# Kamla Prasad Chaurasia 7866(S/S) 2005 v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1291
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-17
- **Case number:** Special Appeal No. 528 of 2015
- **Bench:** Dinesh Maheshwari, Anant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamla-prasad-chaurasia-7866-s-s-2005-v-state-of-u-p-ors-43309
- **Pages:** 6

## Headnote

High Court Rules, 1956-Chapter VIII
Rules-5-Special
Appeal-Single
Judge
dismissed writ petition-finding that the
1292
 INDIAN LAW REPORTS ALLAHABAD SERIES
day on which vacancy of lecturer occurspetitioner
already
got
requisite
qualification-held
misconceived-vacancy
notified on 02.07.01-teaching experience of
as lecturer-not there-5 years experience
completed
only
on
08.10.01-Appeal
dismissed.
Held: Para-13
In view of the above observations and
applying the illustration of Malik Mazhar
Sultan (supra), the inescapable conclusion
is that the relevant date of first July for the
recruitment in question would be of the
calendar year of 2001 i.e., 01.07.2001. The
petitioner-appellant was admittedly not
having the requisite qualification on the
said date of reckoning as he had completed
5 years of service only on 08.10.2001.
Case Law discussed:
2006 (2) ESC 171

## Text

3 All] Kamla Prasad Chaurasia 7866(S/S) 2005 Vs. State of U.P. & Ors.
1291
was challenged by the beneficiaries and the
matter was carried upto the Supreme Court.
In the meantime, during pendency of the
civil appeal in the Supreme Court, the
property was transferred. In that context, the
Supreme Court held that at the time of
purchasing of the suit land by the petitioners,
the matter was subjudice before the Supreme
Court and if the order of denotification was
quashed, it would automatically revive the
land acquisition proceedings. In the said
facts, the Supreme Court applied the doctrine
of lis pendens and the Court held that the
transferee cannot deprive the successful
plaintiff of the fruits of the decree if he
purchased the property pendente lite. For the
said reason, the said case also does not come
to the aid of the respondent-plaintiff.
44. In view of the discussions made
above, I am of the considered view that
the order of the trial Court dated 23rd
April, 2003 rejecting the application of
the applicants for their impleadment and
recall of the order dated 02nd April, 2003
to proceed exparte is illegal and is liable
to be set aside. Accordingly, it is set
aside. The impleadment application filed
by the applicants before the trial Court
needs to be allowed and is allowed for
proper adjudication of the issues in the
interest of justice.
45. Consequently, the order dated
08th May, 2003 recording findings in
compliance with the order of this Court,
as directed by the Supreme Court, is
required to be set aside on account of the
same having been recorded exparte,
which is against the direction of the
Supreme Court given in the order dated
16th January, 2002 for giving opportunity
to the parties to lead the evidence. Hence,
the order dated 08th May, 2003 passed by
the trial Court is set aside. The matter is
remitted to the trial Court to give
opportunity to the applicants to lead the
evidence, if they desire so, and after
giving opportunity to both the parties, and
to return its findings on both the issues, as
framed
by
this
Court,
afresh,
expeditiously
preferably
within
four
months from the date of receipt of the
record.
46. Accordingly, the impleadment
application and the objection filed by the
applicants are allowed. No order as to
costs.
47. Let the lower court record be
sent to the concerned court. 3
48. List the appeal after receipt of
the findings of the trial Court along with
the record.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.11.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE ANANT KUMAR, J.
Special Appeal No. 528 of 2015
Kamla Prasad Chaurasia 7866 (S/S)
2005
 ...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Pradeep Shukla
Counsel for the Respondents:
C.S.C., Pramendra Kumar Singh, Ravi
Kishore Joshi
High Court Rules, 1956-Chapter VIII
Rules-5-Special
Appeal-Single
Judge
dismissed writ petition-finding that the
1292
 INDIAN LAW REPORTS ALLAHABAD SERIES
day on which vacancy of lecturer occurspetitioner
already
got
requisite
qualification-held
misconceived-vacancy
notified on 02.07.01-teaching experience of
as lecturer-not there-5 years experience
completed
only
on
08.10.01-Appeal
dismissed.
Held: Para-13
In view of the above observations and
applying the illustration of Malik Mazhar
Sultan (supra), the inescapable conclusion
is that the relevant date of first July for the
recruitment in question would be of the
calendar year of 2001 i.e., 01.07.2001. The
petitioner-appellant was admittedly not
having the requisite qualification on the
said date of reckoning as he had completed
5 years of service only on 08.10.2001.
Case Law discussed:
2006 (2) ESC 171
(Delivered by Hon'ble Dinesh Maheshwari, J.)
1. By way of this intra-Court appeal,
the petitioner of Service Single No.7866
of 2005, seeks to question the order dated
01.09.2015 whereby the learned Single
Judge has rejected the writ petition that
was preferred on his claim for promotion
on the post of Lecturer (English) after
holding that the petitioner-appellant was
not
possessed
of
the
requisite
qualification of 5 years' regular service as
LT Grade Teacher on the relevant date.
2. This appeal is reportedly time
barred by 28 days. Having regard to the
circumstances, while ignoring the delay,
we have heard the learned counsel for the
petitioner-appellant on merits.
3. After having heard the learned
counsel and having perused the material
placed on record, we are unable to find
any reason to consider interference in the
order impugned.
4. The factual aspects of the matter
are not much in controversy. The
petitioner-appellant was appointed on the
post of LT Grade Teacher on 09.10.1996
and hence, he completed 5 years of
continuous service on 08.10.2001. The
case of the appellant had been that upon
retirement of one incumbent holding the
post of Lecturer (English), this post fell
vacant on 30.06.2001. According to the
appellant, the Committee of Management
of his employer Sri Shankaracharya Inter
College Baldirai, Sultanpur, commenced
the process of selection for the post of
Lecturer (English) on 06.01.2002, and on
this date, he alone was eligible for the
post in question. The petitioner-appellant
has averred that the necessary formalities
were not completed by the Management
for about 2 years until the District
Inspector
of
Schools
directed
the
Management to submit the documents
relating to the post in question by his
letter
dated
22.01.2003
which
was
followed by other communications dated
21.02.2004
and
24.06.2004.
The
petitioner-appellant has further submitted
that the Committee of Management was
dissolved on 30.07.2004 whereafter, the
District Inspector of Schools became the
Authorized Controller who took necessary
steps and forwarded the document for
approval to the Joint Director Education
Faizabad Region, Faizabad who, in turn,
rejected the proposal for promotion of the
petitioner-appellant on the ground that he
had not completed 5 years of continuous
service on 01.07.2001, the date on which
the post of Lecturer (English) fell vacant.
5. With reference to the U.P.
Secondary Education Services Selection
Board Rules, 1998 ('the Rules'/ 'the Rules
of
1998)
the
petitioner-appellant
submitted that as per the Rules and
3 All] Kamla Prasad Chaurasia 7866(S/S) 2005 Vs. State of U.P. & Ors.
1293
interpretation thereof by the Court, the
candidate
should
be
eligible
for
promotion on the first date of the year of
recruitment or commencement of process
of recruitment; and, as the process was
initiated in this case admittedly in the
month of January, 2002, he was clearly
possessed of the requisite qualification on
the relevant date. The petitioner-appellant
also referred to the Larger Bench decision
dated 14.05.2015 of this Court in the case
of Raeesul Hasan. Vs. State of U.P. and
others (Writ Petition No.1593 (S/S) of
2001 and other connected matters).
6. The learned Single Judge found
the said Larger Bench decision being not
of any help to the petitioner-appellant
and, rather the ratio thereof operating
against his claim. The learned Single
Judge, therefore, proceeded to decline the
claim as made by the petitioner-appellant
but left it open for consideration if the
vacancy in question was referable to
promotion quota or was being filled up by
way of promotion. The learned Single
Judge proceeded to dispose of the writ
petition while observing as under:-
"On a close scrutiny of the aforesaid
Full Bench judgement, it is evident that a
candidate in the zone of eligibility is
bound to fulfill requisite qualification as
on the date 1st July of the recruitment
year in which the vacancy is filled up.
The selection process in the present case
initiated on 6.1.2002 would necessarily
require completion of five years' of
regular service as on 1.7.2001, therefore,
the submission of the learned counsel for
the petitioner does not appear to be wellfounded on the strength of case law
referred by him. On the contrary the
proposition laid down by the Full Bench
proceeds to his disadvantage.
The impugned order thus, stands in
consonance
with
the
Full
Bench
judgement and needs no interference by
this Court under Article 226 of the
Constitution.
However, it is provided that in case
the
vacancy
in
question
falls
in
promotional quota or is to be filled in by
way of promotion and has not yet been
filled in, the candidature of the petitioner
for promotion against the said post shall
be considered by the respondents strictly
in accordance with rules.
The writ petition is disposed of
accordingly."
7. Seeking to question the order
aforesaid,
learned
counsel
for
the
appellant has strenuously argued that the
learned Single Judge has erred in
assuming that for the selection process in
question, the requirement of completion
of 5 years of regular service would be
referable to the date 01.07.2001. Learned
counsel for the petitioner-appellant would
argue that in view of the Larger Bench
Decision of this Court, the year of
recruitment would be the year 2004 when
the
Authorized
Controller
and
the
Principal of the College sent the proposal
for promotion. The learned counsel has
further attempted to argue that as per
Section 2 (1) of the U.P. Secondary
Education (Services Selection Board) Act,
1982 ['the Act of 1982'] the year of
recruitment is the period of 12 months
commencing from the first day of July of
a calendar year and hence in the present
case, even if we assume that the process
of
selection
was
commenced
on
06.01.2002, the year of recruitment would
only be a period of 12 years commencing
from the first day of July of the calendar
year 2002 and by that date, the petitionerappellant had already completed 5 years
1294
 INDIAN LAW REPORTS ALLAHABAD SERIES
service. The submissions made on behalf
of the petitioner-appellant fall short of
merit and remain untenable.
8. The vacancy in question arose on
01.07.2001. Indisputably, the process of
selection was initiated by the Committee
of Management on 06.01.2002. Any other
but subsequent dealings for completion of
process cannot alter the basic date of its
initiation, i.e., 06.01.2002.
9. This much of the controversy has
already been settled with the above referred
decision of this Court in Raeesul Hasan
(supra) that for the purpose of the Rules in
question, it is not the date of occurrence of
vacancy but it is the year of recruitment
which is relevant for determination of
eligibility for promotion. The Larger Bench
of this Court has answered the reference in
the following terms:-
"For these reasons, we answer the
reference by holding that it is not the date
on which the vacancy has occurred, but the
year of recruitment which is relevant for the
determination of eligibility for promotion to
the Lecturers' grade under the Rules of
1998. The reference is answered in the
aforesaid terms. All the writ petitions shall
now be placed before the regular Bench
according to roster for disposal in the light
of the present judgment."
10. It is noticed that although, in the
earlier Rules of the year 1983, in the
process of recruitment by promotion, the
requirement spelt out in Rule 9 thereof
had been of 5 years of continuous service
as a Teacher on the date of occurrence of
vacancy but in the subsequent Rules of
1995, a significant departure was made
and the requirement was provided as 5
years of continuous service as on the first
day of the year of recruitment that has
been maintained in the Rules of 1998 but
with further modulation as being that of 5
years of continuous regular service. These
changes have been noticed by the Larger
bench in Raeesul Hasan (supra) in the
following:-
"In Rule 14 of the Rules of 1998, a
change has been brought about from the
corresponding provision of Rule 14 (1) of the
Rules of 1995, inter alia, by requiring the
completion of five years' continuous regular
service instead of five years' continuous
service. The provisions contained in Rule 9
of the Rules of 1983 stipulated that where a
vacancy was required to be filled in by
promotion, teachers in the L.T. or C.T.
Grade,
who
possessed
the
minimum
qualifications and had at least five years'
continuous service as teachers were to be
considered for promotion. The norm of five
years' continuous service as teacher was
under Rule 9 to be considered on the date of
the occurrence of vacancy. In the Rules of
1995, a conscious departure was made while
formulating Rule 14 which dealt with the
procedure for recruitment by promotion.
Rule 14 stipulated that all teachers working
in the trained graduates/L.T. Grade or
Certificate of Teaching grade, who possess
the minimum qualifications prescribed and
have completed five years' continuous
service on the first day of the year of
recruitment, would be considered for
promotion. Similarly, in Rule 14 of the Rules
of 1998, all teachers working in trained
graduates grade or Certificate of Teaching
grade,
who
possess
the
qualification
prescribed and have completed five years'
continuous regular service on the first day of
the year of recruitment are to be considered
for promotion to the lecturer's grade. Hence,
both in the Rules of 1995 and in the Rules of
1998, the norm of five years' continuous
3 All] Kamla Prasad Chaurasia 7866(S/S) 2005 Vs. State of U.P. & Ors.
1295
service or, as the case may be, five years'
continuous regular service has to be assessed
on the first day of the year of recruitment.
The year of recruitment is, as we have noted,
defined in Section 2 (1) of the Act to be a
period of twelve months commencing from
the first day of July of a calendar year."
11. The year of recruitment year has,
of course, been defined in Section 2 (1) of
the Act of 1982 in the following terms:-
"(l) 'Year of recruitment' means a
period of twelve months commencing
from first day of July of a calendar year".
12. The question is, as to what
would be the "year of recruitment" for the
present purpose. The petitioner-appellant
claims that such year of recruitment ought
to be the first day of July of the year
2002. The argument is not tenable for the
simple reason that the term "year of
recruitment" for the present purpose shall
only be the year commencing on
01.07.2001 and ending on 30.06.2002;
and not that commencing on the first day
of the July of the year 2002 so as to end
on 30.06.2003 because, if the process of
recruitment is initiated in the month of
January, 2002, the corresponding 'year of
recruitment' would be the year of
recruitment in currency and not the year
subsequent. The relevant current year for
the present purpose shall remain the year
that had commenced on the first day of
July, 2001. This aspect of the matter
stands beyond a pale of doubt when seen
in the light of the observations of the
Hon'ble Supreme Court in the case of
Malik Mazhar Sultan & Anr. vs. U P
Public Service Commission & Ors.: 2006
(2) ESC 171, which have been noticed by
the Larger Bench in the Raeesul Hasan
(supra) while observing as under:-
" Similarly, in Malik Mazhar Sultan &
Anr. vs. U P Public Service Commission &
Ors.9, the Supreme Court considered the
expression 'year of recruitment' in Rule 4 (m)
of the Uttar Pradesh Judicial Services Rules,
2001, which defined the expression to mean
a period of twelve months commencing from
the first day of July of the calendar year in
which the process of recruitment is initiated
by the appointing authority. The Supreme
Court held that where the process of
recruitment was initiated by the appointing
authority on 23 November 2002, the year of
recruitment had rightly been determined as 1
July 2002 to 30 June 2003, having regard to
Rule 4 (m)."
13.

In
view
of
the
above
observations and applying the illustration
of Malik Mazhar Sultan (supra), the
inescapable conclusion is that the relevant
date of first July for the recruitment in
question would be of the calendar year of
2001 i.e., 01.07.2001. The petitionerappellant was admittedly not having the
requisite qualification on the said date of
reckoning as he had completed 5 years of
service only on 08.10.2001.
14. Thus, the claim of the petitionerappellant has rightly been rejected and the
learned Single Judge has rightly declined
to interfere. The learned Single Judge has
yet been considerate in providing that if
the vacancy fell in promotional quota and
was yet to be filled in by way of
promotion,
the
candidature
of
the
petitioner-appellant would be considered
by the respondents in accordance with the
Rules. The petitioner-appellant is not
entitled to any other relief.
15. Thus, this appeal, being devoid
of substance, stands dismissed.
--------
1296
 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.11.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE ANANT KUMAR, J.
First Appeal From Order No. 761 of 2013
Janka & Ors.
 ...Appellants
Versus
Akhilesh Kumar Gupta & Ors. Respondents
Counsel for the Appellants:
Santosh Kumar Kanaujia
Counsel for the Respondents:
Vaibhav Raj
Motor Vehicle Act-1988-Section-173-claim
petition-dismissal
due
to
want
of
evidence-all the claimants either minor or
blind-fully
dependent
upon
deceasedTribunal acted very haste manner-as
without appointing guardian ad litem after
having affidavit of next friend next very
date closed evidence-held-if the next
friend not prosecuting the case-Tribunal
ought to have appoint guardian ad litem -
but dismissed of claim petition-illegal-seta-side-consequential direction given.
Held: Para-10
It appears that in its haste for disposal,
the Tribunal altogether failed to consider
that the matter related to the claimants
who were shown to be the persons under
disabilities including minors; and if at all
their next friend was found not doing his
duties for prosecution of the matter, the
next friend could have been removed
and guardian ad-litem could have been
appointed for the claimants on the
principles referable to Order XXXII of the
Code of Civil Procedure. The manner of
disposal of the present claim application
by the Tribunal without regard to all the
facts
and
circumstances
has
only
resulted in failure of justice and this
manner of disposal cannot be endorsed.
(Delivered by Hon'ble Dinesh Maheshwari, J.)
1.
This appeal by the claimantsappellants is directed against the judgment
and Award dated 24.05.2013 as made by the
Motor Accident Claims Tribunal (Additional
District Judge, Court No.3), LakhimpurKheri ['the Tribunal'] in Motor Accident
Claim Petition No.124 of 2012 whereby the
Tribunal has proceeded to determine the
relevant issue No.1 on the factum of accident
against the claimants-appellants for want of
evidence; and on that basis, has dismissed
the claim application.
2. The relevant background aspects of
the matter are that the appellant No.1, said to
be a blind lady in 66 years of age and the
appellant Nos.2 and 3, said to be the minors
in about 12 and 9 years of age, preferred the
claim application aforesaid through their next
friend/guardian Shri Sanjay Kumar, who is
son of the appellant No.1 and uncle of the
appellant Nos.2 and 3. It was submitted that
the victim Arvind Kumar died due to the
injuries sustained in the vehicular accident
caused by the vehicle belonging to the
respondent No.1, which was being driven by
the respondent No. 2 and was insured with
the respondent No.3. While stating that the
deceased was a skilled mason and was also
engaged in agriculture, it was submitted that
the claimant-appellant No.1 was the blind
mother of the victim, whereas the claimant
nos.2 and 3 were his minor sons, whose
mother had already expired; and all the
claimants were dependent solely on the
victim. The other factual aspects relating to
the accident and the basis of claim need not
be dilated for the short point involved in this
appeal.
3. The relevant aspects of the matter are
that the claim application was filed on
03.04.2012 by Sanjay Kumar as the next