# Mohan Lal Bagla v. Board of Revenue, U.P., Lucknow and others

- **Citation:** (2005) 1 ILRA 361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-04
- **Case number:** Civil Misc. Writ Petition No. 37178 of 2002
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-lal-bagla-v-board-of-revenue-u-p-lucknow-and-others-40452
- **Pages:** 7

## Headnote

other employees Act 1971-read with U.P.
Secondary
Education
Service
Commission
Act
1983-2
(hh)-word-
'vacancy'-caused as a result of death,
retirement,
resignation,
termination,
dismissal, creation of new post- on
appointment/promotion
of
the
incumbent on higher post-short term
vacancy-petitioner
appointed
after
fallowing the procedure occurred in the
year 1996-due to promotion of Mr. X- Y
challenged the seniority of 'x'- which has
been decided only on 6.10.99 holding Mr.
'y' to be senior than 'x'-accordingly the
management
passed
resolution
on
27.2.2000-DIOS held rightly, refused the
salary-petitioner can not get salary from
Government
Fund-However
the
management is responsible from his own
fund.

Held-Para 10

The petitioner was appointed in the year

## Text

1 All] Mohan Lal Bagla V. Board of Revenue, U.P., Lucknow and others
361

20. For the reasons indicated and the
analysis as made above, both applications
filed by the applicants i.e. is for review
and extension of time are hereby rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.3.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 37178 of 2002

Abhey Pal Singh

...Petitioner
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Sri B.D. Mandhyan
Sri A.P.S. Raghav

Counsel for the Respondents:
Sri S.K. Misra
S.C.

Payment of Salaries of the Teacher and
other employees Act 1971-read with U.P.
Secondary
Education
Service
Commission
Act
1983-2
(hh)-word-
'vacancy'-caused as a result of death,
retirement,
resignation,
termination,
dismissal, creation of new post- on
appointment/promotion
of
the
incumbent on higher post-short term
vacancy-petitioner
appointed
after
fallowing the procedure occurred in the
year 1996-due to promotion of Mr. X- Y
challenged the seniority of 'x'- which has
been decided only on 6.10.99 holding Mr.
'y' to be senior than 'x'-accordingly the
management
passed
resolution
on
27.2.2000-DIOS held rightly, refused the
salary-petitioner can not get salary from
Government
Fund-However
the
management is responsible from his own
fund.

Held-Para 10

The petitioner was appointed in the year
1996.
In
my
opinion,
no
vacancy
occurred in the year 1996 and, therefore,
the petitioner could not have been
appointed on a short term vacancy in the
year 1996. The vacancy, if any, occurred
only when Sukhbir Singh was promoted
on 27.2.2000, on the basis of which a
short term vacancy arose on the post of
assistant teacher. Since the vacancy
arose
only
in
the
year
2000,
the
procedure
contemplated
under
U.P.
Secondary
Education
Services
Commission (Removal of Difficulties)
(Second) Order, 1981 and the directions
contained by the Full Bench decision in
the case of Radha Raizada reported in
1994 Vol. 3 UPLBEC-1551 was required
to be followed by the committee of
management.
Case law discussed:
2004 AWC-I-2070

(Delivered by Hon'ble Tarun Agarwala, J.)

1. In an educational institution
known
as
Swami
Purnanand
Inter
College, Chirodi, Bulandshar one Karan
Singh, a lecturer retired on 30.6.1991 and
after his retirement one Raghuraj was
promoted on an adhoc basis on the post of
a lecturer. Consequently, the post of an
Assistant Teacher fell vacant and this
vacancy, being a short term vacancy,
could not be filled up by way of
promotion. The said vacancy was duly
notified to the District Inspector of
Schools, Bulandhshar on 6.5.1005. It
further transpires that on 24.8.1996 an
advertisement was also made in the
newspapers, which had a wide circulation
and a selection committee met on
3.8.1996 in which the petitioner's name
was recommended and subsequently, the
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
committee of management issued a letter
of appointment dated 25.8.1996. The
committee
of
Management,
the
respondent no. 3 forwarded the papers to
the
District
Inspector
of
schools,
Bulandshahr for approval.

2. The promotion of Raghuraj Singh
on the post of lecturer on adhoc basis was
objected and challenged by one Sukhbir
and eventually on 6.10.1999 it was held
that Sukhbir Singh was entitled to be
promoted to the post of lecturer on the
vacancy caused by the retirement of Sri
Karan Singh. The controversy came to a
rest
finally
and
the
committee
of
management
by
a
resolution
dated
27.2.2000 promoted Sri Sukhbir Singh as
a lecturer.

3. According to the District
Inspector of Schools, the papers relating
the appointment of the petitioner was
forwarded on 9.6.2000 after the dispute
between Raghuraj Singh and Sukhbir
Singh came to an end. On the other hand,
according to the petitioner, the papers
relating to his appointment for approval
were sent much earlier and when no
orders was being passed by the District
Inspector of schools, the petitioner filed
Civil Misc. Writ Petition No. 54722 of
1999, which was disposed of with a
direction to the District Inspector of
Schools to decide the matter with regard
to his appointment. Based on the direction
of the court, the District Inspector of
schools by an order dated 19.2.2001
rejected
the
representation
of
the
petitioner and refused to grant approval to
the appointment of the petitioner on the
ground that though the appointment of the
petitioner was made on 15.8.1996, but the
papers relating to the grant of approval
was sent only on 19.6.2000 and that the
advertisement was only made in one
newspaper, which did not have a wide
circulation and that it only had a
circulation upto the district level.

4. The petitioner being aggrieved by
the order of the District Inspector of
Schools, filed Civil Misc. Writ Petition
No. 8321 of 2001, which was allowed by
a judgment dated 10.5.2002 was quashed.
This court held, that admittedly the
petitioner was appointed in the year 1996
on the basis of an alleged vacancy on
account of the promotion of Sri Raghuraj
Singh.
This
Court,
in
its
earlier
judgement, held, that the procedure with
regard to the appointment was followed,
namely, that the vacancy was advertised
in two newspapers having a wide
circulation. The Court further held that
since the promotion of Raghuraj Singh
was not approved and thereafter Sri
Sukhbir Singh was promoted in the year
2000, the question that was required to be
considered was as to when the vacancy
actually came into existence, i.e., whether
the vacancy came into existence in the
year 1996 when Raghuraj Singh was
promoted or whether the vacancy came
into existence when Sukhbir Singh was
promoted in the year 2000. This Court
remitted the matter to the District
Inspector of Schools, Bulandshahr to
decide this question.

5. The District Inspector of Schools
again considered the matter and by the
impugned order date 1.7.2002 again
refused to grant the approval of the
appointment of the petitioner on the post
of an Assistant Teacher. The District
Inspector of Schools held that the
promotion of Sri Raghuraj Singh was
disapproved and thereafter, Sukbir Singh
was promoted by the committee of
1 All] Abhey Pal Singh V. State of U.P. and others
363
management by its resolution dated
27.2.2000, thereafter, no vacancy arose in
the year 1996 and that a vacancy arose
only in the year 2000, when Sri Sukbir
Singh
was
promoted.
The
District
Inspector of Schools further held that the
salary on the post of Assistant Teacher
was paid to Sri Sukhbir Singh till
September 2000 and that no occasion
arose to pay the salary of an Assistant
Teacher to the petitioner. The District
Inspector of Schools further held that the
procedure relating to the appointment of
an Assistant Teacher on a short term
vacancy
under
the
U.P.
Secondary
Education
Services
Commission
(Removal of Difficulties) Second order,
1981 and the directions given in the Full
Bench decision in Radha Raizada's case
was not followed and, therefore, the
appointment of the petitioner could not be
approved. The petitioner has now again
filed the present writ petition.

6. Heard Sri G.K. Singh and Sri
V.K. Singh, the learned counsels for the
petitioner, the learned standing counsel
appearing for respondent nos. 1 and 2 and
Sri S.K. Misra, the learned counsel
appearing for respondent no. 3.

7. From the narration of the facts, it
is clear, that on account of the promotion
of Sri Raghuraj Singh, the petitioner was
appointed on a short term vacancy on an
adhoc basis as an assistant teacher in the
year 1996. It has also come on record, that
the alleged promotion of Sri Raghuraj
Singh was challenged by Sri Sukhbir
Singh and eventually by an order dated
6.10.1999 it was held that Sukhir Singh
being the senior most teacher was entitled
to be promoted on the basis of which, the
Committee of Management passed a
resolution on 27.2.2000 promoting Sri
Sukhbir Singh as a lecturer.

8. The question which now arises for
consideration is, when did the vacancy
occur? Whether the vacancy occurred in
the year 1996 when Raghuraj Singh was
promoted
or
whether
the
vacancy
occurred
when
Sukhbir
Singh
was
promoted in the year 2000. The word
'vacancy 'has not been defined either
under the Intermediate Education Act or
under U.P. Secondary Education Services
Commission (Removal of Difficulties)
(Second)
Order,
1981.
The
word
'vacancy' has, however, been defined in
Rule 2 (hh) of the U.P. Secondary
Education Service Commission Rules
1983, which reads as follows:

"2. (hh) 'Vacancy' means a Vacancy
arising out as a result of death, retirement,
resignation,
termination,
dismissal,
creation
of
new
post
or
appointment/promotion of the incumbent
to any higher post in a substantive
vacancy."

9. From the aforesaid, it is clear that
a vacancy arises when one of the
aforesaid conditions occur, namely, death,
retirement, etc., etc. or where a promotion
is made to a higher post in a substantive
capacity. In the present case, the alleged
promotion of Sri Raghuraj Singh disputed
and, eventually the dispute was decided
by an order dated 6.10.1999 in which it
was held that Sukhbir Singh was entitled
for the promotion. Based on this decision,
the committee of Management passed a
resolution dated 27.2.2000 promoting Sri
Sukhbir Singh as a lecturer. It was at this
stage that a vacancy arose on the post of
assistant teacher, which was required to
be filled up in the procedure prescribed
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
under the U.P. Secondary Education
Services
Commission
(Removal
of
Difficulties) (Second) Order, 1981.

10. The petitioner was appointed in
the year 1996. In my opinion, no vacancy
occurred in the year 1996 and, therefore,
the petitioner could not have been
appointed on a short term vacancy in the
year 1996. The vacancy, if any, occurred
only when Sukhbir Singh was promoted
on 27.2.2000, on the basis of which a
short term vacancy arose on the post of
assistant teacher. Since the vacancy arose
only in the year 2000, the procedure
contemplated
under
U.P.
Secondary
Education
Services
Commission
(Removal of Difficulties) (Second) Order,
1981 and the directions contained by the
Full Bench decision in the case of Radha
Raizada
reported
in
1994
Vol.
3
UPLBEC-1551
was
required
to
be
followed
by
the
committee
of
management.

11. Paragraph-2 of the U.P.
Secondary
Education
Services
Commission (Removal of Difficulties)
(Second) Order 1981 reads as follows:

"2. Procedure for filling up short
term vacancies-

(1) If short term vacancy in the post of a
teacher, caused by grant of leave to him
or on account of his suspension duly
approved by the District Inspector of
Schools or otherwise , shall be filled by
the management of the institution, by
promotion of the permanent senior most
teacher of the institution, in the next lower
grade.
The
Management
shall
immediately inform the District Inspector
of schools of such promotion alongwith
the particulars of the teacher so promoted.
(2) Where any vacancy referred to in
clause (1) cannot be filled by promotion,
due to non-availability of a teacher in the
next lower grade in the institution,
possessing
the
prescribed
minimum
qualifications, it shall be filled by direct
recruitment in the manner laid down in
clause (3).
(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
alongwith
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-7-1 (79)-
1981, dated July 31, 1981, hereinafter to
be referred to as the first Removal
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 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
1 All] Abhey Pal Singh V. State of U.P. and others
365
appoint the selected candidate and an
order of appointment shall be issued
under the signature of the Manager.

Explanation- For the purpose of this
paragraph-

(i) the
expression
'senior-most
teacher' means the teacher having longest
continues service in the institution in the
Lecturer's grade or the Trained graduate
(LT) grade, or Trained Under-graduate
(CT) grade or JTC pr BTC grade, as the
case may be.

(ii) in
relation
to
institution
imparting instructions, to women, the
expression ' District Inspector of schools'
shall mean the Regional Inspector of Girls
Schools.'

(iii) short term vacancy which is not
substantive and is of a limited duration.

12. Paragraph-2 of the aforesaid
order provides that a short term vacancy
can be filled by direct recruitment in the
manner laid down in Sub paragraph (3) of
paragraph-2 of the order if the said
vacancy cannot be filled up by way of
promotion.
Sub
paragraph
(3)
of
Paragraph 2 also provides that the
management shall intimate the vacancy to
the District Inspector of Schools and shall
also immediately notify the same on the
notice board of the institution. As per the
Full Bench decision in Radha Raizada's
case
(supra),
the
committee
of
management after intimating the vacancy
to the District Inspector of Schools was
required to make an advertisement in at
least two newspapers having an adequate
circulation in U.P. in addition to notifying
the said vacancy on the notice board of
the institution and further the applications
were also required to be called from the
local
employment
exchange
and,
thereafter, the procedure contemplated in
sub paragraph (3) (i), (ii), (iii) and (iv) of
Paragraph 2 of the U.P. Secondary
Education
(Removal
of
Difficulties)
(Second) Order 1981 was required to be
followed.

13. Admittedly, in the present case,
no such procedure was followed nor any
intimation of the vacancy was given by
the committee of management to the
District
Inspector
of
Schools,
Bulandshahr after promoting Sukhbir
Singh in the year 2000. Consequently, the
District Inspector of Schools was justified
in not approving the appointment of the
petitioner on the post of an Assistant
Teacher.

14. The Full Bench decision in
Radha
Raizada's
case
(supra)
has
categorically held that if the appointment
was not valid and had not been made in
accordance
with
law,
the
District
Inspector of Schools, was empowered not
to make the payment of the salary under
the U.P. High School and Intermediate
Colleges (Payment of salaries of Teacher
and other employees (Act 1971 to the
person so appointed.

15. The learned counsel for the
petitioner
submitted
that
since
the
appointment of the petitioner was made
after complying with the procedure
contemplated under the U.P. Secondary
Education
(Removal
of
Difficulties)
(Second) Order 1981, and the directions
given in Radha Raizada's case (supra)
was
also
forwarded,
therefore,
the
appointment of the petitioner may be
considered for approval on the vacancy
caused by the promotion of Sri Sukhbir
366 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Singh in the year 2000. In my view, since
the petitioner was not appointed on a
vacancy and no intimation was sent by the
committee of management to the District
Inspector of schools when the said
vacancy was created in the year 2000, it is
not possible for this Court to absorb or
regularize
the
appointment
of
the
petitioner on a vacancy which came into
existence in the year 2000. No doubt, the
petitioner
has
been
appointed
after
observance of the requisite procedure
contemplated
under
U.P.
Secondary
Education
(Removal
of
Difficulties)
(Second) Order 1981 and the directions
given in the Full Bench decision, but it
does not give a right to the petitioner or
for the committee of management to ask
for the salary under the Payment of
Salaries
Act
1971
from
the
State
Government. The District Inspector of
Schools, Bulandshahr, has an implied
power under the Payment of Salaries Act,
to examine as to whether the appointment
of the petitioner whose salary is called
upon to pay, had been made in accordance
with law and that the appointment was
valid. In the event, the District Inspector
of Schools, Bulandshahr, finds that the
appointment was not made fairly, he can
refuse to grant the payment of the salary,
1987 UPLBEC-553, a Division Bench of
this Court held that if the appointment of
a person was not made in accordance with
law, in that event, the District Inspector of
Schools was justified in refusing to grant
the financial approval and was justified in
stopping the payment of the salary to the
teachers under the Payment of Salary Act
1971. The said decision is fully applicable
to the present case.

16. The committee of management
of an educational institution has a right to
engage a teacher in excess of the
sanctioned strength. In the present case,
the committee of management appointed
the petitioner on a short term vacancy in
the year 1996, when in fact, no such
vacancy existed at that time. In such a
situation,
when
the
management
appointed the petitioner after following
the procedure on a non-existent vacancy,
the responsibility of payment of salary to
the petitioner was wholly upon the
committee of management, respondent
no. 3. In committee of Management,
Kanhaiya Lal Inter College, v. the
Presiding Officer, Labour court and
others, 2004 AWC Vol. 2070 it was held
that where an employee was engaged in
excess of the sanctioned staff, in such a
situation, the liability to make the
payment of the salary was upon the
committee of management from its own
resources. In the present case, the
petitioner is not at fault. The fault lies
with the committee of management, and
therefore, the committee of management
has to pay the salary to the petitioner from
its own resources.

17. In view of the aforesaid, I do not
find any infirmity in the impugned order
dated 1.7.2002 passed by the District
Inspector of schools, Bulandshahr. The
District
Inspector
of
Schools,
Bulandshahr was justified in not granting
the financial approval of the appointment
of the petitioner in the short term vacancy
on the post of an assistant teacher.
Consequently, the writ petition fails and is
dismissed. However, in the circumstances
of the case, the petitioner is entitled for
the payment of the salary from the
committee of management, respondent
no. 3, who shall pay the same through its
own resources. In the circumstances of
the case, there shall be no order as to cost.
---------
1 All] Abhey Pal Singh V. State of U.P. and others
367

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: THE ALLAHABAD: 29.3.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 48 of 2005

Naeem Ahmad

...Petitioner
Versus
Abdul Majeed

 ...Respondent

Counsel for the Petitioner:
Sri Deoraj

Counsel for the Respondent:
Sri K.M. Garg

U.P.
Urban
Building
(Regulation
of
letting Rent and Eviction) Act 1972- S-21
(c)(b)- Release application by land lord-
on the ground that the shop in question
is in dilapidated condition which requires
demolition and reconstruction-after the
expiry of 3 years of purchase-and after 6
month of earlier application-land lord
filed another application u/s 21(i)(a)-on
the ground after reconstruction he will
settle his unemployed son- whether both
applications are maintainable. held-'yes'.

Held-Para 8

On the question of buildings' being
dilapidated
which
requires
reconstruction
after
demolition,
the
findings arrived at by the prescribed
authority and affirmed by the appellate
authority, in my opinion, do not suffer
from any error much less manifest error
of law so as to warrant interference by
this Court under Article 226 of the
Constitution of India. Learned counsel
for the petitioner tries to demonstrate
that the findings are perverse by citing
one sentence from one affidavit and
another sentence from another affidavit
but in view of law laid down by the Apex
Court in the case of Ranjeet Singh Vs.
Ravi Prakash, (2004) 3 SCC 682, this
Court cannot sit in appeal to re-appraise
the evidence on the record in exercise of
powers
under
Article
226
of
the
Constitution of India when the findings
recorded by the prescribed authority and
affirmed by the appellate authority do
not suffer from error of law.
2001 (i) ARC -242
2004 (3) SCC-682

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

1. The brief facts leading to filing of
the present writ petition under Article 226
of the Constitution of India are that the
petitioner is the tenant of the shop in
dispute which is situated in a building
which is purchased by the respondentlandlord on 1st December 1993 from its
erstwhile
owner.
The
land
lord
immediately
after
purchase
of
the
aforesaid building issued a notice to the
petitioner that since he has purchased the
building, in which the shop in dispute is
situated, the rent shall be paid by the
petitioner-tenant
to
the
respondentlandlord. The petitioner on receipt of the
notice sent the rent for the month of
December 1993, January and February
1994 which not accepted by the land lord.
Therefore, the tenant started depositing
the rent under Section 30 of U.P. Act No.
13 of 1972 (hereinafter referred to as the
Act). On 30th May 1995 the land lord filed
an application purporting to be an
application under Section 21 (1)(b) of the
Act for release of accommodation on the
ground that the building in which the shop
is situated is in a dilapidated condition
and
requires
demolition
and
reconstruction, therefore, the same should