principal till
the date when he tendered his resignation,
i.e., till 28.10.2005 after which the post of
the officiating Principal was given to the
next senior most lecturer who functioned
till 30.6.2007. The question is whether
after the retirement of Girish Chandra Jain
on 30.6.2007, could the post of officiating
Principal be again given to the petitioner
by virtue of his being the senior most
lecturer in the institution.
1 All] Raj Veer Singh V. State of U.P.
121
7. The substantive vacancy occurred
on 30.6.1998 on the retirement of Ramesh
Chandra Gupta and no fresh vacancy
occurred upon the retirement of Girish
Chandra Jain on 30.6.1997. It was the
same
vacancy
which
continued.
Consequently,
the
vacancy
which
occurred on 30.6.1998 continued and
continued to exist till 30.6.2007. The
same post continued to remain vacant and
no substantive appointment on the said
vacancy was made. The mere fact that an
adhoc arrangement of officiating Principal
was made earlier on the said post which
came to an end would not mean that a
fresh substantive vacancy had again been
created.
The
substantive
vacancy
remained the same and only an officiating
arrangement had come to an end. This
view was also held in the aforesaid
Division Bench judgment of Sundershan
Kumar
(supra),
which
is
squarely
applicable to the present facts and the
circumstances of the case. The judgment
cited by the learned counsel for the
petitioner stands impliedly overruled in
view of the decision of the Division
Bench.

8. Since the petitioner had declined
to officiate as the Principal on the said
vacancy, he could not be permitted at this
stage to claim appointment on the post of
officiating Principal. The petitioner is
estopped under law from claiming an
officiating appointment on the same
substantive vacancy. In view of the
aforesaid, this Court does not find any
merit in the writ petition and is dismissed
summarily.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2007

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 57960 of 2007

Raj Veer Singh

...Petitioners
Versus
State of U.P.

...Respondent

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Rahul Agarwal
Sri Udayan Nandan

Counsel for the Respondent:
S.C.

U.P. Civil Services ( Classification control
and
Appeal)
Rules-1939-Rule
49-A
Suspension-contemplation of preliminary
enquiry by vigilance-keeping in view of
contrary views of full bench decision Jai
Singh Dixit-and Shahroj Anwar Khan -
matter referred to larger bench.

Held: Para 19

For the reasons recorded above, we have
doubt about the correctness of the law laid
down by the Full Bench judgment of this
Court in the case of Shahroj Anwar Khan
(supra) and therefore direct that the papers
of the present writ petition be placed before
the
Hon'ble
the
Chief
Justice
for
constituting
a
Larger
Bench
for
consideration of the following questions of
law.
Case law discussed:
1975 ALR K- 64, 2007(2) UPLBEC 1582, AIR
1984 PAN 113

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

1. This matter has been placed
before us by way of an order of the