# Jagat Narain Singh v. Director of Education (Secondary) and others

- **Citation:** (2003) 3 ILRA 679
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-03
- **Case number:** Civil Misc. Writ Petition No. 27899 of 1998
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagat-narain-singh-v-director-of-education-secondary-and-others-40159
- **Pages:** 4

## Headnote

Sri S.C. Mishra
Sri S.K. Pal
Sri K.R. Singh
Ms. Manju Chauhan
S.C.

U.P.
Intermediate
Education
Act,
Regulations, Chapt.II, Regulation 6 (6)-
U.P.
Secondary
Education
Services
Selection Board Act 1982, Sec. 32-U.P.
Secondary
Education
Services
Commission Rules 1983, Rule 9-concept
of deemed approval of appointment-as
contained in Regulation 6 (6)-has been
replaced by Rule 9-by virtue of Sec. 32-in
absence
of
specific
period-plea
of
deemed approval-held not sustainable.

Held-Para 5

Even though under Regulation 6 (6) of
chapter 2 of the regulation framed under
U.P. Intermediate Education Act there
was provision that if the D.I.O.S. within
three weeks did not communicate the
decision
on
the
proposal
of
the
promotion
sent
by
committee
of
Management. It would be deemed that
D.I.O.S. had given his concurrence to the
resolution. However, under rule 9 of
1983
Rules
framed
under
the
commission Act, there was no provision
for such deemed approval if commission
did not communicate its decision within
a certain time. By virtue of section 32 of
the commission Act only those provisions
of U.P. Intermediate Education Act and
the regulations made there under in so
far as they are not in consistent with the
provisions of the commission Act or the
rules made there under shall continue to
be in force for the purposes of selection,
appointment, promotion etc of a teacher.
Regulation 6 of chapter 2 having been
virtually replaced by rule 9 of 1983 Rules
framed under the commission Act ceased
to be in force and it was rule 9 of 1983
Rules (as it stood at the relevant time),
which covered the situation.

(B) Service-Appointment-teacher in C.T.
Grade-against a substantive vacancywrongly made on adhoc basis-prescribed
procedure
not
followed-such
appointment held illegal.

Held- Para 4

In my opinion, Director has rightly
decided that vacancy was not a shortterm vacancy. Director has also rightly
held that appointment of the petitioner
on ad-hoc basis on the substantive
vacancy created by promotion of Ram
Raj Singh was illegal as procedure
prescribed
under
first
removal
of
difficulties
order
under
the
ordinance/Act was not followed as held
by the Full Bench of this Court reported
in
Radha
Raijada
1994
(Vol.III)
U.P.L.E.B.C. 1551. In view of this writ
petition filed by J.N. Singh is devoid of
any merit and is dismissed.
Case laws discussed:
1989 (2) UPLBEC 98
2002 (4) ESC 412
1998 (3) UPLBEC 1722
http:\\allahabadhighcourt.nic.in
680 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
2000 (3) ESC 1990
1999 (2) UPLBEC 1420
1992 (2) UPLBEC 1483
2002 (1) SCC 791 and
1999 (3) UPLBEC 1734
1994 (3) UPLBEC 1551

## Text

3 All] Jagat Narain Singh V. Director of Education (Secondary) and others
679
termination of his services till the date of
the award and thereafter workman shall
be entitled for full back wages. The
interim order, if any, stands vacated.
However, there shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2003

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 27899 of 1998

Jagat Narain Singh

...Petitioner
Versus
Director of Education (Secondary) and
others

 ...Respondents

Counsel for the Petitioner:
Sri A.S. Diwekar

Counsel for the Respondents:
Sri S.C. Mishra
Sri S.K. Pal
Sri K.R. Singh
Ms. Manju Chauhan
S.C.

U.P.
Intermediate
Education
Act,
Regulations, Chapt.II, Regulation 6 (6)-
U.P.
Secondary
Education
Services
Selection Board Act 1982, Sec. 32-U.P.
Secondary
Education
Services
Commission Rules 1983, Rule 9-concept
of deemed approval of appointment-as
contained in Regulation 6 (6)-has been
replaced by Rule 9-by virtue of Sec. 32-in
absence
of
specific
period-plea
of
deemed approval-held not sustainable.

Held-Para 5

Even though under Regulation 6 (6) of
chapter 2 of the regulation framed under
U.P. Intermediate Education Act there
was provision that if the D.I.O.S. within
three weeks did not communicate the
decision
on
the
proposal
of
the
promotion
sent
by
committee
of
Management. It would be deemed that
D.I.O.S. had given his concurrence to the
resolution. However, under rule 9 of
1983
Rules
framed
under
the
commission Act, there was no provision
for such deemed approval if commission
did not communicate its decision within
a certain time. By virtue of section 32 of
the commission Act only those provisions
of U.P. Intermediate Education Act and
the regulations made there under in so
far as they are not in consistent with the
provisions of the commission Act or the
rules made there under shall continue to
be in force for the purposes of selection,
appointment, promotion etc of a teacher.
Regulation 6 of chapter 2 having been
virtually replaced by rule 9 of 1983 Rules
framed under the commission Act ceased
to be in force and it was rule 9 of 1983
Rules (as it stood at the relevant time),
which covered the situation.

(B) Service-Appointment-teacher in C.T.
Grade-against a substantive vacancywrongly made on adhoc basis-prescribed
procedure
not
followed-such
appointment held illegal.

Held- Para 4

In my opinion, Director has rightly
decided that vacancy was not a shortterm vacancy. Director has also rightly
held that appointment of the petitioner
on ad-hoc basis on the substantive
vacancy created by promotion of Ram
Raj Singh was illegal as procedure
prescribed
under
first
removal
of
difficulties
order
under
the
ordinance/Act was not followed as held
by the Full Bench of this Court reported
in
Radha
Raijada
1994
(Vol.III)
U.P.L.E.B.C. 1551. In view of this writ
petition filed by J.N. Singh is devoid of
any merit and is dismissed.
Case laws discussed:
1989 (2) UPLBEC 98
2002 (4) ESC 412
1998 (3) UPLBEC 1722
http:\\allahabadhighcourt.nic.in
680 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
2000 (3) ESC 1990
1999 (2) UPLBEC 1420
1992 (2) UPLBEC 1483
2002 (1) SCC 791 and
1999 (3) UPLBEC 1734
1994 (3) UPLBEC 1551

(Delivered by Hon'ble S.U. Khan, J.)

1. J.N. Singh, petitioner in the first
writ petition and B.P. Singh petitioner in
the
second
writ
petition
are
rival
claimants for one post of teacher in Sri
Laxmi
Narain
Uchtar
Madhyamik
Vidyalay Meja, Allahabad (hereinafter
referred to as the college). Director of
education by order-dated 22.4.1998 has
negatived the claim of both. The Director
passed the order on appeal of J.N. Singh,
which
was
filed
in
pursuance
of
judgment-dated
11.11.1997
given
in
special appeal, by this court, which was
filed by J.N. Singh. Judgment of the
special appeal No. 270 of 1995 is
annexure 7 and consequent order of the
Director is annexure 8 to the first of the
aforesaid writ petitions filed by J.N.
Singh.

2. In the judgment of the aforesaid
special appeal it was directed that the
Director of Education shall decide the
appeal after providing opportunity of
hearing to the parties. It was observed that
"matter should be considered by the
Director of Education who will consider
the
validity
or
otherwise
of
the
appointments of the appellant (i.e. J.N.
Singh) and respondent No. 3 (i.e. B.P.
Singh). It has been argued on behalf of
J.N. Singh that an earlier order of D.I.O.S.
against B.P. Singh was not challenged
hence it became final. His argument is not
entertain able as
in view of the
observations in the judgment of special
appeal. The Director was required to
decide the entire matter afresh.

3. The brief facts of the case are that
late Sri R.N. Singh, a teacher in L.T.
Grade died in harness on 10.4.1985.
Committee of Management proposed
promotion of Ram Raj Singh, a C.T.
Grade teacher and the proposal was sent
to
D.I.O.S.
on
19.10.1985.
This
proposal/recommendation was accepted/
approved on 16.3.1988 by the U.P.
Secondary
Education
services
Commission and in pursuance thereof
Ram Raj Singh joined on 25.4.1988.
Petitioner R.N. Singh claims to have been
appointed on 11.2.1989 on the post of
C.T. Grade teacher falling vacant due to
promotion of Ram Raj Singh of L.T.
Grade. In the writ petition of J.N. Singh it
has been stated in para 16 to 19 that Ram
Raj Singh was promoted on substantive
vacancy under first removal of difficulties
order 1981 framed under the U.P.
Secondary Education Service commission
ordinance/Act). Meaning thereby that the
promotion of Ram Raj Singh was ad-hoc
and to remain in operation until regularly
selected
candidate
selected
by
the
commission joined. It has further been
asserted in the said writ petition that in
this manner a short-term vacancy came
into existence in C.T. Grade against
which petitioner J.N. Singh was appointed
on 11.2.1989. In the counter affidavit on
behalf of the Director and Deputy
Director of education, it has been stated in
para 4 that on 16.3.1988 approval of
promotion of Ram Raj Singh was granted
by the commission, under rule 9 of 1983
rules framed under the Act (as existed at
the
relevant
time).
Approval
of
commission was required only if the
promotion was on the post of to be filled
by promotion under promotion quota of
http:\\allahabadhighcourt.nic.in
3 All] Jagat Narain Singh V. Director of Education (Secondary) and others
681
40% (as applicable at the relevant time)
under chapter 2 Regulation 5 and 6 of the
regulations
framed
under
U.P.
Intermediate
Education
Act.
It
is,
therefore, abundantly clear that promotion
of Ram Raj Singh approved by the
commission was substantive and final in
nature and not ad-hoc until candidate
selected by the commission joined.
Consequently
the
vacancy,
which
occurred in C.T. Grade due to promotion
of Ram Raj Singh under promotion quota
and its approval by commission, was the
substantive vacancy and not a short-term
vacancy. In the rejoinder affidavit of J.N.
Singh in para 3 this fact has not been
denied that approval-dated 16.3.1988 was
granted by the commission. However, it
has been stated therein that it was
wrongly granted by the commission and it
ought to have been granted by the
D.I.O.S. By way of elaboration it has
been stated that if it had been an
appointment
under
promotion
quota
names of three persons would have been
forwarded. Under chapter 2 Regulations 5
and 6 and rule 9 of 1983 rules framed
under the commission Act only those
teachers
who
possess
minimum
qualification
for
teaching
subject
concerned and five years experience shall
be considered of promotion. It is quite
possible that apart from Ram Raj Singh
no other teacher was available for
promotion hence no other name was
forwarded
by
the
committee
of
management. In any case approval dated
16.3.1988 granted by the commission was
neither challenged in any of the earlier
writ petition nor in the instant writ
petition, hence its validity can not be
questioned by the petitioner J.N. Singh.

4. In my opinion, Director has
rightly decided that vacancy was not a
short-term vacancy. Director has also
rightly held that appointment of the
petitioner on
ad-hoc basis
on
the
substantive vacancy created by promotion
of Ram Raj Singh was illegal as
procedure prescribed under first removal
of
difficulties
order
under
the
ordinance/Act was not followed as held
by the Full Bench of this Court reported
in
Radha
Raijada
1994
(Vol.III)
U.P.L.E.B.C. 1551. In view of this writ
petition filed by J.N. Singh is devoid of
any merit and is dismissed.

5. As far as the second writ petition
of B.P. Singh is concerned it is liable to
be dismissed only on the ground that
according to the said petition he was
appointed on 1.9.1986 when there was no
vacancy. Ram Raj Singh was selected for
appointment
by
promotion
by
the
commission on 16.3.1988 and joined the
post on 25.4.1988 hence there cannot be
said to be any vacancy before 25.4.1988.
Even though under Regulation 6 (6) of
chapter 2 of the regulation framed under
U.P. Intermediate Education Act there
was provision that if the D.I.O.S. within
three weeks did not communicate the
decision on the proposal of the promotion
sent by committee of Management. It
would be deemed that D.I.O.S. had given
his
concurrence
to
the
resolution.
However, under rule 9 of 1983 Rules
framed under the commission Act, there
was no provision for such deemed
approval
if
commission
did
not
communicate its decision within a certain
time. By virtue of section 32 of the
commission Act only those provisions of
U.P. Intermediate Education Act and the
regulations made there under in so far as
they are not in consistent with the
provisions of the commission Act or the
rules made there under shall continue to
http:\\allahabadhighcourt.nic.in
682 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
be in force for the purposes of selection,
appointment, promotion etc of a teacher.
Regulation 6 of chapter 2 having been
virtually replaced by rule 9 of 1983 Rules
framed under the commission Act ceased
to be in force and it was rule 9 of 1983
Rules (as it stood at the relevant time),
which
covered
the
situation.
Consequently writ petition filed by B.P.
Singh is also liable to be dismissed.

6. Learned counsel for the petitioner
B.P. Singh has cited the following
authorities:-

(1) 1989(2) U.P. L.B.E.C.98,
(2) 2002(4) E.S.C. 412,
(3) 1998(3) U.P.L.B.E.C. 1722,
(4) 2000(3) E.S.C. 1670,
(5) 2000(3) E.S.C. 1990.
(6) 1999(2) U.P.L.B.E.C. 1420,
(7) 1992(2) U.P.L.B.E.C. 1483.
(8) 2002(1) S.A.C. 791 and
(9) 1999(3) U.P.L.B.E.C. 1734

7. The first authority deals with
promotion
under
first
removal
of
Difficulties order. In the instant case
promotion of Ram Raj Singh was under
Chapter II Regulation 5 and 6 and rule 9
of 1983 Rules, hence the said authority is
not applicable to the facts of the case. The
second authority also deals with ad-hoc
promotion over and above the 40 %
quota. The 3rd, 4th, 5th, 6th, 8th and 9th
authorities deal with the appointment on
short terms vacancies, which are not
applicable to the facts of the case. Sri
Ram Raj Singh was promoted on
permanent basis in 1988, giving rise to a
substantive vacancy. Until acceptance/
approval of promotion of Ram Raj Singh
under 40% quota by the Commission, no
vacancy either substantive or short term
came into existence, hence alleged
appointment of B.P. Singh in 1986 was
against no vacancy.

8. As far as 7th authority, reported in
1992(2) UPLBEC 1483 is concerned, it is
also not applicable to the facts of the case
as in that authority the matter pertained to
the valid appointment of teacher in CT
Grade before 20.6.1989. In the said
authority the only question considered
was that of applicability of circular dated
20.6.1989.

9. The Director in his order dated
22.4.1998 has rightly directed committee
of
management,
D.I.O.S.,
Regional
Deputy Director of Education, Joint
Director of Education to take immediate
steps to make the appointment against the
post in dispute. The said directions must
be complied with by the concerned
authorities forthwith.

Competent authority/body must be
passed within six months from the
production of certified copy of this order.

Accordingly writ petition is allowed
as aforesaid.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 1256 of 1997

M/S. Gangeshwar Limited ...Petitioner
Versus
Presiding
Officer,
Labour
Court,
Dehradun and another ...Respondents

Counsel for the Petitioner:
Sri Vinod Sinha
Sri S.P. Singh
http:\\allahabadhighcourt.nic.in