# Miss. Sunita Sharma and another v. D.I.O.S., Mathura and others

- **Citation:** (2003) 1 ILRA 167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-01-29
- **Case number:** Civil Misc. Writ Petition No. 14333 of 1998
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/miss-sunita-sharma-and-another-v-d-i-o-s-mathura-and-others-39930
- **Pages:** 4

## Headnote

Constitution of India- Article 226- the
refusal in not making sanction and
approval of the appointment by the
District Inspector of Schools is not
legally
judifiable
as
the
said
ban
dated29.6.1991
was
superseded
by
another G.O. dated 26 September, 1991
by
which
the
ban
for
making
appointment against the short term
vacancy was lifted.

Held - Para 9

The averments made in the counter
affidavit of the District Inspector of
School has been controverted and the
contentions of the writ petition have
been
reiterated
on
behalf
of
the
petitioner.

## Text

http://www.allahabadhighcourt.nic.in
1All] Miss. Sunita Sharma and another V. D.I.O.S., Mathura and others 167
who is also doing trading business cannot
carry on manufacturing unit of a different
commodity. Even the Circular issued by
the Commissioner of Trade Tax does not
impose any such condition. On the
contrary it says that the bar has only been
imposed for not trading in the product and
not with the raw material. The oil seed is
not the product of the unit of the
petitioner and it was also not the case of
the
respondents
either
before
the
Divisional Level Committee or before this
Court that the petitioner is also carrying
on the trading activities in oil or oil cake.

8. In view of the above the writ
petition is allowed. The impugned orders
dated 16th March, 1988, communicated
by the letter dated 31.3.1988 (Annexure 3
to the writ petition) and the order dated
2.6.1988 filed as Annexure CA-1 to the
counter affidavit rejecting the review
application of the petitioner are quashed.
Since no other ground was taken for
refusing to grant eligibility certificate to
the petitioner, we direct the respondents
to issue the requisite eligibility certificate
to the petitioner under section 4 A of the
U.P. Trade Tax Act.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.1.2003

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

Civil Misc. Writ Petition No. 14333 of 1998

Miss. Sunita Sharma and another

 ...Petitioners
Versus
District Inspector of Schools and others

 ...Respondents

Counsel for the Petitioners:
Sri V.C. Misra
Sri Vikrant Pandey
Sri Krishna Murari

Counsel for the Respondents:
Sri Vashishtha Tiwari, S.C.

Constitution of India- Article 226- the
refusal in not making sanction and
approval of the appointment by the
District Inspector of Schools is not
legally
judifiable
as
the
said
ban
dated29.6.1991
was
superseded
by
another G.O. dated 26 September, 1991
by
which
the
ban
for
making
appointment against the short term
vacancy was lifted.

Held - Para 9

The averments made in the counter
affidavit of the District Inspector of
School has been controverted and the
contentions of the writ petition have
been
reiterated
on
behalf
of
the
petitioner.

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

Heard Sri V.C. Misra, learned Senior
Advocate with Sri Vikrant Pandey,
counsel for the petitioner and learned
http://www.allahabadhighcourt.nic.in
168 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Standing Counsel for the respondent no.
2.

1. In this writ petition a prayer has
been made by the petitioner for a writ of
certiorari calling the respondents to
produce the record of the case and to
quash the impugned orders dated 7.3.1998
and 19.3.1998 (Annexure 8 and 9 to the
writ petition) passed by respondent no. 1,
whereby the respondent no. 1 disapproved
the appointment of the petitioner no. 1 as
a Lecturer in Biology made on short term
vacancy
on
the
ground
that
vide
Government order dated 30.7.1991, there
has been a total ban on the appointment
and further the Director of Education vide
his letter dated 31.8.1991 has directed that
no final approval be accorded to any
appointment in Intermediate College.
Similarly
the
appointment
of
the
petitioner no. 2 as Assistant Teacher in
L.T. Grade was also dis-approved on the
aforesaid
ground
vide
order
dated
19.3.1998 by the respondent no. 1. While
disapproving the appointment of both the
petitioners on the ground of ban imposed
by the aforesaid Government order, the
respondent no. 1 lost sight of the
Government
order
dated
26.9.1991,
whereby the ban imposed was superseded
and lifted.

2. It appears that on 30.6.1997 the
Principal of the Institution Chameli Devi
Girls Inter College, Mathura retired and
as such one Km. Snigdha Talpatra, who
was the senior most teacher in the
Institution was given adhoc promotion
and appointed as adhoc Principal of the
Institution. As result of promotion of
Miss. Snigdha Talpatra, a short term
vacancy arose in the Lecturer grade and
similarly another short term vacancy
arose on account of promotion of Smt.
Pushpa Pandey, a L.T. grade teacher to
Lecturer Grade. Thereafter the selection
committee
after
interviewing
the
candidates, recommended the name of the
petitioners for appointment on the post of
Lecturer (Biology) and as Assistant
Teacher in L.T. grade, respectively. On
the basis of the aforesaid recommendation
the management issued an appointment
order dated 17.7.1997 appointing the
petitioner no. 1 as a Lecturer is Biology in
short term vacancy and the petitioner no.
2 was also given appointment on the same
day as Assistant Teacher in L.T. Grade in
the short term vacancy.

3.

However,
thereafter
the
Committee of Management forwarded the
papers pertaining to the appointment of
the petitioners to the District Inspector of
Schools, Mathura for approval vide letter
dated 18.10.1997, which was disapproved
on 7.3.1998 by the respondent no. 1,
D.I.O.S. Mathura by saying that the ban
for
making
appointment
to
direct
recruitment or to short term vacancy
under the purview of the Commission was
prevailing.

4. Sri V.C. Misra, learned Senior
Counsel appearing for the petitioner, has
argued that there is no other ground
referred in impugned order in question in
the writ petition.

5. The Counter affidavit has been
filed by the Manager, Chameli Devi
Kahndelwal Girls Inter College, Mathura,
wherein in para 7 he has mentioned that
the vacancy in question was advertised
and published in local Hindi news paper
having vide circulation in the state and the
applications were invited amongst the
duly qualified candidates and a proper
selection committee was constituted in
http://www.allahabadhighcourt.nic.in
1All] Miss. Sunita Sharma and another V. D.I.O.S., Mathura and others 169
which eight candidates appeared before
the selection committee, out of which the
petitioner nos. 1 and 2 were selected and
appointed as Lecturer in Biology and
Assistant
Teacher
in
L.T.
grade
respectively.
It
has
further
been
mentioned in the counter affidavit that the
G.O.
dated
26.9.1991
is
also
not
applicable in the case of the short term
vacancy and there was no ban at the
appointment of short term vacancy and as
such the selection of the petitioners were
made in accordance with law. However,
in the counter affidavit given on behalf of
the District Inspector of Schools, Mathura
it has been indicated as below:

"The advertisement was not in
accordance with the rules and regulations
framed under the U.P. Intermediate
Education Act. According to the existing
law, advertisement has to be made in two
daily news papers. One should be of State
level circulation and other of local
circulation so as to meet the requirement
of Article 14 and 16 of the Constitution of
India and this view has been approved by
this Hon'ble Court in its full Bench
decision reported in 1994 U.P.L.B.E.C.
(3) page 1551 popularly known as Radha
Raizada Case. In this case even according
to the petitioner, advertisement has been
made in a local Hindi news paper,
therefore, the petitioners' appointment is
bad in law and no approval could be
granted. Moreover, this aspect could not
be detailed in the order refusing the
approval of the petitioner's appointment
but the same may be read in consonance
with the order refusing the approval."

6.

Learned
counsel
for
the
petitioners has placed reliance on the
decision of this court passed on April 16,
1992 in Civil Misc. Writ Petition No. Nil
of 1992 Mahendra Pratap Singh v.
District Inspector of Schools (Enclosed as
Annexure 13 to the writ petition),
whereby while allowing the writ petition
of Mahendra Pratap Singh this Court vide
its order dated 16th April, 1992 has
noticed that the ban which was imposed
by Telex dated 29.6.1991 and G.O. dated
17.7.1991 has been superseded by another
G.O. dated 26th September, 1991 by
which the ban has been lifted.

7. On behalf of the learned counsel
for the petitioners reliance has been made
on a decision reported in Education
Service Cases at page 1670 (2000 (3)
ESC 1670 (All.). District Inspector of
Schools Kanpur Nagar and others v.
Diwakar Lal and others (Special Appeal
No. 40 of 2000 decided on 25th May,
2000), wherein it is mentioned that the
fresh ground in the counter affidavit
cannot
be
taken
by
the
authority
concerned. Para 7 of the above case reads
as under:

"7. The learned single Judge held
that by adding a ground in the counter
affidavit which did not find mention in
the impugned order passed by the District
Inspector of Schools, the respondents
cannot be permitted to support the
impugned order by carrying out a new
case or raise a new ground for the first
time before the Appellate/higher authority
or Court to make the order valid. In
support reference was made to the case of
Mohinder Singh Gill vs. Chief Election
Commissioner (AIR 1978 SC 851)"

8. The averments made in the
counter affidavit of the District Inspector
of School has been controverted and the
contentions of the writ petition have been
reiterated on behalf of the petitioner.
http://www.allahabadhighcourt.nic.in
170 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
9. I have heard learned counsel for
the parties and I find that the vacancy in
question were advertised and published in
the local news paper including Hindi
Dainik " AAZ" after its vide circulation in
the State and as such the vacancies were
advertised. However, the refusal in not
making sanction and approval of the
appointment by the District Inspector of
Schools is not legally judifiable as the
said ban dated 29.6.1991 by which the
ban for making appointment against the
short term vacancy was lifted.

10. The petitioners are entitled to
receive the salary from the next month
and onwards and the arrears of salary, if
they have taught in the Institution, and
the same shall be disbursed to them
within a period of six months from the
date of production of a certified copy of
this order.

11. A copy of this order be given to
the learned counsel for the petitioners on
payment of usual charges within three
days and learned Standing Counsel free of
charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.2.2003

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 35344 of 2001

Smt. Kanti Srivastava

...Petitioner
Versus
State Bank of India and others

 ...Respondents

Counsel for the Petitioner:
Sri B.B. Paul
Sri Subash Dewedi

Counsel for the Respondents:
Sri Vipin Sinha

Constitution
of
India,
Article
226-
Service
Law
Compassionate
appointment- claim rejected on the
ground- the widow has received lumsum amount from the employer bankapart from so many investment in the
life time of her husband- held- rejection
order illegal- direction issued for fresh
consideration in the light of observation
made by the Court.

Held- Para 7 & 8

The impugned order does not give
reason nor is there any application of
mind into the relevant factors or any
discussion on most material and vital
points.
The
authorities
have
not
bestowed laborious thoughts upon the
factors that the deceased was survived
by three minor daughters and they have
not also given thought to the fact
whether
the
family,
in
the
circumstances,
would
require
any
permanent source of income to sustain
itself after having lost its sole bread
earner to keep the pot of the family
boiling.

In the above perspective, the impugned
order cannot be sustained and is liable to
be quashed. In the result, the petition
succeeds
and
is
allowed
and
the
impugned order declining compassionate
appointment
to
the
petitioner
is
accordingly quashed attended with the
direction
to
the
respondent
Bank
authorities to reconsider the claim of the
petitioner
for
compassionate
appointment
in
the
light
of
true
intendment of the scheme.

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Petitioner, widow of late Ashok
Kumar Srivastava, who was serving as
Assistant Manager in the State Bank of
India and was at the relevant time, posted