# Jai Prakash Singh v. D.I.O.S., Jaunpur and another

- **Citation:** (2009) 2 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-07
- **Case number:** Civil Misc. Writ Petition No. 1246 of 1993
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-singh-v-d-i-o-s-jaunpur-and-another-41431
- **Pages:** 5

## Headnote

Sri Ajai Kumar Singh
Sri Lal Chandra Srivastava
S.C.

U.P. High School and Inter mediate
Colleges (Payment of Salaries of Teacher
and
other
Employees)
Act,
1971appointment of petitioner as junior clerk
in year 1977-in junior High School-duly
approved by Basic Education Officerapproval order become final-after up
gradation of institution from junior High
School to Uchchatar Madhyamik Vidyalay
in the year 1991-service of petitioner
stood confirmed-payment of salary dined
on ground petitioner being nephew of
manager, appointment itself illegal-mis
conceived
when
petitioner
was
appointed the provision of Inter Mediate
Education
Act
were
not
applicableprohibition
on
appointment
came
existence's in the year 1984-can not be
made
applicable
with
retrospective
effect-petitioner regularly working and
paid salary-direction for difference of
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

salary with 6% per annum interest
given.

Held: Para 12

In the circumstances, the appointment
of the petitioner is held to be legal and
valid as the approval to the appointment
of the petitioner was granted by the
Basic Shiksha Adhikari and the order of
approval passed by the Basic Shiksha
Adhikari has not been either challenged
in this writ petition or controverted any
where. At the time of appointment of the
petitioner as Clerk in Junior High School
in
1977
the
provisions
of
U.P.
Intermediate Education Act were not
applicable, hence they have no relevance
to the appointment of the petitioner.

## Text

2 All] Jai Prakash Singh V. D.I.O.S., Jaunpur and another

703
History has been converted into a
substantive
vacancy
on
30-6-2003.
therefore, the petitioner cannot claim any
right to continue after 30-6-2003 in view
of
the
aforementioned
Full
Bench
decision of this Court .

23. Summing up my conclusions in
the light of the discussions in the
foregoing paragraphs, I hold that the
initial appointment of the petitioner on
adhoc basis to the post of lecturer in
History was on short term vacancy in
accordance with Second Removal of
Difficulties Order, 1981. Thus, the initial
appointment of the petitioner dated 10-101993 is held valid. However, when the
short term vacancy in the post of lecturer
in History was converted into substantive
vacancy on 30-6-2003 after the retirement
of Raj Bahadur Singh, the petitioner
ceased to have any right to continue on
the said post. As such, the continuance of
the petitioner in the institution after 30-62003 cannot be said to be legal or proper
in view of the Full Bench decision of this
Court in Pramila Misra (supra). Even
though the petitioner had no claim to
continue in the post of lecturer in the
institution, the salary or any renumeration
paid to him however may not be
recovered. Henceforth, the petitioner will
neither be entitled to continue in the post
of lecturer in History in the institution nor
to any salary.

24. In the result writ petition is
partly allowed subject to the aforesaid
observations.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 1246 of 1993

Jokhu Lal

...Petitioner
Versus
The
District
Inspector
of
Schools,
Allahabad and others ...Opposite Parties

Counsel for the Petitioner:
Sri Sankatha Rai
Sri H.K. Mishra
Sri S.S. Shukla
Sri Jagannath Singh
Sri Surendra Nath Singh

Counsel for the Respondents:
Sri Ajai Kumar Singh
Sri Lal Chandra Srivastava
S.C.

U.P. High School and Inter mediate
Colleges (Payment of Salaries of Teacher
and
other
Employees)
Act,
1971appointment of petitioner as junior clerk
in year 1977-in junior High School-duly
approved by Basic Education Officerapproval order become final-after up
gradation of institution from junior High
School to Uchchatar Madhyamik Vidyalay
in the year 1991-service of petitioner
stood confirmed-payment of salary dined
on ground petitioner being nephew of
manager, appointment itself illegal-mis
conceived
when
petitioner
was
appointed the provision of Inter Mediate
Education
Act
were
not
applicableprohibition
on
appointment
came
existence's in the year 1984-can not be
made
applicable
with
retrospective
effect-petitioner regularly working and
paid salary-direction for difference of
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

salary with 6% per annum interest
given.

Held: Para 12

In the circumstances, the appointment
of the petitioner is held to be legal and
valid as the approval to the appointment
of the petitioner was granted by the
Basic Shiksha Adhikari and the order of
approval passed by the Basic Shiksha
Adhikari has not been either challenged
in this writ petition or controverted any
where. At the time of appointment of the
petitioner as Clerk in Junior High School
in
1977
the
provisions
of
U.P.
Intermediate Education Act were not
applicable, hence they have no relevance
to the appointment of the petitioner.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

2. The petitioner was appointed as
Clerk in Junior High School Lokmanpur,
District Allahabad on 1st July, 1977. The
said institution is run by a Society which
had initially started the Junior High
School in village Lakmanpur, District
Allahabad. It was granted permanent
recognition with effect from July, 1974 by
letter dated 10th July, 1976 of the Deputy
Director
of
Education
V
Region,
Allahabad.
The
Committee
of
Management of the aforesaid Junior High
School sought approval of the Basic
Shiksha Adhikari for appointment of the
petitioner which was approved from the
date of his appointment i.e. 1st July, 1977.
The aforesaid Junior High School was
upgraded to the level of High School
which was then recognized by the Board
of
High
School
and
Intermediate
Education under the provisions of Section
7-A of the U.P Intermediate Education
Act, 1921. The post of Clerk was also
sanctioned
by
the
Directorate
of
Education, Allahabad vide his order dated
22nd September, 1990. The institution
was taken in grants-in-aid list and as such
the U.P. High School and Intermediate
Colleges
(Payment
of
Salaries
of
Teachers and Other Employees) Act,
1971 became applicable w.e.f. 1st April,
1991.

3. It is claimed that as a
consequence the petitioner who was a
permanent clerk working in the Junior
High
School
since
Ist
July, 1977
automatically became permanent clerk
w.e.f. 23rd December, 1981 of Sarvodaya
Shiksha Sadan Uchchatar Madhyamik
Vidyalaya,
Lokmanpur,
District
Allahabad, according to Regulation 4 read
with Regulation 100 of Chapter II of the
U.P. Intermediate Education Act as the
petitioner
possessed
the
necessary
qualification for appointment as clerk in
the Intermediate College, he was regularly
paid his salary by the Committee of
Management from the date of his
appointment dated 1st July, 1977 till 31st
March, 1991.

4. The grievance of the petitioner is
that the Committee of Management has
submitted his salary bill to the DIOS,
Allahabad from Ist April, 1991 regularly
but his salary was not paid, rather a notice
was sent by the DIOS on 11th June, 1992
to the Committee of Management to show
cause as to why the appointment of the
petitioner as Clerk in the Junior High
School may not be treated as invalid on
the ground that he happened to be the
nephew of the Manager of the institution.
This letter was sent under the Basic
Shiksha Sanhita in which there was
restraint on the appointment of the
relative of the Manager of the institution.
2 All] Jokhu Lal V. The D.I.O.S., Allahabad and others

705
Copy of the notice etc. was not served
upon
the
petitioner.
However,
the
Committee of Management sent a reply of
the aforesaid letter of the DIOS on 20th
October, 1992, which has been appended
as Annexure-VIII to the writ petition.

5. The petitioner also moved a
representation to the respondents on 27th
October, 1992 for payment of salary
w.e.f. Ist April, 1991 which remained
unactioned .

6. In the above backdrop the
petitioner has sought a writ of mandamus
directing the opposite parties to pay his
salary as Clerk from 23rd December,
1991
and
also
to
decide
his
representation.

7. In the counter affidavit filed by
the respondents the Standing counsel has
placed reliance upon paragraphs 5 and 6
in which it has been averred that after the
Junior High School was upgraded a
complaint was received by the DIOS,
Allahabad that the petitioner is real cousin
of the Manager of the institution and on
enquiry it was found to be correct as such
approval for appointment of his salary
was not accorded w.e.f. 1st April, 1991 in
view of the provisions contained in
Section 12(1)(2) of the U.P. Basic
Shiksha Act, 1972. In the circumstances,
the liability for payment of salary to the
petitioner was denied by the DIOS on the
ground that the petitioner could not have
been
appointed
under
the
U.P.
Intermediate
Education
Act
on
its
upgradation.

8. In the rejoinder affidavit the
averments made in the counter affidavit
have been denied as incorrect and further
that the provisions relating to U.P.
Intermediate Education Act relied upon
by the learned counsel for the respondents
are not applicable.

9. It appears that the High Court
vide its ad interim order dated 9.1.1998
after hearing counsel for the parties
directed that until further orders, the
petitioner shall be paid salary of clerk in
the institution in question. The aforesaid
order was later on confirmed by the High
Court vide order dated 20.8.99. Aggrieved
by the aforesaid order dated 20.8.99 the
respondents filed Special Appeal No. 154
of 2000 before the Division Bench of this
Court, which was dismissed vide order
dated 4.4.2000. Then the respondents
approached the Apex Court against the
order dated 4.4.2000 by filing Special
Leave to Appeal (Civil) No.14097/2000,
State of U.P. and others versus Jokhu Lal
and another, which too was dismissed
vide order dated 19.2.2001.

10. After hearing learned counsel for
the parties and on perusal of the record it
emerges that it is not in dispute that the
petitioner was working as permanent
Clerk in Junior High School, Lakmanpur
since 1st July, 1977 and became a
permanent clerk w.e.f. 23rd December,
1981
of
Sarvodaya
Shiksha
Sadan
Uchchatar
Madhyamik
Vidyalaya,
Lokmanpur on its upgradation according
to regulation 4 read with regulation 100 of
Chapter II of the U.P. Intermediate
Education Act but it has not been stated
by the respondents that the petitioner did
not possess requisite qualification for
appointment as clerk. Since no rules were
framed by the State Government at the
relevant time in regard to the appointment
of
the
petitioner
by
which
the
appointment of the relative of the
Manager of the institution was barred,
706 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

hence it can not be said that the petitioner
was not qualified either educationally or
otherwise for being appointed as Clerk in
the Junior High School on its upgradation
in Sarvodaya Shiksha Sadan Uchchatar
Madhyamik Vidyalaya, Lokmanpur. It
may be noted that service rules dealing
with the service condition of the clerk in
Junior High School was framed in the
year 1984. Rule 12 contains the list of
relations of the Manager who can not be
appointed if they are relatives of the
Manager. In the said list nephew is also
mentioned in the category of person who
can not be appointed in the institution in
question as relative of the Manager. Since
the petitioner was appointed in 1977 and
the aforesaid rules came in the year 1984
as such they are not applicable to the case
of the petitioner. Regard may also be had
to the fact that the petitioner was not
appointed afresh on upgradation of the
Junior High School, rather he became
permanent clerk in the institution by
operation of law, therefore, it can not be
said that the Manager had appointed the
petitioner as clerk in the Intermediate
college afresh on its upgradation. The
provisions of Intermediate Education Act,
therefore, have no relevance in case of
appointment of the petitioner,especially
when there was no specific bar in the
appointment of the clerk in 1977 in the
institution. Learned counsel for the
petitioner has taken to the Court to the
averments made in the rejoinder affidavit
wherein it has been stated that complaint
against the petitioner was only due to
enmity and Basic Shiksha Adhikari has
rightly approved the appointment of the
petitioner. In the facts and circumstances
of the case, the initial appointment of the
petitioner was valid and as such he is
entitled to get his salary in view of the
provisions of U.P. High School and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
other
Employees) Act, 1971.

11. No rule or position of law could
be shown by the learned Standing counsel
which prohibits the appointment of the
petitioner as clerk in the Junior High
School at the relevant time in 1977. The
DIOS in his letter/notice dated 11th June,
1992 had made a reference at page 186 of
the Basic Shiksha Sanhita, appended as
Annexure-7 to the writ petition, which
does not apply to the facts of the case. No
opportunity of hearing appears to have
been given to the petitioner by the DIOS
before passing the impugned order and he
has also not received any notice from the
Committee of Management to show cause
as to why his service may not be
terminated as such giving of any reply to
the show cause by the petitioner does not
arise. It has not been denied in the counter
affidavit that the petitioner had in fact
raised this point before the DIOS by his
representation dated 27th October, 1992,
appended as Annexure-9 to the writ
petition though it was received by the
DIOS. A teacher is not expected to keep
record of the office of the DIOS and if the
same is not on the record, the office of the
DIOS is responsible as the representation
of the petitioner had been sent to the
DIOS under registered post AD.

12. In the circumstances, the
appointment of the petitioner is held to be
legal and valid as the approval to the
appointment of the petitioner was granted
by the Basic Shiksha Adhikari and the
order of approval passed by the Basic
Shiksha Adhikari has not been either
challenged in this writ petition or
controverted any where. At the time of
2 All] Jokhu Lal V. The D.I.O.S., Allahabad and others

707
appointment of the petitioner as Clerk in
Junior High School in 1977 the provisions
of U.P. Intermediate Education Act were
not applicable, hence they have no
relevance to the appointment of the
petitioner.

13. For all the reasons stated above,
the impugned order is quashed and the
writ petition is allowed. Since the
petitioner has already been paid his salary
w.e.f. 9.1.98 vide order dated 10.4.2003.
The only direction remains regarding
payment of salary to the petitioner of
clerk in Intermediate College from 23rd
December, 1991 on which it has been
stopped.
The
DIOS,
Allahahabd
is
accordingly, directed to pay arrears of
salary of the petitioner w.e.f. 23rd
December, 1991 till 8.1.98 i.e. the date
from which he is being paid his salary
with interest at the rate of 6% per annum
along with all consequential benefits.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No.1118 of 2009

Smt. Ramawati

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

Counsel for the Appellant:
Sri Deo Dayal
Sri Amulya Ratna Srivastava

Counsel for the Respondents:
Sri Awadhesh Kumar Singh
Sri M.S. Pipersenia, Addl. C.S.C.
Sri R. Yadav

High Court Rules-Chapter VIII Rule-5Special Appeal-against the order passed
by learned Single Judge-petition filed
against the order passed by election
Tribunal-u/s 12-C of U.P. Punchayat Raj
Act-recounting already taken place-not
challenged-under
this
background
petition
dismissed
with
liberty
to
challenge final order if so advised-heldagainst the order passed by TribunalSpecial Appeal not maintainable.

Held: Para 6

We find substance in the submission of
Mr. Pipersenia, learned Additional Chief
Standing Counsel and following the
aforesaid two Division Bench judgments,
hold
that
the
Prescribed
Authority
exercising the power under Section 12-C
of the U.P. Panchayat Raj Act, is a
Tribunal. Once it is held so, the appeal
under Chapter VIII Rule 5 of the
Allahabad High Court Rules, is not
maintainable.
Case law discussed:
(1999) 1 UPLBEC 697, (2008) 1 UPLBEC 538.

(Delivered by Hon'ble C.K. Prasad, CJ.)

1.

Writ
petitioner-appellant,
aggrieved by order dated 30.6.2009
passed by a learned Single Judge in Civil
Misc. Writ Petition No.29110 of 2008,
has preferred this appeal under Rule 5 of
Chapter VIII of the Allahabad High Court
Rules.

2. Short facts giving rise to the
present special appeal are that the writ
petitioner, a successful candidate in the
election of the office of the Gram Pradhan
challenged the order dated 12.6.2008,
whereby the Prescribed Authority in
exercise of the power under Section 12-C
of the U.P. Panchayat Raj Act, had
summoned the ballot papers. In the light