# Km. Suman Srivastava v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-17
- **Case number:** Service Single No. 5318 of 1987
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-suman-srivastava-v-state-of-u-p-and-ors-42816
- **Pages:** 12

## Headnote

Board Act 1982-Appointment of Asst.
Teacher
in
C.T.
grade-advertised
05.12.1986-appointment on short term
vacancy-management issued appointment
letter on 31.12.1986-without approval of
DIOS-on 02.02.1987 manager sent the
selection list for approval-28.02.1987 RIGS
accorded approval-on 25.08.1987
appointment letter issued to Smt. Rastogiwho joined on 28.08.1987-subsequently on
misconception
by
manager-approval
granted earlier canceled-which resulted
termination of her services-held-without
hearing to Mrs. Rastogi termination can not
be passed-refusal of joining prior to
approval
of
selection-meaninglessappointment of last candidate of meritwholly illegal-petition by Rastogi allowedand the petition of Km. Suman Srivastava
dismissed-follow up direction given.

Held: Para-26
It is evident from the facts that on
25.08.1987 the case of Km. Suman
Srivastava has been rejected by the
RIGS and on the same date appointment
letter is issued to Km. Abha Rastogi and
she joined on the following date. The
approval was granted by R.I.G.S. on
28.02.1987. The Manager of the College
in connivance with Suman Srivastava
tried to mislead the RIGS by creating an
impression that Km. Abha Rastogi has
refused
to
join
vide
letter
dated
12.02.1987. The RIGS in the impugned
order dated 25.08.1987 takes notice of
the fact that Km. Abha Rastogi vide
letter dated 25.04.1987 had complained
to the RIGS that the Management is not
cooperating
and
not
issuing
the
appointment letter and taking notice of
the fact that the Management had
allowed
Km.
Abha
Rastogi
last
opportunity to join by 10.02.1987 and
vide
letter
dated
12.02.1987
Abha
Rastogi
refused
the
offer
of
appointment, the impugned order has
been passed without issuing notice to
1 All] Km. Suman Srivastava Vs. State of U.P.and Ors.
353
Smt. Abha Rastogi. The approval is
granted in February, 1987 and the
Management issues appointment letter
in August 1987 and in the intervening six
months the Management in collusion
with Km. Suman Srivastava tried to nonsuit Smt. Abha Rastogi on fact which was
otherwise false and fabricated. The
R.I.G.S. Should have issued notice to Km.
Abha Rastogi before passing the order
dated 25.08.1987 for the reason that
Km.
Abha
Rastogi
had
already
complained to the R.I.G.S. that the
Manager was not issuing appointment
letter. The withdrawal of approval and
consequential
order
of
termination
without
opportunity
was
bad
and
unsustainable and is liable to be set
aside on that ground alone.

Case Law discussed:
1998 U.P.L.B.E.C 640; 1996(1) U.P.L.B.E.C
271; 1991 ACJ 125; 1983 U.P.L.B.E.C 768;
(2001) 3 SCC 328; (2007) 1 UPLBEC 120;
(1994) All. C.J. 781; (1998) 3 ESC 2006;
[(2013)4 UPLBEC 2769]; (2001) 1 UPLBEC
481; (1975) 2 SCC 702-11; AIR 2005 AP 45,
49; (1998)8 SCC 194; [1982 UPLBEC 213].

## Text

352 INDIAN LAW REPORTS ALLAHABAD SERIES
his case is provided to the applicant and a
reasoned order is passed by an officer as
designated by the licensee."

3. Having perused the same we are
of the opinion that since in the instant
case there is already a clear statutory
provision to that effect as such a fresh
electricity connection can only be granted
if No Dues Certificate is given by the
person, who is seeking to have fresh
electricity connection. Consequently, the
ratio of the aforesaid decision cannot
come to the aid of the petitioner in view
of the aforesaid statutory provision in the
Electricity Supply Code, 2005 that has
been promulgated much after 2004.
Consequently, if the petitioner applies for
a fresh electricity connection complying
with the aforesaid condition, it shall be
open to the respondents to consider the
same in accordance with law.

4. With the aforesaid direction the
writ petition is disposed of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Service Single No. 5318 of 1987
along with Service Single No. 1172 of
1996 and Service Single No. 6221 of 1987

Km. Suman Srivastava..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
Sri A.K. Shukla, Sri Akhilesh Kalra, Sri I.H.
Farooqui, In person, Shyam Mohan.

Counsel for the Respondents:
Sri K.K. Tewari, Sri Arshad Rizvi, C.S.C.,
K.D. Nag, Sri Ved Prakash.

U.P. Secondary Education Service Selection
Board Act 1982-Appointment of Asst.
Teacher
in
C.T.
grade-advertised
05.12.1986-appointment on short term
vacancy-management issued appointment
letter on 31.12.1986-without approval of
DIOS-on 02.02.1987 manager sent the
selection list for approval-28.02.1987 RIGS
accorded approval-on 25.08.1987
appointment letter issued to Smt. Rastogiwho joined on 28.08.1987-subsequently on
misconception
by
manager-approval
granted earlier canceled-which resulted
termination of her services-held-without
hearing to Mrs. Rastogi termination can not
be passed-refusal of joining prior to
approval
of
selection-meaninglessappointment of last candidate of meritwholly illegal-petition by Rastogi allowedand the petition of Km. Suman Srivastava
dismissed-follow up direction given.

Held: Para-26
It is evident from the facts that on
25.08.1987 the case of Km. Suman
Srivastava has been rejected by the
RIGS and on the same date appointment
letter is issued to Km. Abha Rastogi and
she joined on the following date. The
approval was granted by R.I.G.S. on
28.02.1987. The Manager of the College
in connivance with Suman Srivastava
tried to mislead the RIGS by creating an
impression that Km. Abha Rastogi has
refused
to
join
vide
letter
dated
12.02.1987. The RIGS in the impugned
order dated 25.08.1987 takes notice of
the fact that Km. Abha Rastogi vide
letter dated 25.04.1987 had complained
to the RIGS that the Management is not
cooperating
and
not
issuing
the
appointment letter and taking notice of
the fact that the Management had
allowed
Km.
Abha
Rastogi
last
opportunity to join by 10.02.1987 and
vide
letter
dated
12.02.1987
Abha
Rastogi
refused
the
offer
of
appointment, the impugned order has
been passed without issuing notice to
1 All] Km. Suman Srivastava Vs. State of U.P.and Ors.
353
Smt. Abha Rastogi. The approval is
granted in February, 1987 and the
Management issues appointment letter
in August 1987 and in the intervening six
months the Management in collusion
with Km. Suman Srivastava tried to nonsuit Smt. Abha Rastogi on fact which was
otherwise false and fabricated. The
R.I.G.S. Should have issued notice to Km.
Abha Rastogi before passing the order
dated 25.08.1987 for the reason that
Km.
Abha
Rastogi
had
already
complained to the R.I.G.S. that the
Manager was not issuing appointment
letter. The withdrawal of approval and
consequential
order
of
termination
without
opportunity
was
bad
and
unsustainable and is liable to be set
aside on that ground alone.

Case Law discussed:
1998 U.P.L.B.E.C 640; 1996(1) U.P.L.B.E.C
271; 1991 ACJ 125; 1983 U.P.L.B.E.C 768;
(2001) 3 SCC 328; (2007) 1 UPLBEC 120;
(1994) All. C.J. 781; (1998) 3 ESC 2006;
[(2013)4 UPLBEC 2769]; (2001) 1 UPLBEC
481; (1975) 2 SCC 702-11; AIR 2005 AP 45,
49; (1998)8 SCC 194; [1982 UPLBEC 213].

(Delivered by Hon'ble Suneet Kumar, J.)

1. Writ Petition No. 5318 of 1987, Km.
Suman Srivastava Versus State of U.P. and
others and connected petitions Writ Petition
No. 1172 of 1996, Smt. Abha Rastogi
Versus State of U.P. and others and Writ
Petition No. 6221 of 1987, Smt. Abha
Rastogi Versus R.I.G.S. Lucknow and
others, the facts are common pertaining a
single selection, and as such, these writ
petitions are being decided together, on the
consent of the parties, at the admission stage
as per rules of the Court.

2. Heard the petitioner, Km. Suman
Srivastava appearing in person in Writ
Petition No. 5318 of 1987, Sri K.D. Nag,
learned counsel for the petitioner in the
other connected petitions and Sri Somesh
Tripathi for Committee of Management as
well as learned Standing Counsel for the
State-respondents.

3. The facts of the case is that
Hanuman Pd. Rastogi Girls' Inter College,
Subhash Marg, Lucknow is an institution
recognized under the U.P. Intermediate
Education Act, 1921 and Regulation
framed thereunder and the provisions of
U.P.
Secondary
Education
Services
Selection Board Act 1982 is applicable.
The institution is grant-in-aid. One post of
Assistant Teacher Science in C.T. Grade
was advertised on 05.12.1986. The post
was for short term vacancy to be filled up
in accordance to Uttar Pradesh Secondary
Education
Services
Commission
(Removal of Difficulties) (Second) Order,
1981. Several candidates applied for the
said post and the Selection Committee
recommended the name of Abha Rastogi
and
other
candidates
were
Basanti
Rastogi, Kumari Swatantra Bala Rastogi
and Kumari Suman Srivastava in the
order of merit.

4. The Manager sent appointment
letter on 31.12.1986 to Smt. Abha Rastogi
who was placed at Serial No. 1 of the
select list without sending papers of
selection for prior approval of the RIGS
as required under Order 1981. It is alleged
by Suman Srivastava that Smt. Abha
Rastogi refused the offer of appointment
vide letter dated 12.02.1987, this fact is
denied by Smt. Abha Rastogi. It is for the
first time on 02.02.1987 the manager sent
the name of the selected candidate namely
Smt. Abha Rastogi along with the records
of selection for approval under the Uttar
Pradesh Secondary Education Services
Commission (Removal of Difficulties)
(Second) Order, 1981 and the Regional
Inspector
of
Girls
School
(RIGS)
354 INDIAN LAW REPORTS ALLAHABAD SERIES
accorded approval in respect of the
selection of Abha Rastogi vide letter
dated 28.02.1987 which was received by
the
institution
on
03.03.1987.
The
Management of the institution issued
appointment letter dated 25.08.1987 in
favour of Smt. Abha Rastogi and she
accordingly joined on 26.08.1987. In the
intervening period i.e. on the date on
which approval of the RIGS was received
i.e. 03.03.1987, the Manager sent a letter
seeking approval in respect of Suman
Srivastava without informing that the
incumbent had joined attempting to
dislodge rightful claim of Smt. Abha
Rastogi. On account of misrepresentation
and misconception by the Manager the
approval granted in favour of Smt. Abha
Rastogi was cancelled by RGIS vide order
dated 25.08.1987 and in pursuance
thereof the management vide order dated
31.08.1987 terminated the services of
Abha Rastogi. Both the letter dated
25.08.1987
issued
by
the
R.I.G.S.
Cancelling
the
approval
and
the
consequential termination order dated
31.08.1987 are impugned in the Writ
Petition No. 6221 of 1987 by Abha
Rastogi. Suman Srivastava approached
this court seeking writ of mandamus to
treat her appointed as Assistant Teacher
under the deeming clause of 1981 Order.
There was interim orders in respect of the
respective parties, but only Smt. Abha
Rastogi was allowed to continue and was
paid her salary whereas Suman Srivastava
was not allowed to work for want of
approval and appointment letter.

5. It is submitted by Km. Suman
Srivastava that once Smt. Abha Rastogi
vide letter dated 12.02.1987 refused the
appointment, she does not have any legal
right to claim appointment on the said
post and since the other two candidates
have refused appointment, therefore, Km.
Suman Srivastava being the fourth
candidate
became
eligible
for
the
appointment. RIGS never approved the
appointment of Suman Srivastava but it is
contended by her that since seven days
had lapsed from the date of receipt of
particulars pertaining to her selection it
will be deemed that approval was granted
by RIGS. The proposal sent by the
Manager for approval of the name of
Suman Srivastava was wrongly rejected
by RIGS by order dated 25.08.1987.

6. Km. Suman Srivastava has relied
upon following judgments in support of
her contentions:-

1998 U.P.L.B.E.C. 640, Chhatrapal
vs.
D.I.O.S.
&
others,
1996
(1)
U.P.L.B.E.C 271, Nagar Palika Inter
College v. Havildar Singh, 1991 ACJ 125,
Sukhanandan v. D.I.O.S. And 1983
U.P.L.B.E.C 768, Rajendra Prasad v.
Kayastha Pathsala.

7. There was interim order in favour
of Suman Srivastava, however, it was
never given effect to finally interim order
was vacated on 09.03.1990 after exchange
of
affidavits.
Interim
order
dated
09.03.1990 is reproduced herein below:

"Application for Stay

Lucknow DATED 9.3.1990.

Hon'ble D.K. Trivedi, J.

Writ Petition No. 5318 of 1987, was
filed by Kumari Suman Srivastava,
whereas writ petition No. 6221 of 1987
was filed by Km. Abha Rastogi.

There is no dispute that there is one
vacancy of Assistant Teacher in C.T.
Grade in the College. Admittedly, for this
1 All] Km. Suman Srivastava Vs. State of U.P.and Ors.
355
ad hoc appointment a selection took place
and in the said selection Km. Abha
Rastogi, was placed at serial no. 1. It is
further alleged that name of Km. Suman
Srivastava finds place at serial No. 4. The
R.I.G.S. by letter dated 28.02.1987,
granted an approval in favour of Km.
Abha Rastogi. The said letter was
received in the office of College on
3.3.87. The above mentioned facts are not
disputed by the counsel for the parties.
Counsel for Km. Suman Srivastava states,
on the basis of some letter of the
Management that Km. Abha Rastogi has
refused to join the post by letter dated
12.2.87. R.I.G.S. canceled the order of
approval granted in favour of Km. Abha
Rastogi. Km. Abha Rastogi, has denied
this fact and counsel for the Abha
Rastogi, pointed out that admittedly the
approval was granted by R.I.G.S. On
28.2.87. Therefore, there is no question
for refusal of joining the post on 12.2.87
as alleged by the other side. There is no
letter of 12.2.87 on record. It is also not
disputed between the parties that if there
is no refusal of Km. Abha Rastogi, then,
Km. Suman Srivastava, has no right to
continue in service as there is only one
post on which Km. Abha Rastogi has
better claim. She is admittedly selected by
the Selection Committee and placed at
serial number 1.

From the perusal of the file it appears
that whole controversy has been created
by the management of the college. As
there is no letter of refusal of Km. Abha
Rastogi on record and further in view of
the fact that Km. Abha Rastogi as well as
R.I.G.S.
including
the
Manager
of
College, are now denying this fact of
refusal, therefore, in my opinion, there is
no justification in continuance of the stay
order, passed in favour of Suman
Srivastava of Writ petition No. 5318 of
1987. Stay order dated 21.8.87 is
therefore, vacated.
sd/D.K. Trivedi,
9.3.1990."

8. It is alleged on behalf of
Committee of Management that Km.
Suman Srivastava was working in the
institution prior to the issuance of the
advertisement. She was engaged on
honorarium of Rs. 200 and further she
was an applicant to the post advertised for
temporary vacancy but in the order of
merit she finds place at Serial No. 4 and at
no point of time she was issued
appointment letter nor her name was ever
approved by RIGS nor she has been paid
salary from the State Exchequer. On the
other hand, Committee of Management
contends that Smt. Abha Rastogi was
issued
appointment
letter
and
in
pursuance
thereof
she
joined.
The
Manager admits that there was no refusal
on the part of Smt. Abha Rastogi as
alleged by the Km. Suman Srivastava.

9. During the pendency of the writ
petition, Smt. Abha Rastogi was brought
into L.T. grade on regular basis by order
dated 13.02.2006 w.e.f. 05.04.1995 and
since then she has been working in the
L.T. Grade and on account of pendency of
writ petition her regularization is not
being considered and on the strength of
her
26
years
service
she
claims
regularization under Section 33B of 1982
Act for which Smt. Abha Rastogi
preferred Writ Petition No. 1172 of 1996.

10. In rebuttal, Sri K.D. Nag,
Advocate appearing for Smt. Abha
Rastogi contends that the appointment
letter dated 31.12.1986 was an invalid
appointment letter as it was issued prior to
356 INDIAN LAW REPORTS ALLAHABAD SERIES
the approval of the RIGS. Under the Uttar
Pradesh Secondary Education Services
Commission (Removal of Difficulties)
(Second) Order, 1981, the selection
process has to be approved by the RIGS
and it is only after the approval the
appointment letter could have been
issued. According to Sri K.D. Nag,
appointment
letter
was
issued
on
25.08.1987 and Smt. Abha Rastogi had
duly accepted and joined. She had
approached
the
RIGS
on
several
occasions
vide
complaint
dated
14.04.1987, 05.05.1987 and again on
25.05.1987 for issuance of appointment
letter, but the Management was conniving
with Km. Suman Srivastava and in turn
misleading the RIGS. It is further
contended that Km. Suman Srivastava has
no locus to challenge the appointment of
Smt. Abha Rastogi as Smt. Abha Rastogi
had accepted the offer of appointment and
the select list stood exhausted. It is on
account of misrepresentation on the part
of Committee of Management that the
RIGS had passed the impugned order
dated 25.08.1987 by which approval was
rejected and in pursuance thereof the
Committee
of
Management
had
terminated the services of Smt. Abha
Rastogi vide order dated 31.08.1987.

11. Sri K.D. Nag, Advocate
appearing for Smt. Abha Rastogi has
relied upon following judgments.

(2001) 3 SCC 328, Buddhi Nath
Chaturvedi & others versus Abahi Kumar
& others, (2007) 1 UPLBEC 120, Sadhna
Kumari (Smt.) vs. State of U.P. and
(1994) All C.J. 781, Rajendra Prasad
Srivastava versus DIOS Gorakhpur. Civil
Misc. Writ Petition No. 13572 of 2003,
Chandra Mohan Pandey Versus District
Inspector of Schools, Deoria and others,
decided on 23.08.2005. The judgment was
affirmed in Special Appeal No. 977 of
2006, District Inspector of Schools,
Deoria and another Versus Chandra
Mohan Pandey and another decided on
08.12.2006.

12. Learned Standing Counsel has
not disputed the factual matrix and has
contended that as per the provisions of the
Act and the Regulations framed there
under and Uttar Pradesh Secondary
Education
Services
Commission
(Removal of Difficulties) (Second) Order,
1981, a valid appointment letter can be
issued after the approval has been granted
by the RIGS. Any appointment letter sent
prior to the date is nullity within the
meaning of law and in case appointment
letter is issued prior to the date of
approval then it would only become valid
from the date on which the approval was
granted by the RIGS. The legal right to
salary accrues only from the date of
approval, the Order 1981 requires prior
approval. In respect of Km. Suman
Srivastava no approval was granted nor
payment of salary was made at any point
of time, she has no claim as the candidate
at serial no. 1 i.e. Abha Rastogi had
joined the post of Assistant Teacher.

13. Rival submissions fall for
consideration.

14. In Ashika Prasad Shukla vs.
District Inspector of Schools, Allahabad
and another, (1998)3 ESC 2006, a
Division Bench of this Court held:

"15. The next question that falls for
consideration is whether the appointment
of the petitioner-appellant could still
stand invalidated on the ground that it
was make without prior approval of the
1 All] Km. Suman Srivastava Vs. State of U.P.and Ors.
357
District Inspector of Schools, Sri Yatindra
Singh placed reliance on a Division
Bench
decision
of
this
Court
in
A.K.Pathshala vs. Smt. M.D.Agnihotri,
1971 Alld.L.J. 983, wherein it was held,
on construction of Section 16-F(1) of the
U.P. Intermeditate Education Act, 1921,
that appointment without prior approval
by the Competent Authority would, in the
eye of law, be no appointment. The ratio
of the said decision as held by a
subsequent Division Bench in Lalit
Mohan Misra vs. District Inspector of
Schools, 1979 All.L.J. 1025, is that a
"person gets the status of a teacher when
requisite formality is completed." The
relevant observation are as under:-

"Without approval the person does
not get the status of a teacher even though
the approval is to be followed by formal
letter but in the absence of formal letter
the person gets the status of a teacher
after approval to the appointment is given
by the District Inspector of Schools. The
appointment of a person as a teacher
becomes effective only from the date
approval is given and even if a person is
allowed to work before that the same has
no
recognition
under
the
U.P.
Intermediate Education Act."

16.Paragraph 2(3)(iv) of the Second
Removal of Difficulties Order is not
phrased in a prohibitory language as was
the language used in Section 16-F(1) of
the U.P. Intermediate Education Act,
1921. The words 'prior approval' have
been used in sub-clause(ii) of paragraph
2(3) of the Second Removal of Difficulties
Order and a conjoint reading of subclauses (ii),(iii) and (iv) of clause (3) of
paragraph 2, no doubt, leads to an
inescapable
conclusion
that
the
appointment would be issued under the
signature of the Manager only on the
approval having been communicated by
the District Inspector of Schools within
seven days of the receipt of the papers or
where the approval is deemed to have
been accorded as visualized by sub-clause
(iii) of clause (3) of paragraph 2 of the
Second Removal of Difficulties Order.
However, appointment if made prior to
approval or deemed approval, would
become effective from the date of
approval of deemed approval as held by
the Division Bench of this Court in Lalit
Mohan Misra."

Similar view was again held by a
Division Bench of this Court in Special
Appeal No.319 of 2005 in Smt. Shobha
Rastogi
vs.
The
Committee
of
Management and others, decided on
22.3.2005. From the aforesaid judgments,
the conclusion arrived is that the
appointment could be issued by the
Manager
only
on
the
approval
communicated by the District Inspector of
Schools within seven days of the receipt of
the papers or where the approval was
deemed to have been accorded as
visualized by sub clause (iii) of clause (3)
of Paragraph 2 of the Second Removal of
Difficulties
Order.
Further,
any
appointment made prior to the approval
or deemed approval would become
effective only from the date of approval or
deemed
approval
and
that
the
appointment made prior to the approval
or deemed approval would not be held to
be illegal. In view of the aforesaid, the
authority was not justified in rejecting the
case
of
the
petitioner
on
this
ground..............."

15. This Court in Lal Bahadur v.
State of U.P. and others, [(2013) 4
UPLBEC 2769] had interpreted "prior
approval" and "permission" as contained
in Regulation 101 in case of appointment
of class IV post and relied upon Amit
358 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar v. District Inspector of Schools,
Jaunpurand others, (2001) 1 UPLBEC
481, wherein it has been held that
Regulation 101 clearly expresses that
prior approval of D.I.O.S. is a condition
precedent for making any appointment on
a non-teaching post. Relevant extract of
the aforesaid judgment is quoted below:-

"From the aforesaid meaning of the
word "except" it is clear that the
expression "except" has been used in
Regulation
101
to
mean
"only".
Therefore, the appointing authority before
making appointment on a non-teaching
post could make any appointment only
after obtaining prior approval of DIOS.
In my opinion use of these two words
'shall' and "except" have been used in
imperative terms. And clearly express that
prior approval of DIOS is a condition
precedent for making any appointment on
a non-teaching post. Use of word "except"
with the prior approval of DIOS does not
leave any discretion to the appointing
authority to make any appointment
without obtaining his prior approval. If
Regulation 101 is treated to be directory
then the appointing authority could make
appointment on non-teaching post even
without prior approval of the DIOS. It
would result in giving power to the
appointing authority to make appointment
first and thereafter obtain financial
approval. This was not the intention of
legislature or the Rule making authority.
And it clearly intended that before making
any appointment the appointing authority
must obtain prior approval of the DIOS.
The legislative intent has to be given
effect to while interpreting regulatory
provisions of Regulation 101. Regulations
103 to 106 to Regulations further make it
clear that the Regulation 101 cannot be
construed as permissive or directory.
Further
the
procedural
safeguard
contained in Regulation 101, making it
obligatory for the appointing authority in
matters of making appointment on nonteaching posts, not to fill the vacancy
except with the prior approval of the
DIOS, has an element of public interest.
Regulation
103
providing
for
appointments under the Dying in Harness
Rules makes it obligatory on the DIOS to
provide appointment to dependents not
only in the institution where the deceased
was working but any other institution,
therefore,
the
only
reasonable
interpretation which can be given to the
two words "shall" and "except" used in
Regulation 101 is that these expressions
are
imperative
and
the
regulatory
provision contained in Regulation 101 is
mandatory and cannot be treated to be
directory. The requirement of obtaining
prior approval of DIOS is not an empty
formality. It is in public interest. The
appointment of petitioner being contrary
to Regulation 101 did not vest any right in
him either to claim his appointment as
regular or any salary."

13. Regulation 101 was again
interpreted by a Division Bench of this
Court in the case of Jagdish Singh Vs.
State of U.P. and others, reported in
[2006(24) LCD 1712], wherein after
discussing entire provisions on the
subject, the Division Bench of this Court
has clearly held that prior approval
contemplated in Regulation 101 is the
prior approval of the District Inspector of
Schools after completion of the process of
selection
and
before
issuance
of
appointment
letter
to
the
selected
candidates. This Court in the aforesaid
judgment of Jagdish Singh Vs. State of
U.P. And others (supra) has clearly
discussed
the
difference
between
iwokZuqeksnu and vuqefr i.e. 'prior
1 All] Km. Suman Srivastava Vs. State of U.P.and Ors.
359
approval'
and
'permission'.
After
discussing the issue, it has been held by
this Court in the said case that what
Regulation 101 requires is that District
Inspector of Schools will accord his
approval to the selection made by the
appointing authority and it is only after
approval of the District Inspector of
Schools to the selection that appointing
authority can issue appointment order to
the selected candidate."

16. From the facts and law stated
herein above, it is admitted case of the
respondents
viz
Committee
of
Management and RIGS that no approval
was accorded to the selection of Km.
Suman Srivastava and no appointment
letter was issued to her, where as approval
was accorded to the selection of Smt.
Abha Rastogi by RIGS and appointment
letter was issued to her and she joined in
pursuance thereof and is working on L.T.
Grade after abolition/merger of C.T.
Grade to L.T. Grade. In the opinion of the
Court Km. Suman Srivastava has no locus
to challenge the selection of Smt. Abha
Rastogi nor is she an aggrieved persons.

17. The meaning of the expression
'person aggrieved' will have to be
ascertained with reference to the purpose
and the provisions of the statute. One of
the meaning is that person will be held to
be aggrieved by a decision if that decision
is materially adverse to him. The
restricted meaning of the expression
requires denial or deprivation of legal
rights. A more legal approach is required
in the background of statues which do not
deal with the property rights but deal with
professional misconduct and morality.
(Bar Council of Maharastra vs. M.V.
Dabholkar, (1975) 2 SCC 702-11, paras
27 & 28).

18. Broadly, speaking a party or a
person is aggrieved by a decision when, it
only operates directly and injuriously
upon
his
personal,
pecuniary
and
proprietary rights (Corpus Juris Seundem.
Edn. 1, Vol.IV., p. 356, as referred in
Kalva Sudhakar Reddy vs. Mandala
Sudhakar Reddy, AIR 2005 AP 45, 49
para 10)

19.

The
expression
'person
aggrieved' means a person who has
suffered a legal grievance i.e. a person
against whom a decision has been
pronounced which has lawfully deprived
him of something or wrongfully refused
him something.

20. Km. Suman Srivastava does not
dispute that she was not the selected
candidate and appointment letter was
issued in favour of Smt. Abha Rastogi and
her selection was also approved by the
R.I.G.S. After issuance of appointment
letter and in pursuance thereof Smt. Abha
Rastogi joined the post, Other candidates
in the list had no locus as the selections
stood exhausted. The Committee of
Management as well as the R.I.G.S. have
not supported the case of Km. Suman
Srivastava and the approval of Km.
Suman Srivastava was rightly rejected by
the R.I.G.S. Km. Suman Srivastava had
no locus to challenge the selection of Smt.
Abha Rastogi and neither she was an
aggrieved person.

21. This Court while vacating the
interim order passed in favour of Km.
Suman Srivastava had noticed vide order
dated 09.03.1990 that the Management by
one letter gave an impression to the RIGS
that Smt. Abha Rastogi had refused the
offer of appointment and on the basis of
the letter of the Management the RIGS
360 INDIAN LAW REPORTS ALLAHABAD SERIES
cancelled the approval in favour of Smt.
Abha
Rastogi
and
thereafter
the
Committee of Management terminated
her service. No opportunity was given to
Smt. Abha Rastogi before passing the
impugned order.

22. In Basudeo Tiwari Vs. Sido
Kanhu University & Others (1998) 8 SCC
194,
Hon'ble
Supreme
Court
held
requirement of audi alteram partem flows
from Article 14 in order to ensure State
action to be just, fair and reasonable
procedural requirement of natural justice
has to be implied before dispensing with
the services of a person. Paragraphs 9 and
10 are reproduced:-

9. The law is settled that nonarbitrariness is an essential facet of
Article 14 pervading the entire realm of
State action governed by Article 14. It has
come to be established, as a further
corollary, that the audi alteram partem
facet of natural justice is also a
requirement of Article 14, for natural
justice is the antithesis of arbitrariness. In
the sphere of public employment, it is well
settled that any action taken by the
employer against an employee must be
fair, just and reasonable which are the
components
of
fair
treatment.
The
conferment
of
absolute
power
to
terminate the services of an employee is
an antithesis to fair, just and reasonable
treatment. This aspect was exhaustively
considered by a constitution Bench of this
Court in Delhi Transport Corpn. v.
D.T.C. Mazdoor Congress.

10. In order to impose procedural
safeguards, this Court has read the
requirement of natural justice in many
situations when the statute is silent on this
point. The approach of this Court in this
regard is that omission to impose the
hearing requirement in the statute under
which the impugned action is being taken
does not exclude hearing - it may be
implied from the nature of the power -
particularly when the right of a party is
affected adversely. The justification for
reading such a requirement is that the
Court merely supplies omission of the
legislature. (vide Mohinder Singh Gill vs.
Chief Election Commissioner) and except
in case of direct legislative negation or
implied exclusion. (vide S.L. Kapoor v.
Jagmohan).

23. In Mohan Lal Sharma versus
The
District
Inspector
of
Schools
Muzaffar
Nagar
and
others,
[1982
UPLBEC 213], the Division Bench has
held that the D.I.O.S. has no power to
review once an approval has been granted
and even assuming that the order of
approval was granted by mistake even
then D.I.O.S. has no jurisdiction to revoke
the
same
unless
opportunity
of
explanation
of
hearing
was
given.
Paragraph 1 is reproduced:-

"There is no provision in the
Intermediate Education Act or in the
regulations framed thereunder conferring
power on the District Inspector of Schools
to review an order according approval
under section 16-E of the Act. The District
Inspector of Schools, like any other
statutory authority, has, however, power
to recall or revoke its order it it is
obtained by mistake, misrepresentation or
fraud. Even assuming that the order of
approval was passed under some mistake,
the Inspector had no jurisdiction to
revoke the same unless some opportunity
of explanation of hearing was given to the
petitioner because once an approval is
granted to the appointment of a teacher
and if orders of his appointment are
1 All] Km. Suman Srivastava Vs. State of U.P.and Ors.
361
issued, vested rights are created in his
favour."

24. It is not in dispute between the
parties that it was temporary vacancy and
the procedure as prescribed under the
Uttar
Pradesh
Secondary
Education
Services
Commission
(Removal
of
Difficulties) (Second) Order, 1981 is
applicable. Sub-clause 3(i) provides that
management shall intimate the vacancies
to the District Inspector of Schools/RIGS
and shall also immediately notify the
same on the notice board of the
institution, requiring the candidates to
apply to the Manager of the institution
along with the particulars given in
Appendix "B" to this Order. Order (ii) of
sub-clause
3
provides
names
and
particular of the candidate and also of
other candidates and the quality point
marks allotted to them shall be forwarded
by the Manager to the District Inspector
of Schools for this prior approval. Subclause (iv) provides on receipt of the
approval of the District Inspector of
Schools or, as the case may be, on his
failure, to communicate his decision
within seven days of the receipt of papers
by
him
from
the
Manager,
the
management shall appoint the selected
candidate and an order of appointment
shall be issued under the signature of the
Manager. Order (i), (ii), (iii) and (iv) of
sub-clause 3 are reproduced:

"(3) (i) The management shall
intimate the vacancies to the District
Inspector of Schools and shall also
immediately notify the same on the notice
board of the institution, requiring the
candidates to apply to the Manager of the
institution along with the particulars
given in Appendix "B" to this Order. The
selection shall be made on the basis of
quality point marks specified in the
Appendix to the Uttar Pradesh Secondary
Education Services Commission (Removal
of Difficulties) Order, 1981, issued with
Notification No. Ma-1993/XV-7 (79)-
1981, dated July 31, 1981, hereinafter to
be referred to as the First Removal of
Difficulties Order, 1981. The compilation
of quality point marks shall be done under
the personal supervision of the Head of
institution.

(ii) The names and particulars of the
candidate selected and also of other
candidates and the quality point marks
allotted to them shall be forwarded by the
Manager to the District Inspector of
Schools for his prior approval.

(iii) The District Inspector of Schools
shall communicate his decision within
seven days of the date of receipt of
particulars by him failing which the
Inspector will be deemed to have given
his approval.

(iv) On receipt of the approval of the
District Inspector of Schools or, as the
case
may
be,
on
his
failure,
to
communicate his decision within seven
days of the receipt of papers by him from
the Manager, the Management shall
appoint the selected candidate and an
order of appointment shall be issued
under the signature of the manager."

25. A bare perusal of Para 3 subclause (ii) and (iii), it is incumbent upon
the Manager to issue an order of
appointment after prior approval from the
D.I.O.S. Or after a lapse of seven days
from the date of receipt of particulars.

26. It is evident from the facts that on
25.08.1987 the case of Km. Suman
Srivastava has been rejected by the RIGS
362 INDIAN LAW REPORTS ALLAHABAD SERIES
and on the same date appointment letter is
issued to Km. Abha Rastogi and she joined
on the following date. The approval was
granted by R.I.G.S. on 28.02.1987. The
Manager of the College in connivance with
Suman Srivastava tried to mislead the RIGS
by creating an impression that Km. Abha
Rastogi has refused to join vide letter dated
12.02.1987. The RIGS in the impugned
order dated 25.08.1987 takes notice of the
fact that Km. Abha Rastogi vide letter dated
25.04.1987 had complained to the RIGS
that the Management is not cooperating and
not issuing the appointment letter and taking
notice of the fact that the Management had
allowed Km. Abha Rastogi last opportunity
to join by 10.02.1987 and vide letter dated
12.02.1987 Abha Rastogi refused the offer
of appointment, the impugned order has
been passed without issuing notice to Smt.
Abha Rastogi. The approval is granted in
February, 1987 and the Management issues
appointment letter in August 1987 and in
the intervening six months the Management
in collusion with Km. Suman Srivastava
tried to non-suit Smt. Abha Rastogi on fact
which was otherwise false and fabricated.
The R.I.G.S. Should have issued notice to
Km. Abha Rastogi before passing the order
dated 25.08.1987 for the reason that Km.
Abha Rastogi had already complained to the
R.I.G.S. that the Manager was not issuing
appointment letter. The withdrawal of
approval and consequential order of
termination without opportunity was bad
and unsustainable and is liable to be set
aside on that ground alone.

27. In due course of time, one Smt.
Raksha
Saxena
Assistant
Teacher
working in L.T. Grade was confirmed by
letter
dated
09.05.1989.
The
post
occupied by Km. Abha Rastogi became
substantive vacancy. Section 33B was
inserted on 06.04.1991 in U.P. Secondary
Education Services Selection Board Act
1982 for regularization of ad hoc teachers
including teachers appointed on short
term vacancy. It is not in dispute that Km.
Abha Rastogi fulfills all conditions for
regularization under Section 33-B. C.T.
Grade was declared dying cadre by the
State of U.P. and as a matter of policy
decision all C.T. Grade teachers were
liable to be brought into next higher grade
in the L.T. Grade. Km. Abha Rastogi was
brought into L.T. Grade on regular basis
w.e.f.
05.04.1995
vide
letter
dated
13.02.2006. The District Inspector of
Schools rejected the claim of Km. Abha
Rastogi for regularization in C.T. Grade
vide order dated 23.03.1995 which is
impugned in respect of Writ Petition No.
1172 of 1996 and was stayed by this
Court vide order dated 27.02.1996.
Thereafter, the District Inspector of
Schools
issued
another
letter
on
13.121996 to the manager of the college
to send papers of Km. Abha Rastogi for
regularization. The matter is pending and
has not been considered for regularization
on account of the pendency of the writ
petition.

28. For the reasons and law stated
hereinabove, the writ petition No. 5318 of
1987, Km.Suman Srivastava Versus State
of U.P. and others, is devoid of merit and
is dismissed. Writ Petition No. 1172 of
1996, Smt. Abha Rastogi Versus State of
U.P. and Writ Petition No. 6221 of 1987,
Smt. Abha Rastogi Versus R.I.G.S.Lko,
are allowed. The impugned orders dated
25.08.1987 and 31.08.1987 passed by the
R.I.G.S.
Lucknow
and
Manager
respectively and order dated 23.03.1995
passed by the District Inspector of
Schools, Lucknow, are quashed. It is
directed that the case of Smt. Abha Rastogi
shall be considered for regularization under
1 All] Mohd. Haroon & Ors. Vs. State of U.P. and Anr.
363
Section 33-B of the U.P. Secondary
Education Selection Board Act, 1982 within
three months from the date of service of
certified copy of the order.

29. No order as to cost.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2014

BEFORE
THE HON'BLE VIRENDRA VIKRAM SINGH, J.

Criminal Misc. Application No. 5830 of 2014,
(u/s 482 Cr.P.C.)

Mohd. Haroon & Ors. ..... Applicants
Versus
State of U.P. and Anr...... Opp. Parties

Counsel for the Petitioner:
Sri Ved Mani Sharma

Counsel for the Respondents:
A.G.A.

Cr.P.C. Section-482-application to quash
criminal
proceedings-on
basis
of
compromise-offence under section 323, 324,
326, 504, 506 IPC-held-offence under
Section 326 IPC found proved-offence being
serious in nature having impact on society
can not be quashed merely based upon
compromise-claims rejected.

Held: Para-11
Offence under section 326 IPC was found
proved against them, which is a serious
offence punishable upto life imprisonment.
Thus, the offence in question is definitely a
serious nature of offence having its impact
over the society. Hence, the same cannot
be permitted to be quashed simply
because the parties have entered into
compromise.

Case Law discussed:
(2003) 4 SCC 675; (2008) 9 SCC 677;
2012(10) SCC; (2008)16 SCC 1.
(Delivered by Hon'ble Virendra Vikram
Singh, J.)

1. Heard learned counsel for the
applicants
and
learned
Additional
Government Advocate for the State.

2. The applicants have approached this
Court by way of moving an application
under section 482 Cr.P.C. and have prayed
for quashing the proceedings of Criminal
Case No. 1075 of 2011 (State vs Mohd
Haroon and others) arising out of Case
Crime No. 441 of 2009, under sections 324,
323, 326, 504 and 506 IPC, PS Nawabganj,
district Bareilly pending before the Judicial
Magistrate, Nawabganj, Bareilly.

3. The only ground on which the
quashing of the criminal proceedings has
been prayed is that the applicants have
entered into compromise with Umakant,
injured in the case. A joint affidavit
showing the compromise between the
parties has been filed as annexure-4 to the
present application.

4. It has been argued that since the
parties have entered into compromise, the
proceedings of the case be quashed in
view of the judgment of Hon'ble the Apex
Court in the case of B.S. Joshi vs State of
Haryana (2003) 4 SCC 675 and Nikhil
Merchant
vs
Central
Bureau
of
Investigation and Another (2008) 9 SCC
677.

5. The offence in question involves a
serious offence like 326 IPC, which is
punishable upto life imprisonment. The
question at this juncture arises as to
whether the Court is obliged or duty
bound to quash the proceedings of a
criminal case, in which the accused and
the affected persons have entered into