# Km. Kusum Rani and others v. District Inspector of Schools-II, Allahabad and others

- **Citation:** (2004) 1 ILRA 30
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-26
- **Case number:** Civil Misc. Writ Petition No. 27709 of 1999
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-kusum-rani-and-others-v-district-inspector-of-schools-ii-allahabad-and-others-40262
- **Pages:** 7

## Headnote

U.P. Intermediate Education Act 1921
Section 16 E- Termination of service
Assistant Teachers in Primary section
attached to Intermediate- appointed
without following the procedure of laweven the advertisement not disclosed the
vacancy
under
servati
on
quotaopportunity of hearing not requiredjoining
without
valid
appointmentapproval
by
the
authority-heldredundant.

Held: Para 16

The petitioners appointments per se was
illegal, therefore, principle of natural
justice cannot be said to be given and
the petitioners cannot unnecessarily be
afforded opportunity of hearing before
passing the said impugned orders. The
said appointments in question are in
contravention to the norms and are not
made by the approval of D.I.O.S. or the
irregularities for defiance of reservation
policy goes to the very root for instance
no vacancies/posts were available and if
vacancies/posts were existing then the
authorities overlooked to observe norms
of
reservation
policy,
in
these
circumstances, the selections lack legal
foundation and no legal rights accrued to
the petitioners in view of the (State of
Punjab Vs. Jagdip Singh) AIR 1964 SC
521 Para-8.
Case laws discussed:
1998 JT Vol 6 page 464
1991 SC 309
1999 UPLBEC (3) 1691
AIR 1978 SC 851
1979 (2) SCR 953
AIR 1964 SC 521

## Text

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arrest and detention of the applicant in
civil prison has not been passed. It is only
at that stage after the examination under
Rule 41 or evidence under Rule 40 that
reasons are required to be recorded at the
stage of ordering execution by detention.
The revision has no merit. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.9.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 27709 of 1999

Km. Kusum Rani and others ...Petitioners
Versus
District
Inspector
of
Schools-II,
Allahabad and others
 ...Respondents

Counsel for the Petitioners:
Sri Prakash Padia

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act 1921
Section 16 E- Termination of service
Assistant Teachers in Primary section
attached to Intermediate- appointed
without following the procedure of laweven the advertisement not disclosed the
vacancy
under
servati
on
quotaopportunity of hearing not requiredjoining
without
valid
appointmentapproval
by
the
authority-heldredundant.

Held: Para 16

The petitioners appointments per se was
illegal, therefore, principle of natural
justice cannot be said to be given and
the petitioners cannot unnecessarily be
afforded opportunity of hearing before
passing the said impugned orders. The
said appointments in question are in
contravention to the norms and are not
made by the approval of D.I.O.S. or the
irregularities for defiance of reservation
policy goes to the very root for instance
no vacancies/posts were available and if
vacancies/posts were existing then the
authorities overlooked to observe norms
of
reservation
policy,
in
these
circumstances, the selections lack legal
foundation and no legal rights accrued to
the petitioners in view of the (State of
Punjab Vs. Jagdip Singh) AIR 1964 SC
521 Para-8.
Case laws discussed:
1998 JT Vol 6 page 464
1991 SC 309
1999 UPLBEC (3) 1691
AIR 1978 SC 851
1979 (2) SCR 953
AIR 1964 SC 521

(Delivered by Hon'ble R.B. Misra, J.)

1. All these writ petitions are taken
up together.

By way of writ petitions no. 27709 of
1999 and 30563 of 1999 order dated
31.12.98 passed by District Inspector of
Schools, Allahabad and subsequent order
dated 15.5.99 have been challenged.
Further prayer has been made seeking
writ
of
mandamus
restraining
the
respondents from interfering in the
working of the petitioners as Assistant
Teachers and for payment of salary month
by month along with arrears from the date
of their initial appointment. Still further
prayer has been made to grant approval
by the District Inspector of Schools in
favour of the petitioners as a primary
teacher in the institution. Km. Preeti
Singh by way of writ petition no. 14570
of 1999 has prayed to quash the selection
which took place on 17th December, 1998
in
pursuance
of
the
advertisement
published in local news papers 'Rashtriya
Sahara' on 16th October, 1998 and in
'Amar Ujala' on 17th of October, 1998 to
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the post of Assistant Teachers in the
primary section attached to Arya Kanya
Inter College, Muthiganj, Allahabad (In
short called as 'College' hereinafter) and
further prayer has been made to restrain
the petitioners in the above two writ
petitions from functioning as Assistant
Teachers in the primary section of the
college and further direction has been
made for making fresh appointment by
observing the provisions of U.P. Public
Services (Reservation for Scheduled
Castes, Scheduled Tribes and other
Backward Classes) Act, 1994 that is Act
No. 4 of 1994 (In short called as
'Reservation Act, 1994' hereinafter) which
came into force on 11.12.93.

2.

The
facts
necessary
for
adjudication of the writ petitions are that
Arya Kanya Inter College, Muthiganj,
Allahabad is under grants-in-aid list of the
State Government and the teachers of the
said college are being paid salary through
the State funds under the U.P. High
Schools
and
Intermediate
Colleges
(payment of salaries of teachers and other
employees) Act, 1971. The said college
runs classes from Ist to XII where primary
section is also run within one campus
under the same management and one
Principal is heading the college including
the primary section from Ist to V and
from VI to XII and the terms and
conditions in respect of payment are
governed by U.P. Intermediate Education
Act, 1921 and the regulations framed
thereunder.

3. According to the petitioners for
appointment of Assistant Teacher in the
Primary Section in the said college a letter
was written by Management of the said
College on 12.6.98 to the Director of
Schools seeking permission whereby the
permission dated 29.9.98 was granted by
the
District
Inspector
of
Schools
(D.I.O.S.) to the management of the said
college.
In
pursuance
thereto
the
vacancies were advertised in widely
circulated news papers namely 'Rashtriya
Sahara' on 16.10.98 and in 'Amar Ujala'
on 17.10.98. In reference thereto 108
persons applied, out of which 102 persons
were called for interview and out of
which
75
persons
appeared
and
interviewed and the selection took place
on
17thDecember,
1998
where
the
petitioners of the two writ petitions no.
27709/99 and 30563/99 were found
eligible and were recommended as LT.C.
Teacher B.T.C. Grade. In reference to the
recommendation
of
the
Selection
Committee, the Management Committee
of the said College resolved and issued
appointment letters from 28.12.98 on
wards in favour of the writ petitioners
where it was specifically mentioned that
the appointment in question was only to
be effective from the date of approval by
the
District
Inspector
of
Schools.
However in pursuance to the appointment
letters issued in favour of the petitioners
when writ petitioners met the Principal of
the college, they were informed by the
Principal and the Manager that some
quarries have been made by the District
Inspector of Schools by letter dated
31.12.98 in respect of the following
points:

(I)
To indicate about the creation of
posts of alleged teachers in Primary
section of the College.
(II)
Number of sections in primary
section and the permission for their
creation.
(III) List and details of the joining dates
and the date of retirement of lady
teachers working in primary section
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from 1975 (Service Books as
evidence are to be enclosed)
(IV) To disclose the names of Assistant
lady teachers receiving salary after
the
grant
no.
71
was
made
applicable to the college to give
detail about those lady teachers
working in primary section of the
said
college,
their
date
of
appointment who were given C.T.
grade scale by the Regional Girls
Inspector of School IV Division by
her order dated 16th August, 1994.

4. The District Inspector of Schools
by letter dated 31.12.98 has also indicated
to the Manager of the said College to
furnish information on the above points
and had restrained the appointment of any
Assistant Teachers in the primary section
of the said college.

5. It appears that in response to the
above queries the Manager of the college
wrote letter dated12.3.99 to the D.I.O.S.,
however without further waiting the
decision of the D.I.O.S., the petitioners
were issued appointment letters on 20th
March, 1999 and on 22nd March, 1999 and
the relevant papers were sent by the
Management of the College to the
D.I.O.S.
to
grant
permission
for
appointment and for financial approval.
Thereafter by letter dated 5.4.99 and
15.4.99 certain more queries were made
by D.I.O.S. from the Management of the
college
in
respect
of
the
said
appointments in question and on 15th
May, 1999 the D.I.O.S by the impugned
order has indicated that the permission
earlier granted for making payment of
Assistant Teacher in primary section of
the said college is recalled in view of the
analysis made on the material supplied by
the Management and keeping in view that
when selection and appointment was
restrained earlier and in the light of nonobservance of the reservation policy in the
said appointments. The orders dated
31.12.98 and 15.5.99 passed by the
D.I.O.S. are the impugned orders in the
two writ petitions.

6. It appears that when the
petitioners filed the writ petitions this
court on 12.7.99 had been pleased to stay
the operation of the order dated 15.5.99
and
subsequently
by
order
dated
8.12.2000 have extended the operation of
the order dated 12.7.99.

7. Counter affidavit has been filed.
The specific stand taken by the District
Inspector of Schools is that the earlier
permission granted on 29.9.98 for making
appointment on the post of Assistant
Teacher in the primary section of the said
college was with an indication and
observance that the Management is
authorised to make appointment of
teachers in the primary section and the
Management was permitted to make
appointment obviously in observance of
the
reservation
policy.
The
basic
advertisement was defective as it did not
observe the reservation policy and the
information before the said appointments
were under scrutiny and keeping in view
of the deficiencies in the information,
further information on 31.12.1998 were
demanded by the D.I.O.S. In those
circumstances, the impugned order dated
15.5.99 was passed. It has further been
pointed out on behalf of the respondents
that 14 posts in the college were filled up
and there was no vacancy for making
appointments to the post of assistant
teachers and eight vacancies were shown
to have been fallen vacant whereby by
virtue of retirement of 8 teachers from the
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said college from 30th June, 1992 to 30th
June, 1998 and by virtue of non-creation
and sanction of the post by the appointing
authority, no college availing the benefit
of grants-in-aid of the State Government
could make appointment to the post of
assistant teacher and if appointment were
made in absence of the vacancies and
posts the same was illegal. According to
the respondents the two advertisements
neither indicate the number of vacancies
to be filled up nor has mentioned anything
about the observance of reservation policy
i.e. 'Act 1994' which is applicable in the
educational institution owned by the State
Government
or
those
institutions
receiving grants-in-aid and Section 2 ( c )
(IV) applies to all the educational
institutions owned and controlled by the
State Government or which received
grants-in-aid by the State Government
including the Universities and Section 4
of
the
'Act
1994'
indicates
the
responsibilities,
accountabilities
and
powers for complying the provisions of
'Act 1994' by entrusting the responsibility
over the appointing authority or any of the
officer of the State or the Institution
concerned to be responsible for ensuring
the compliance of provisions of that and
Section 5 deals with the penalty for
defiance of the provisions of the said 'Act
1994' and by virtue of section 6, the
power has been given to call for records
and take such action as it may be
necessary. As contended on behalf of the
D.I.O.S. all the 14 posts in the said
college were filled up and the said
advertisements were illegal for want of
vacancies and sanction of posts and the
Management being fully aware of these
facts
still
proceeded
with
the
advertisements and despite the restrained
order passed by the D.I.O.S. the said
appointments were made as per the
conditions indicated in the order dated
28.12.98 and onwards the said alleged
appointments were not effective without
the permission and approval of the
D.I.O.S. as such the said appointments in
question
are
not
valid,
in
these
circumstances, the question of giving
actual appointment did not arise.

8. It has been submitted on behalf of
the petitioners that the petitioners were
duly appointed by the Management after
adopting full procedure and in terms of
the appointments letters the petitioners
have joined duties and were working, as
such without notice or opportunity of
hearing or in derogation to the principles
of natural justice, their appointments
cannot be cancelled. In support of the
stand the reliance has been placed on
behalf of the petitioners on following
cases:

(i)
1998 J.T.(Vol. 6) page 464 (Para 9
and 13) Basudeo Tiwari Vs. Sido
Kanhu University.
(ii)
1991 S.C. 309, Shrawan Kumar Jha
Vs. Ram Sewak.
(iii) 1999 U.P.L.B.E.C. (Vol. I) 537
Pancham Ram and others Vs. Chief
Engineer, U.P. Jal Nigam & others.
(iv) 1990 UPLBEC (3) 1691 (Para 4)
Dinesh Vs. D.I.O.S., Mau

9. When these cases are analysed, I
find that in these cases the appointments
were already given against the existing
vacancies and posts and at subsequent
stage specifically before cancellation of
the appointments of the writ petitioners
the question of consideration for giving
opportunity of hearing before cancellation
of
such
appointments
arose
for
consideration. Here the vacancy was not
available and the Management was
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supposed to observe the reservation
policy and despite the management been
restrained by the D.I.O.S. even if
appointments were made then joining and
working by petitioner has no value in the
eyes of law. When the conditions for the
appointments itself indicate that it could
only be effective after the approval of the
D.I.O.S., therefore, in the present facts
and circumstances of the case, the
question of appointments and joining has
no relevance and effect. From this point
of view the cases referred is not
applicable in the present cases. According
to the petitioners new grounds cannot be
taken by the respondents in the counter
affidavit which are not stated in the
appointment orders in view of the A.I.R.
1978 S.C. 851 (Para 8) Mohinder Singh
Gill
Vs.
The
Chief
Election
Commissioner. The contention of the
petitioners is also incorrect as the legal
ground could be raised even at the hearing
stage, more so here the basic issue of nonobservance of the reservation policy has
been ignored and the permission of the
D.I.O.S. to proceed for the selection does
not mean that the management was to
make recruitment's even in absence of
vacancies and posts, to follow the
procedure at his sweet and free will
without observing the provisions of
reservation and the law applicable for the
recruitment.

10. It has been contended on behalf
of the petitioners that there is no
requirement under U.P. Intermediate
Education Act, 1921 for taking approval
for appointment of teachers in Primary
Section in an Intermediate College unless
there
is
disagreement
between
the
selection committee and the Committee of
Management under Section 16 (E) (8) but
in
the
present
case
committee
of
management
duly
accepted
the
recommendation
of
the
Selection
Committee. Thus condition contained in
various appointment orders, (Annexures 5
to 8 to the writ petition) that the approval
of the D.I.O.S. should be taken is totally
irrelevant and redundant and there does
not exist any provisions in law seeking his
approval. In this respect the petitioners
have placed reliance on the judgement in
1984
UPLBEC
page
46
Amresh
Chandra
Dwivedi
Vs.
D.I.O.S.,
Varanasi.

11. It has further been contended on
behalf of the petitioners that in the present
case, appointments were cancelled by the
D.I.O.S. who has no jurisdiction and that
too
without
giving
any
notice
or
opportunity. Thus the impugned order is
liable to be set aside being violative of
principles of natural justice and being
nullity i.e. totally without jurisdiction.

12. It has further been contended on
behalf of the petitioners that appointments
made by the committee of management
can only be cancelled by the Director as
provided under Section 16-E (10) of the
U.P. Intermediate Education Act, 1921.
He can cancel the appointments only after
giving due notice and opportunity to the
petitioners.

13. Section 16-E (8) of the U.P.
Intermediate
Education
Act,
1921
provides as below:

"Section 16-E (8)- Applicability and
Scope of - Sub-section (8) of Section 16-E
provides for referring the matter to the
District Inspector of Schools in a case
where the Committee of Management
does not agree with the recommendations
of the Selection Committee. Thus, it is
clear
that
if
the
Committee
of
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35
Management agrees with the Selection of
the Selection Committee it need not refer
the matter to the District Inspector of
Schools. There is no provision either
under the Act or under the regulations
requiring the Committee of Management
to refer the question of appointment to the
District Inspector of Schools for obtaining
his approval, where the Committee
Management
agrees
with
the
recommendations
of
the
Selection
Committee."

14. Here in respect of Section 16-E
(8) there was no question of disagreeing
by the Committee of Management with
the
recommendation
of
selection
committee and as both have erred to
proceed in the said selection by making
appointment to the posts of assistant
teachers in the said college in absence of
vacancies and by deliberately disobeying
the provisions of the reservation policy
and
the
issue
of
any
dispute
or
cancellation
of
the
alleged
said
appointments to be dealt by the Director
of Education could only arise in the case
of appointments having been made
regarding teachers in an institution as
provided under Section 16-E (10) of the
'Act 1921. In the present cases the said
teachers without the permission of the
D.I.O.S. have been issued appointment
orders, in absence of vacancies, and posts
in derogation to the reservation policy,
thus the appointments could not be said to
be legally made, as such Section 16-E
(10) is not attracted and the decision of
this court D.B. delivered in Amresh
Chandra Dwivedi (Supra) shall be not
applicable as at the relevant time U.P. Act
No. 4 of 1994 was not mandatory and was
not applicable and the reservation policy
was not to be observed such a great
extent.

15. According to the petitioner, Km.
Preeti Singh she holds only Diploma in C.
P. Ed. which is not like the L.T. or B.Ed
and she was not eligible, however this
issue of the claim of Km. Preeti Singh
only could be considered by the Director
of Education in reference to Section 16-E
(10) of the Act of 1921. According to the
respondents the petitioner Km. Preeti
Singh appeared before the Selection
Committee which did not find her
eligible, suitable and qualified to the post
as she was not selected, now after
rejection she cannot challenge the process
of selection in view of (1979) 2 SCR 953
(Swaran Lata Vs. Union of India).

16. In the facts and circumstances of
the present cases whether Km. Preeti
Singh could be considered even if the
Selection Committee did not observe the
reservation policy. The answer is no but if
in the said selection the Committee of
Management was to support the selection
and was to be held responsible for non
observance of provision of Act no. 4 of
1994 and selections are declared non est
and then, petitioners appointments and
their joining to the said college are of no
relevance. The petitioners appointments
per se was illegal, therefore, principle of
natural justice cannot be said to be given
and the petitioners cannot unnecessarily
be afforded opportunity of hearing before
passing the said impugned orders. The
said appointments in question are in
contravention to the norms and are not
made by the approval of D.I.O.S. or the
irregularities for defiance of reservation
policy goes to the very root for instance
no vacancies/posts were available and if
vacancies/posts were existing then the
authorities overlooked to observe norms
of
reservation
policy,
in
these
circumstances, the selections lack legal
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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foundation and no legal rights accrued to
the petitioners in view of the (State of
Punjab Vs. Jagdip Singh) AIR 1964 SC
521 para-8.

17. I have heard learned counsel for
the parties. I find that in absence of the
vacancies and posts, the petitioners
appointment were made despite the
restrictions imposed by the D.I.O.S. and
the appointments and said selection were
made without observing the provisions of
the reservation policy as indicated above
and the issuance of the appointment
orders and allowing the petitioners to join
the post without any valid appointments
and approval of competent authorities are
redundant, as such the petitioners are not
entitled to any relief, therefore, I do not
find any impropriety and illegality in the
said impugned order dated 31.12.98 and
15.5.94 of the D.I.O.S., therefore, these
writ petitions are dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.9.2003

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

Civil Misc. Writ Petition No. 20611 of 1988

Sri Salim Ahmad Khan
...Petitioner
Versus
XIIth A.D.J., Agra
 ...Respondents

Counsel for the Petitioner:
Sri S.O.P. Agarwal

Counsel for the Respondents:
S.C.

U.P.
Urban
Building
(Regulation
of
letting, rent and eviction) Act 1972,
Section 21-Enamy Property Act 1968,
Section 9-whether house in dispute
vested in Custodian Emery Property Act-
Tehsildar had no authority to determine
this question.

Held- Para 3

There is no evidence that the property
was ever declared to be enemy property
or that it ever vested in custodian enemy
property. If one party asserts that the
property is enemy property and the
other party disputes the said fact then
naturally it must be decided by some
authority under Enemy Property Act
1968
that
the
property
vested
in
Custodian Enemy Property. The only
thing
brought
on
record
by
tenant/petitioner was a notice and a
report of the Tehsildar dated 27.6.1983.
In that notice Tehsildar stated that
Rahim Baksha was a Pakistani National.
Neither under Enemy Property Act nor
under
any
other
Provision
of
law
Tehsildar is authorized to decide the
nationality of a person and the fact that
a particular property belongs to that
person. In the notice Tehsildar did not
mention that any authority under Enemy
Property Act had declared the said facts.
Case laws discussed:
AIR 1982 Cal. 542
AIR 1989 Cal. 139

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

1. This writ petition has been filed
by the tenant against whom release
application (P.A. Case No. 41 of 1984 on
the
file
of
Prescribed
Authority/
Additional Civil Judge-I, Agra) filed by
landlord/ respondent No. 3 under section
21 of U.P. Act No. 13 of 1972 is pending.
Before filing written statement/ reply to
the release application tenant/ petitioner
filed application numbered as 24-Ga. In
the said application tenant stated that
house in dispute initially belonged to Sri
Rahim Baksha whose entire family
migrated to Pakistan in 1948-49 and
obtained the citizenship of Pakistan. Only