# Krishna Mohan Tiwari v. District Inspector of Schools, Allahabad & Anr

- **Citation:** (2022) 3 ILRA 510
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-27
- **Case number:** Special Appeal Defective No. 20 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-mohan-tiwari-v-district-inspector-of-schools-allahabad-anr-48211
- **Pages:** 4

## Headnote

A. Service Law - U.P. Secondary
Education Services and Selection Board
Act, 1982 - Section 16(1), 16-E(11) -
Intermediate Education Act, 1921 -
Section
16-E
-
Education
-
Appointment
-Substantive
appointment
defined
in
the
Rules
framed under the Act of 1982 does not
include ad-hoc appointment which may
not exceed eleven months in academic
session. (Para 11)

In the present case, a substantive vacancy
occurred on the retirement of one Jai
Narain Vishwakarma on 30.06.1998 and the
Committee
of
Management,
without
following the statutory provisions of the Act
of
1982,
made
advertisement
on
11.04.1998/16.04.1998 and selected and
appointed the petitioner who allegedly
joined on 31.08.1998. Thus, appointment of
the petitioner was void as the procedure
prescribed u/sub-section (1) of S.16 of the
Act of 1982 had not been followed at all.
(Para 4, 10)

Special appeal dismissed. (E-4)

Precedent distinguished:

## Text

510 INDIAN LAW REPORTS ALLAHABAD SERIES
allotment with delivery of possession made
in favour of Rakesh Gupta, entitling him to
seek execution of a lease upon payment of
the due sale consideration. Whatever be the
merits of the parties' case, there was never a
lease about open land in existence executed
by the Authority carrying a stipulation
about time within which the lessee must
construct. Rakesh Gupta was never a
lessee. He was a mere allottee. Sub-Section
(4) of Section 18 does not envisage action
by way of cancellation of allotment,
entitling the allottee to the execution of a
lease. It speaks about forfeiture of a
concluded lease with a decision to re-enter
by the Authority for the lessee's failure to
construct or substantially construct within
the covenanted time. Therefore, an order of
the kind passed against Rakesh Gupta,
cancelling his allotment is not an order
even remotely made under sub-Section (4)
of Section 18. Quite apart, the order dated
02.05.2019 issued by the Authority is not
even an order cancelling Rakesh Gupta's
allotment. It is just a communication of the
fact to the petitioner that at some point of
time in the past, Rakesh Gupta's allotment
had been cancelled by the Authority on
account of non-payment of the specified
consideration agreed upon by parties. Also,
for another reason, the order of the
Authority would not be one that falls within
the terms sub-Section (4) of Section 18. It
is so because what was allotted to Rakesh
Gupta was a constructed house and not
open land to construct upon.

13. Thus, in the opinion of this Court,
no appeal under sub-Section (6) of Section
18 of the Act of 1973 lay to the District
Judge from the order dated 02.05.2019
passed by the Authority. It is, therefore,
held that Misc. Appeal No. 54 of 2019
ought not to have been entertained by the
District Judge or decided on merits by the
Additional District Judge, as it was neither
competent nor maintainable. It is made
clear that this Court has not expressed its
opinion about the rights of the petitioner,
either way, and if some remedy is open to
the petitioner under the law against the
action of the Authority, he is free to pursue
it.

14. No other point was pressed.

15. In the result, this petition fails and
stands dismissed.

16. Costs easy.

17. Let this order be communicated to
the Additional District Judge, Court No. 6,
Kanpur Nagar through the learned District
Judge, Kanpur Nagar and to the learned
District Judge, Kanpur Nagar by the
Registrar (Compliance).
----------
(2022)03ILR A510
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal Defective No. 20 of 2022

Krishna Mohan Tiwari ...Petitioner
Versus
District Inspector of Schools, Allahabad &
Anr. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Adv.)

Counsel for the Respondents:
C.S.C.
3 All. Krishna Mohan Tiwari Vs. District Inspector of Schools, Allahabad & Anr.
511
A. Service Law - U.P. Secondary
Education Services and Selection Board
Act, 1982 - Section 16(1), 16-E(11) -
Intermediate Education Act, 1921 -
Section
16-E
-
Education
-
Appointment
-Substantive
appointment
defined
in
the
Rules
framed under the Act of 1982 does not
include ad-hoc appointment which may
not exceed eleven months in academic
session. (Para 11)

In the present case, a substantive vacancy
occurred on the retirement of one Jai
Narain Vishwakarma on 30.06.1998 and the
Committee
of
Management,
without
following the statutory provisions of the Act
of
1982,
made
advertisement
on
11.04.1998/16.04.1998 and selected and
appointed the petitioner who allegedly
joined on 31.08.1998. Thus, appointment of
the petitioner was void as the procedure
prescribed u/sub-section (1) of S.16 of the
Act of 1982 had not been followed at all.
(Para 4, 10)

Special appeal dismissed. (E-4)

Precedent distinguished:

1. Santosh Kumar Singh Vs St. of U.P. & ors.,
2015 (5) AWC 4719 (Para 5)

2. Sushil Kumar Yadav Vs St. of U.P. & ors.,
2018 (1) AWC 462 (Para 5)

Present appeal challenges judgment and
order
dated
06.10.2021,
passed
by
learned Single Judge.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard Shri Ashok Khare, learned
Senior Advocate assisted by Shri Siddharth
Khare, learned counsel for the appellant
and
the
learned
Standing
Counsel
appearing for the State-respondents.

2. This special appeal has been filed
praying to set aside the order dated
06.10.2021 passed by a learned Single
Judge in Writ-A No.13736 of 2001 (Shri
Krishna
Mohan
Tiwari
vs.
D.I.O.S.
Allahabad & Ors.), whereby the writ
petition
filed
by
the
appellant
was
dismissed.

3. Undisputed facts of the present
case are that one Jai Narain Vishwakarma
was
Lecturer
in
Civics
who
was
superannuated on 30.06.1998. Thus, a
substantive vacancy occurred on retirement
of the aforesaid Jai Narain Vishwakarma
but no requisition was made by the
Committee of Management to fill up the
post of Lecturer in Civics. The procedure
prescribed under the provisions of the U.P.
Secondary
Education
Services
and
Selection Board Act, 1982 was not
followed at all by the Committee of
Management and instead the Committee of
Management itself advertised the post on
11.04.1998/16.04.1998 and appointed the
petitioner on the post of Lecturer, who
allegedly joined on 31.08.1998.

4. Learned Single Judge, while
referring to various provisions of the U.P.
Intermediate
Education
Act,
1921,
particularly in view of the provisions of
Section 16(2) of the U.P. Secondary
Education Services and Selection Board
Act, 1982, came to the conclusion that the
appointment of the petitioner was void as
the procedure prescribed under sub-section
(1) of Section 16 of the Act of 1982 had not
been followed at all.

5. Learned counsel for the petitionerappellant has relied upon a Full Bench
judgment of this Court in the case of
Santosh Kumar Singh vs. State of U.P. &
Ors. reported in 2015 (5) AWC 4719 and
512 INDIAN LAW REPORTS ALLAHABAD SERIES
submits that in view of the provisions of
Section 16-E of the Intermediate Education
Act, 1921, the Committee of Management
has power to make ad-hoc appointments.
He also relied upon Single Bench judgment
of this Court in the case of Sushil Kumar
Yadav vs. State of U.P. & Ors. reported in
2018 (1) AWC 462.

6. We have carefully considered the
submissions of the learned counsel for the
petitioner-appellant and we find no force in
his submissions.

7. It has been admitted before us by
learned counsel for the appellant that the
petitioner-appellant was appointed by the
Committee of Management against a
substantive
vacancy
pursuant
to
advertisement dated 11.04.1998/16.04.1998
issued by the Committee of Management.
That substantive vacancy occurred on
retirement of one Jai Narain Vishwakarma
on
30.06.1998.
The
petitioner
was
appointed
by
the
Committee
of
Management and he joined on 31.08.1998.
The provisions of Section 16(1) of the Act
of 1982 were not followed at all. Thus, in
terms of the procedure contained in subsection (1) of Section 16 of the Act of
1982, the appointment of the petitioner by
the Committee of Management was void.

8. The reliance placed by the learned
counsel for the petitioner-appellant on the
Full Bench judgment of this Court in the
case of Santosh Kumar Singh (supra) is of
no help to the petitioner. In the aforesaid
judgment, the Full Bench has framed
question no.(c) as under :-

"Whether under Section 16-E of
the Intermediate Education Act, 1921 (Act
of 1921), there is a power with the
Committee of Management to make adhoc appointment against short term
vacancies and if so then for what period."

9. The aforequoted question was
answered by the Full Bench in paragraph
19 as under:-

"(c) Under Section 16-E of the
Intermediate Education Act, 1921, the
Committee
of
Management
is
empowered to make an appointment
against a temporary vacancy caused by
the grant of leave to an incumbent for a
period not exceeding six months or in the
case of death, termination or otherwise,
of an incumbent occurring during an
educational session. An appointment made
under sub-section (11) of Section 16-E as
provided in the proviso thereto shall, in any
case, not continue beyond the end of
educational session during which the
appointment was made"

10. Thus, the Full Bench in the case
of Santosh Kumar Singh (supra) has dealt
with the situation where the ad-hoc
appointment was to be made against a
temporary vacancy caused by the grant of
leave to an incumbent for a period not
exceeding six months or in case of death,
termination or otherwise, of an incumbent
occurring during an educational session.
The facts of the present case are that a
substantive vacancy was occurred on the
retirement of one Jai Narain Vishwakarma
on 30.06.1998 and the Committee of
Management,
without
following
the
statutory provisions of the Act of 1982,
made
advertisement
on
11.04.1998/16.04.1998 and selected and
appointed the petitioner who allegedly
joined on 31.08.1998. Thus, the judgment
of the Full Bench has no application on
facts of the present case.
3 All. State of U.P. & Anr. Vs. Ram Pratap Singh & Ors.
513

11. The next judgment in the case of
Sushil Kumar Yadav (supra) relied upon
by the learned counsel for the petitionerappellant is also of no help to the petitioner
inasmuch as the facts were that two
substantive
vacancies
occurred
on
30.06.2011 and 30.06.2014 respectively
and the Management sent the requisitions
on 01.04.2011 and 17.06.2015 but the
Selection Board did not recommend any
candidate. Consequently, the Management
advertised the vacancy on the aforesaid
posts
on
25.06.2017
for
ad-hoc
appointment. On these facts, the learned
Single Judge, while referring the provisions
of Section 16-E(11) of the Act of 1982,
held that the substantive appointment
defined in the rules framed under the Act of
1982 does not include ad-hoc appointment
which may not exceed eleven months in
academic session. Thus, the judgment of
the learned Single Judge in the case of
Sushil Kumar Yadav (supra) has no
application on facts and circumstances of
the present case.

12. Thus, for all the reasons stated
above, we do not find any error or illegality
in the impugned order passed by the
learned Single Judge.

13. The special appeal lacks merit and
is, therefore, dismissed.
----------
(2022)03ILR A513
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.03.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA -I, J.

Special Appeal No. 75 of 2022

State of U.P. & Anr ....Appellant
Versus
Ram Pratap Singh & Ors. ...Respondents

Counsel for the Appellant:
C.S.C.

Counsel for the Respondents:
Sri Srideep Chatterjee, Sri Prashant Singh
Atal, Sri Satyanshu Ojha

A. Service Law - First Statute of University
- Ch. XII - Board's power to determine
the classification of teaching staff of
University - Earlier GO dated 22.07.1999
provide the pay scale to be paid w.e.f.
13.03.1992 and nomenclature of post as
the
Lecturers/Assistant
Professor
-
However,
by
subsequent
GO
dated
18.2.2000, the w.e.f date was changed as
22.07.1999 and nomenclature of post was
changed as the Senior Research Assistants
- Validity challenged - Ratification of the
decision earlier taken in 85th meeting by
the
Board
of
Management
in
86th
meeting, whether taken place or not -
Finding of Single Judge to the effect that
the decision of 85th meeting was not
ratified in subsequent meeting was held
by the Division Bench not sustainable in
the eye of law - Division Bench held that
it is not a case where the decision taken in
an earlier meeting was not considered for
ratification in the subsequent meeting. It
was rather considered and decided not to
ratify the same - Division Bench further
held that it is in this background it
appears that the State Government while
issuing GO dated 18.02.2000 has modified
the earlier order dated 22.07.1999. (Para
5, 38 and 42)
Special appeal allowed. (E-1)

(Delivered by Hon'ble Devendra Kumar
Udadhyaya, J.)

1. Heard Shri Amitabh Rai, learned
Additional
Chief
Standing
Counsel
representing
the
appellants-State