# Jagmohan Shukla v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-01
- **Case number:** Civil Misc. Writ Petition No. 53992 of 2009
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagmohan-shukla-v-state-of-u-p-and-others-41397
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act, 1921Section 16 E(10)-Power of Reviewpetitioner was regularized as lecturer by
the Board on 21.12.1994-Joint Director
revised by order dated 24.09.2009-No
allegation of fraud or concealment of
facts
on
part
of
petitioner-wholly
without
jurisdiction-except
DirectorJoint Director has no role to play after 19
years.

Held: Para 18

Learned counsel for the Committee of
Management and the learned counsel for
the respondent no. 5 have urged that it
was not open to the petitioner to
question
the
regularisation
of
the
respondent nos. 5 and 6, inasmuch as,
the Regional Joint Director of Education
has no power to review the same as
there was no fraud or misrepresentation
and secondly even if the regularisation
order was infirm on any count, then the
same could have set aside only by the
Director of Education under Section 16E(10) or their removal could have been
given effect to through an approval by
the U.P. Secondary Education Services
Selection Board. This argument need not
detain this Court, inasmuch as, while
considering the case of the petitioner on
the question of regularisation herein
above, it has been held that the Regional
Joint Director of Education has no power
to review the regularisation order of the
petitioner, and as such, similarly on the
same reasoning the said authority had
no
power
to
review
the
claim
of
regularisation of the respondent nos. 5
and 6, which was not obtained by any
fraud or misrepresentation.

## Text

1124 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
allegations as contained in the impugned
order of suspension. In my view, for this
reason also, the writ petition deserves to
sustain.

17. In the result, the writ petition
succeeds and is allowed. The impugned
order of suspension dated 30.6.2005
passed by respondent no.2 is hereby
quashed. The petitioner shall be entitled
to all consequential benefits. No order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 53992 of 2009

Jagmohan Shukla

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

Counsel for the Petitioner:
Sri Ramesh Upadhyaya

Counsel for the Respondents:
Sri Pradeep Kumar
C.S.C.

U.P. Intermediate Education Act, 1921Section 16 E(10)-Power of Reviewpetitioner was regularized as lecturer by
the Board on 21.12.1994-Joint Director
revised by order dated 24.09.2009-No
allegation of fraud or concealment of
facts
on
part
of
petitioner-wholly
without
jurisdiction-except
DirectorJoint Director has no role to play after 19
years.

Held: Para 18

Learned counsel for the Committee of
Management and the learned counsel for
the respondent no. 5 have urged that it
was not open to the petitioner to
question
the
regularisation
of
the
respondent nos. 5 and 6, inasmuch as,
the Regional Joint Director of Education
has no power to review the same as
there was no fraud or misrepresentation
and secondly even if the regularisation
order was infirm on any count, then the
same could have set aside only by the
Director of Education under Section 16E(10) or their removal could have been
given effect to through an approval by
the U.P. Secondary Education Services
Selection Board. This argument need not
detain this Court, inasmuch as, while
considering the case of the petitioner on
the question of regularisation herein
above, it has been held that the Regional
Joint Director of Education has no power
to review the regularisation order of the
petitioner, and as such, similarly on the
same reasoning the said authority had
no
power
to
review
the
claim
of
regularisation of the respondent nos. 5
and 6, which was not obtained by any
fraud or misrepresentation.

(Delivered by Hon'ble A.P. Sahi, J.)

1. The dispute relates to the
regularisation of the petitioner as a
Lecturer in Mathematics and his seniority
in that cadre as against the respondent
nos. 5 and 6. The provisions governing
the dispute are contained in the U.P.
Secondary Education Services Selection
Board
Act,
1982
and
the
U.P.
Intermediate Education Act, 1921.

2. This writ petition has been filed
questioning the order dated 24.09.2009
whereby the Regional Joint Director of
Education has annulled the regularisation
of the petitioner, which was granted on
21.12.1994.
The
other
order
under
challenge is dated 6th October, 2009,
whereby
the
seniority
has
been
determined between the petitioner and the
respondent nos. 5 and 6.
3 All] Jagmohan Shukla V. State of U.P. and others
1125
3. Shri Ramesh Upadhyaya, learned
counsel for the petitioner contends that
the order dated 24.09.2009 has been
passed without there being any occasion
to do so and further the same is without
jurisdiction as the regularisation order
dated 21.12.1994 could not have been
annulled by way of a review by the
Regional Joint Director of Education nor
the Joint Director of Education could have
cancelled the appointment as such power,
according to the petitioner, is possessed
with the Director of Education under
Section 16-E(10) of the U.P. Intermediate
Education Act, 1921. Shri Upadhyaya
contends that the petitioner once having
been regularised under the provisions of
the statutes is an employee in a
substantive
capacity
and
therefore
cancellation of his appointment does not
fall within the jurisdiction of the Regional
Joint Director of Education.

4. So far as, the question of seniority
is concerned, Shri Upadhyaya contends
that the petitioner was appointed on 1st
October, 1989 in an ad hoc capacity and
his appointment was also approved by the
District Inspector of Schools, as such he
will be deemed to be senior than the
respondent nos. 5 and 6.

5. Counter affidavits have been filed
on behalf of the respondent nos. 4 and 5
and the learned standing counsel for the
respondent nos. 1, 2 and 3.

6. The impugned order dated
24.09.2009 has been supported by the
learned counsel for the respondents
contending
that
the
petitioner's
regularisation
could
not
have
been
granted in view of the fact that Section
33-B of the U.P. Secondary Education
Selection Board, 1982 was not attracted.
7. Shri B.P. Singh, learned Senior
Counsel and Shri Pradeep Kumar for the
respondent-Committee of Management
contend that Section 33-B was introduced
w.e.f. 7th August, 1993 and in view of the
provisions of the said section, the
petitioner could not have claimed either
regularisation in service or any claim of
substantive appointment prior to his
actual regularisation under the said
section. They urge that the procedure
provided therein is that the selection has
to be processed under Section 33-B where
after the Management has to appoint the
concerned candidate and it is from the
date of such appointment that the
candidate will be presumed to have been
appointed in substantive capacity. Shri
Singh contends that the petitioner was
admittedly
considered
for
such
appointment under the order of the
Competent
Authority
dated
21st
December, 1994 and therefore there is no
occasion for the petitioner to claim his
substantive appointment prior to that date.

8. Learned standing counsel and
Shri Uma Nath Pandey, learned counsel
for the respondent no. 5 also adopted the
same argument and urged that the claim
of the petitioner has to be assessed on the
strength of the provisions of Section 33-B
which clearly lay down that the date of
appointment of the petitioner would be
the date as noticed hereinabove.

9. Having heard learned counsel for
the parties, the question that arises for
determination is as to whether the
petitioner could have been regularised or
not. The petitioner was appointed in an ad
hoc capacity and his regularisation could
have been considered only in terms of
U.P. Act No. 1 of 1993, which was
enforced w.e.f. 7th August, 1993. The date
1126 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of enforcement of the Act is therefore
clear and the claim of the petitioner
cannot precede the said date. Apart from
this, the procedure provided under Section
33-B is amply clear, which narrates that
each region there shall be a Selection
Committee and the claim for a person for
regularisation shall be processed by the
said Selection Committee where after the
appointment
will
be
offered
in
a
substantive capacity.

10. In the instant case, it is
undisputed
that
the
petitioner
was
considered by the Selection Committee
and the said consideration crystallized
into
the
order
dated
21.12.1994.
Accordingly, he petitioner cannot claim
any substantive appointment prior to
21.12.1994. This Court is therefore of the
opinion
that
the
petitioner
stood
regularised
under
the
order
dated
21.12.1994.

11. The impugned order dated
24.09.2009 proceeds on the presumption
that the petitioner could not have been
regularised as the post against which he
had been appointed on ad hoc basis
became
substantively
vacant
on
16.08.1994 upon the regularisation of Shri
Man Mohan Singh Chaturvedi. The
aforesaid reasoning does not appear to be
correct in law, inasmuch as, Shri Man
Mohan Singh was appointed on ad hoc
basis as a Principal on 1st July, 1985. He
was regularised in his services as a
Principal and such regularisation is
permissible in terms of Section 33-A (1C). However, this Court need not go into
that, inasmuch as, treating the post to
have become vacant in the substantive
capacity, the services of the petitioner
have been regularised by the Authority on
21.12.1994 itself.
12. There was no fraud or
misrepresentation relating to the fact of
claim of regularisation of the petitioner.

13. In this view of the matter, the
Regional Joint Director of Education was
not empowered to review the same,
inasmuch as, it is only on the limited
ground of fraud or misrepresentation that
such review was permissible. The Court is
supported in its view by two Division
Bench decisions in the case of Havaldar
Singh Vs. U.P. Shiksha Nideshak, VII
Mandal, Gorakhpur and others 1976
AWC 123 and in the case of Radhey
Shyam Chaube Vs. The District Inspector
of Schools, Jaunpur and others 1978
AWC 40.

14. In the absence of any such
jurisdiction to review the regularisation
order of the petitioner, in my opinion, the
impugned
order
is
in
excess
of
jurisdiction to that extent. The order dated
24.09.2009, insofar as, it annuls the
regularisation of the petitioner cannot be
sustained and is accordingly quashed. The
resolution
of
the
Committee
of
Management to that effect is also set aside
as the same Management itself had
proposed the promotion of the petitioner
and it therefore was estopped from
reviewing its earlier decision. Even
otherwise the Committee had no power to
sit in appeal over the regularisation order
passed by the authorities.

15. Apart from this, once the
petitioner was continuing, having been
substantively appointed under Section 33B of the 1982 Act, he could not have been
removed by the Committee except on an
approval by the Selection board under
Section 21 of the 1982 Act or by an order
of the Director of Education under
3 All] Jagmohan Shukla V. State of U.P. and others
1127
Section 16-E (10) of the 1921 Act. In this
view of the matter also, the Joint Director
has
travelled
beyond
the
powers
prescribed under the Statute as such the
action is unsustainable on that score as
well.

16. The dispute relating to seniority
between the petitioner and the respondent
nos. 5 and 6 was sought to be agitated by
the
petitioner
by
questioning
the
regularisation of the said respondent nos.
5 and 6 as being against law. As a matter
of fact, the petitioner who was sailing in
the same boat, sought to dislodge the
seniority by questioning the regularisation
of the respondent nos. 5 and 6 and for this
the petitioner filed a Civil Misc. Writ
Petition No. 37282 of 2009, which was
disposed of on 28th July, 2009. A copy of
the said judgment has been filed as
annexure 15 to the writ petition. The
petitioner was given the liberty to
ventilate
his
grievances
through
a
representation before the Regional Joint
Director of Education whereupon the said
authority proceeded to examine the claim
of the petitioner as well.

17. Shri Ramesh Upadhyaya,
learned
counsel
for
the
petitioner
contends that the dispute of seniority
required determination in the light of the
fact that the regularisation of the
respondent nos. 5 and 6 was illegal and
consequently if their regularisation is
found to be against law their claim to
substantive appointment will fall through
and the petitioner would automatically
become senior. The said dispute relating
to seniority has been decided by the
authority
under
the
order
dated
06.10.2009, which has been challenged in
the
present
petition
through
an
amendment
application,
which
was
allowed on 21.10.2009.

18. Learned counsel for the
Committee of Management and the
learned counsel for the respondent no. 5
have urged that it was not open to the
petitioner to question the regularisation of
the respondent nos. 5 and 6, inasmuch as,
the Regional Joint Director of Education
has no power to review the same as there
was no fraud or misrepresentation and
secondly even if the regularisation order
was infirm on any count, then the same
could have set aside only by the Director
of Education under Section 16-E(10) or
their removal could have been given
effect to through an approval by the U.P.
Secondary Education Services Selection
Board. This argument need not detain this
Court, inasmuch as, while considering the
case of the petitioner on the question of
regularisation herein above, it has been
held that the Regional Joint Director of
Education has no power to review the
regularisation order of the petitioner, and
as such, similarly on the same reasoning
the said authority had no power to review
the claim of regularisation of the
respondent nos. 5 and 6, which was not
obtained
by
any
fraud
or
misrepresentation.

19. The respondent no. 5 was
appointed as a lecturer of Commerce on
ad hoc basis, which was approved on
30.11.1988. The said approval was
cancelled on 02.01.1990. During the
pendency of the said writ petition, the
claim of the respondent no. 5 was
examined for regularisation and the same
was extended in his favour vide order
dated
27.10.1994.
After
the
said
regularisation order had been passed a
statement was made on behalf of the said
1128 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
respondent in Writ Petition No. 1157 of
1990 that in view of the order of
regularisation passed in his favour the
writ petition be consigned to records.
Taking notice of the said facts, this Court
dismissed the writ petition as infructuous
on 28.09.2004. A copy of the said order
has been brought on record through the
counter affidavit filed on behalf of the
respondent no. 5. It is further evident that
the respondent no. 5 stood regularised and
the dismissal of the writ petition as
infructuous was coupled by noticing the
fact that the services had been regularised.

20. In this view of the matter, the
question
of
regularisation
of
the
respondent no. 5 stood foreclosed. Thus
there was no occasion to review the
regularisation of the respondent no. 5.
However, the order of the Joint Director
of Education in relation to the respondent
no. 5 that the said regularisation would
take effect under Section 33-B of the Act
appears to be justified as he could not
have
been
given
the
benefit
of
regularisation
under
Section
33-A.
However no final opinion is expressed
thereon as the regularisation of the
respondent no. 5 is still in jeopardy in
Special Appeal No. 1603 of 2004, which
is stated to be pending at the instance of
one Shri R.N. Sharma.

21. So far as, the respondent no. 6 is
concerned, it is evident from the records
that he was regularised w.e.f. 29.05.1992.
In view of this, the regularisation of the
respondent also cannot be now reopened
after 17 years at the behest of the
petitioner, who has been given the benefit
of regularisation under the order dated
21.12.1994.

22. The order dated 6th October,
2009 however incorrectly records the
reason for placing the petitioner to be
junior namely that the regularisation order
has been cancelled. To that extent the
order dated 06.10.2009 is erroneous.

23. Accordingly, the order dated
06.10.2009 is set aside to the aforesaid
extent and the Regional Joint Director of
Education shall pass orders in the light of
the observations made hereinabove within
a period of 6 weeks from the date of
presentation of a certified copy of this
order before the said respondent and after
perusing the respective contentions of the
parties.

24. The writ petition is allowed
subject
to
the
directions
contained
hereinabove.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No. 1967 of 2009

Committee of Management, Rashtreey
Uchhatar Madhyamik Vidyalay, Rudauli,
Auraiya and another

...Appellants
Versus
Sri Ram Babu Dwivedi and others

 ...Respondents

Counsel for the Appellants:
Shri H.R. Mishra
Sri Uma Nath Pandey

Counsel for the Respondents:
Shri M.D. Singh 'Shekhar'
Sri D.P. Mishra
C.S.C.