# In State of Haryana v. S.M. Sharma

- **Citation:** (2000) 3 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-state-of-haryana-v-s-m-sharma-39504
- **Pages:** 6

## Text

3All] Smt. Kamala SharmaV. D.D.E., Agra Division Agra & others 290

In State of Haryana V. S.M. Sharma,
supra, what the Apex Court held was that
entrustment or withdrawal of current
duties charge in one's own pay scale did
not amount to either promotion or
reversion.

The Apex Court in Jarnail Singh &
Ors. V. State of Punjab & Ors. Supra had
laid down that the provisions as contained
in Article 311 of the Constitution are
applicable even in case of an ad-hoc
employee and that it is open for such an
employee to show that while terminating
his services on the ground that he was no
longer required, it was open for such an
employee to show that persons who are
junior to him have been retained and thus
Articles 14 and 16 of the Constitution will
come into play.

14. Now the facts of the instant case.
The impugned order dated 1.9.1992
clearly shows that the Respondent was
reverted to the post of Copyist at a lower
salary from the post which he was
continuing to hold on the ground that his
work was not satisfactory. Thus clearly
stigma was attached. The order of
Respondent No.3 was thus in teeth of the
ratio laid down in S.P. Vasudeva cited by
Sri Agrawal himself and Jarnail Singh
cited by Sri Saxena. In this backdrop
alone we are constrained to hold that as
stigma was attached while passing the
impugned order dated 1.9.1992 thereby an
opportunity to have his say to the
Respondent was must before its passing.

15. The other decisions relied upon
by Sri Agarwal do not apply the facts and
circumstances of the instant case, who
also failed to show us any rule of the
relevant time vesting such powers in
Appellant No.3 as stated in the order of
then Hon'ble Inspecting Judge.

The Result:-

16. For the reasons aforementioned.
We hold that this appeal is without any
merit, It is dismissed accordingly, but
without there being any order as to cost.

17. The office is directed to handover a copy of this Judgement within two
weeks to Sri Sudhir Agarwal the Special
Counsel of the Court.
Appeal Dismissed.

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By the Court

1. The petition under Article 226,
Constitution of India has been filed by
one Smt. Kamla Sharma seeking to
challenge the impugned order dated
November
1/2
1993
passed
by
Respondent No.3 (SMT Usha Varshaney,
both working as lecturers in a recognized
intermediate
Girls
institution
called
Chiranji Lal Girls inter College, Aligarh
(called the 'college), which is admittedly
governed by the provisions of U.P.
Intermediate Education Act, 1921 (as
amended up to date) and Regulations
framed there under Copy of impugned
order has been filed as (Annexure -1 to
the Writ petition)

2. For appreciating the controversy
raised
by
the
parties,
following
undisputed dates are being given:-

Sl
N
o
Dates
Events
01 08-07-66
Smt. Kamla Sharma the
petitioner was appointed
as a lecturer (English) at
Agrasen
balika
Inter
College,
Mathura
(Where
the
Petitioner
worked up to 13th july
1970.
02 08-07-69
Smt.
Usha
Varshney,
Repondent
No.3
was
appointed as C.T. Grade
Teacher at Chiranji Lal
Balika
Higher
Secondary

School,
Aligarh
03 01-09-69
Respondent No.3 was
given
promotion
as
Lecturer (Sanskrit).
04 10-10-69
Chirangi
Lal
Balika
3All] Smt. Kamala SharmaV. D.D.E., Agra Division Agra & others 292
Higher
Secondary
School was upgraded as
Inter college
05 10-02-70
Regional Inspectress of
Girls Schools approved
appointment
of
Respondent No.3 as C.T
Grade Teacher on One -
year probation.
06 16-061970
Regional Inspectress of
Girls Schools approved
respondent
No.3
Lecturer (Sanskrit)
07 14-07-70
Petitioner was appointed
and
she
joined
as
Lecturer in Chiranji Lal
Balika
Inter
College
Aligarh.
08 24-11-70
Regional Inspectress of
Girls Schools approved
the
Petitioner's
appointment as Lecturer
in Chiranji Lal Balika
Inter College, Aligarh.
09 14-08-83
Resolution was passed
by
Committee
of
Management for adding
service
of
Petitioner
from 08-07-1963 to 1307-1970 at Agrasen Inter
College, Mathura into
service at the institution
from
14-07-1970
recommending grant of
selection grade to the
Petitioner.
10 02-04-89
Petitioner
submitted
representation
to
the
Committee
of
Management for correct
determination
of
seniority and to place
her next to principal as
senior most Lecturer.
11 19-04-93
Authorised
Controller
12 02-11-93
Deputy
Director
of
Education
on
appeal
filed
by
Respondent
No.3 against order dated
19-04-1993
declared
Respondent No.3 senior
to the Petitioner

3. Heard learned counsel for the
petitioner
Shri Ashok Bhushan, the
learned Standing Counsel appearing on
behalf of Respondent Nos. 1 and 2 (who
had accepted notice for Respondent No. 2
also) and Shri B.B. Paul, Advocate
appearing on behalf of Respondents No.
3.

4. There is no dispute that Smt.
Kamla
Sharma
(Petitioner)
did
not
challenge the seniority of Smt. Usha
Varshney (Respondent No.3), who was
ever - since the appointment of the
Petitioner in the college till 1989 was
treated senior to the Petitioner. The
Petitioner. Counsel, however, referred to
para 2 of Annexure RA-3 (filed along
with the Rejoinder Affidavit) to show that
the Petitioner had made representations
dated 29th December 1973. 22nd April
1974, 25th April 1978 and 25th July 1983.n
It is further alleged that the Petitioner had
made representations dated 02nd April
1989 and 01st June 1989 also before
Authorised Controller but no action was
taken. The fact that Petitioner did not
pursue
her
representations
and
aforementioned dates clearly show that
there is gap of about four years between
1974 and 1978 as well as gap of five
years between 1978 and 1983. In case,
293 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
committee
of
management
was
not
circulating seniority, as required under
relevant regulations. The Petitioner ought
to have raised the issue before higher
authorities
or
proper
Court.
She
approached this Court for a writ of
mandamus to command the Respondents
to
treat
the
Petitioner
senior
to
Respondent No.3 by allowing long time
of more than a decade to run and she
contended by filing representations with
no decision on them. Long since and
passive approach of her disentitle her to
reopen long settled old issue.

5. In reply filed by Respondent No.3
before
the
Appellate
Authority
(
Annexure
CA-
16
to
the
Counter
Affidavit) Respondent No.3 categorically
pleaded that her senior position above the
Petitioner was never disputed by the
Petitioner during 1970-1989 (PP 60,63,
and
66 of the Counter Affidavit).
Respondent No. 3 categorically pleaded
that her seniority after 18 years should not
be allowed to be disturbed by permitting
Petitioner to challenge her initial
appointment as lecturer which was direct
appointment and not by promotion.
Respondent No. 3 categorically contended
that she could not be promoted from C.T.
grade to Lecturer Graduate to intervening
cadre of Assistant Teacher L.T. Grade of
Assistant Teachers. Respondents No.3
claimed that she was duly appointed as
Lecturer when college was upgraded to
Intermediate level in 1970 and the
recommendation
in
favour
of
the
Petitioner by committee of Management
was approved by the then Regional
Inspectress of Girls Schools vide order
dated 16th June 1970 (Annexure 13 to the
Supplementary Affidavit). This order of
approval has not been challenged by one
and so long as this order of approval in
favour of respondent No.3 as lecturer in
the College stands the Petitioner cannot
be permitted to challenge the appointment
of Respondent No.3 at this stage while
claiming seniority after time as it will
amount to collateral challenge.

6. In this facts of the present case. It
has to be accepted that Respondent No.3
was validly appointed with the approval
of Regional Inspectree of Girls Schools
under order dated 16th June 1970. The
argument of the Petitioner, now after
several years that Respondent No.3 could
not be promoted from C.T. grade to
Lecturer Grade in the College when the
Petitioner has been treated junior to
respondent no.3 ever since 1970 to 1989,
cannot be permitted.

7. It is not the case of the Petitioner
that Respondent No.3 did not possess
requisite minimum academic qualification
for being appointed as lecturer in the year
1970. Respondent No.3 having been
allowed without any objection to work
and
or there being no charge of
misrepresentation or fraud being practiced
by the said Respondent No.3 one cannot
be permitted and justify challenge to the
initial appointment at a belated stage after
about 18 years. There is no averment that
Petitioner's had made above referred
representations within the knowledge of
respondent No.3 In absence of any
knowledge to respondents No.3 about
challenge to her initial appointment nor it
was earlier challenging by the Petitioner
or any one else it is not expedite to allow
the Petitioner to challenge the same after
several years.

8. The learned counsel for the
petitioner referred to the case of Shitla
Prasad versus State of U.P. - AIR SC
3All] Smt. Kamala SharmaV. D.D.E., Agra Division Agra & others 294
1859. The above mentioned case of Shitla
Prasad is clearly distinguishable. on facts
inasmuch as in the aforementioned case
Petitioner
did
not
possess
requisite
academic qualification. In the instant
case, there is no dispute that Respondent
No.3 possessed all the requisite minimum
academic qualification prescribed under
the relevant Act and the Regulations
framed the render at the time of
appointment.

9. The argument on which Petitioner
seeks to assail appointment of Respondent
No.3 is whether respondent No. 3 could
be validly appointed by way of promotion
from C.T. to the post in Lecturer Grade
without first being promoted to L.T.
Grade and completing five years in L.T.
Grade.

10. Petitioner in support of above
submission refer to the use of word
'promotion' Mere use of expression
'Promotion ' in appointment letter or
otherwise under misconception of facts
and / or language' cannot change the real
nature of appointment nor can it be
permitted to be used as a pretext to
establish illegality/ irregularity in the
process - particularly when there is no
fault or participation of the Respondent
No.3 and also that about decades have
passed. Obviously Respondent No.3 could
not be appointed by way of promotion but
by direct selection only subject to her
possessing prescribed minimum academic
qualification at the relevant time.

11. As the record stands, it cannot be
ruled out that Respondent No.3 was not
appointed through regular selection by
direct mode. The then regional Inspectress
for Girls Schools to the appointment of
Respondent No.3 accorded approval and
it will be deemed. In absence of to the
allegation contrary, that she had after
scrutinizing the papers did not find lacuna
in this appointment of Respondent No.3
and consequently accorded approval to
the appointment of Respondent No.3 It
cannot be now permitted to be assailed on
technical grounds like the above.

12. The learned counsel for the
petition then referred to the case of Smt.
Prem
Balika
Rai
versus
Regional
Inspectress of Girls Schools, Varanasi and
others connected with the case of Malit
Singh versus Regional Inspectress of
Girls Schools (1993)2 UPLBEC 922. As
already mentioned above. Fact of the
instant case are different to the extent that
in the present case Respondent No.3 is
claiming
her
appointment
by
direct
selection. The controversy raised in the
fact of Prem Balika Rai (Supra) was
entirely different.

13. On the other hand, learned
counsel for the Respondent referred to the
decision of Dr. Asha Saxena versus S.K.
Chaturvedi (1991) 2 UPLBEC 1202
wherein a Full Bench of this Court
observed that law is to the fact that law is
well settled that Court will not interfere
with the seniority which has prevailed and
remained final for long time.

14. Apex Court in the case of
Malcon versus Union of India - AIR 1975
SC 1269, has taken a similar view while it
observed that before one can seek
remedy, one must show having acted with
due diligence and promptitude.

15. It will be noted that Courts do
not
permit
collateral
challenge
by
allowing one to assail initial appoint to
disturb 'Seniority' particularly when there
295 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
 is
no
allegation

of
fraud
or
misrepresentation. The above view finds
support from the decisions of the apex
Court in:

1. AIR 1981 SC 1473

2. AIR 1983 SC 194
 3. AIR 1987 SC 2111 (Pr.12)

16. Besides what has been argued at
the Bar and referred to above, this Court
would like to note that Petitioner did not
implead Committee of Management of
the College. Instead she had impleaded
the Authorised Controller. Chiranji Lal
Balika
Inter
College,
Aligarh/City
Magistrate, Aligarh. Assuming that there
was a validly elected Committee of
Management, constituted as contemplated
under the scheme of Administration under
the U.P. Intermediate Education Act,
1921", the aggrieved party, in case the
petitioner is granted relief, shall be
Committee
of
Management.
The
Authorised Controller is appointed under
the Act only to represent the Committee
of Management for time being for day to
day function. The Authorised Controller
is
in
fact,
not
the
committee
of
Management as such Committee of
Management
ought
to
have
been
impleaded in the petition and sought to be
served through Authorised Controller
instead of Manager. In the absence of
committee of Management, which is not
only relevant but also necessary party in
the instant case the Petitioner cannot be
granted relief claimed in the Writ Petition.

17. It may be noted that the whole
dispute of seniority between Petitioner
and
Respondent
No.3
assumed
importance
and
became
significant
inasmuch
as
under
U.P. Secondary
Service Commission Act senior most
teacher is required to take over on ad hoc
basis if regular incumbent is not available.

18. In view of the above, I find no
error apparent on the face of record. The
writ
Petition
looks
merit.
It
is,
accordingly, dismissed.
Petition Dismissed.

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