# Om Prakash Yadav v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 316
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-21
- **Case number:** Writ A No. 31827 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-yadav-v-state-of-u-p-ors-50887
- **Pages:** 11

## Headnote

A. Service Law - UP Junior High School
(Payment of Salaries of Teachers and
Other
Employees)
Act,
1978
-
UP
Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service of Teachers) Rules, 1978 - Rules
9(A)(ii) and 10(5)(i)(a) - Payment of
salary - Post of Assistant Teacher -
Petitioner was duly selected, appointed
and given joining in 1996 - Appointment
was also approved twice - However, in
counter
affidavit,
the
District
Basic
Education Officer took the stand that
petitioner's
appointment
was
made
against
a
non-sanctioned
post
-
Permissibility - Held, the petitioner was
appointed
in
accordance
with
rules
against a sanctioned post way back in the
year 1996. The strength of teachers, at
the time, was obviously determined by the
District
Basic
Education
Officer
in
accordance
with
the
norms
then
prescribed,
before
he
permitted
the
vacancy to be advertised. The petitioner's
selection was scrutinised at all levels and
it is difficult to accept that the petitioner
would have been selected or appointed
against a non-sanctioned post - Right or
benefits already earned under the existing
rules
cannot
be
withdrawn
by
a
retrospective amendment of the Rules -
Yogendra Shrivastava's case relied upon.
(Para 26, 28, 30 and 34)

Writ petition allowed. (E-1)

List of Cases Cited :-

## Text

316 INDIAN LAW REPORTS ALLAHABAD SERIES

4. We have also expressed our
concern that these kinds of the cases are
only "certificate cases" to obtain a certificate of
dismissal from the Supreme Court to put a
quietus to the issue. The object is to save the skin
of officers who may be in default. We have also
recorded the irony of the situation where no
action is taken against the officers who sit on
these files and do nothing."
(emphasis supplied)

8. In the case of Majji Sannemma @
Sanyasirao vs. Reddy Sridevi and others 2021
SCC Online (SC) 1260 the Hon'ble Apex Court
quashed the order passed by the High Court,
where High Court has condoned delay of 1011
days.

9. In view of the law as discussed above,
we find that the explanation so offered in
paragraph 15 of the petition quoted above is not
satisfactory and accordingly present petition
stands dismissed on the ground of latches.
----------
(2024) 2 ILRA 316
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 31827 of 2014

Om Prakash Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Deepak K. Jaiswal, Sri Bhaiya Lal Yadav,
Sri Vijay Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Junior High School
(Payment of Salaries of Teachers and
Other
Employees)
Act,
1978
-
UP
Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service of Teachers) Rules, 1978 - Rules
9(A)(ii) and 10(5)(i)(a) - Payment of
salary - Post of Assistant Teacher -
Petitioner was duly selected, appointed
and given joining in 1996 - Appointment
was also approved twice - However, in
counter
affidavit,
the
District
Basic
Education Officer took the stand that
petitioner's
appointment
was
made
against
a
non-sanctioned
post
-
Permissibility - Held, the petitioner was
appointed
in
accordance
with
rules
against a sanctioned post way back in the
year 1996. The strength of teachers, at
the time, was obviously determined by the
District
Basic
Education
Officer
in
accordance
with
the
norms
then
prescribed,
before
he
permitted
the
vacancy to be advertised. The petitioner's
selection was scrutinised at all levels and
it is difficult to accept that the petitioner
would have been selected or appointed
against a non-sanctioned post - Right or
benefits already earned under the existing
rules
cannot
be
withdrawn
by
a
retrospective amendment of the Rules -
Yogendra Shrivastava's case relied upon.
(Para 26, 28, 30 and 34)

Writ petition allowed. (E-1)

List of Cases Cited :-

1. St. of M. P. & ors.Vs Yogendra Shrivastava;
(2010) 12 SCC 538

2. T.R. Kapur & ors.Vs St. of Har. & ors.; 1986
Supp SCC 584

(Delivered by Hon'ble J.J. Munir, J.)

The petitioner, Om Prakash Yadav,
appears to be a qualified and duly selected
Assistant Teacher, appointed with the Raja
Ram Sahab Lal Kisan Adarsh Junior High
School, Saraibeeka, Jaunpur way back on
04.09.1996, and, yet, for some mysterious
reason,
the
respondent-District
Basic
Education Officer, Jaunpur says that he is
2 All. Om Prakash Yadav Vs. State of U.P. & Ors.
317
not qualified, not validly selected or
appointed and, therefore, not entitled to
salary.

2. The petitioner has moved this
Court praying that a mandamus be issued to
the District Basic Education Officer,
Jaunpur
and
the
Management
to
adjust/confirm the petitioner on the vacant
post of an Assistant Teacher created with
the Institution aforesaid on the retirement
of one Ram Tawankal Patel and pay him
salary. In substance, the petitioner prays
that this Court do issue a writ of
mandamus, commanding these respondents
to pay him salary pursuant to his
appointment as an Assistant Teacher, made
strictly in accordance with law and duly
approved by the Education Authority.

3. Heard Mr. Vijay Kumar Singh,
learned Senior Advocate, assisted by Mr.
Bhaiya Lal Yadav, learned Counsel for
the petitioner, Mr. Raj Bihari, learned
Counsel
appearing
on
behalf
of
respondent no. 5 and Mr. Girijesh
Kumar Tripathi, learned Additional
Chief Standing Counsel appearing for
respondent nos. 1 to 4.

4. Raja Ram Sahab Lal Kisan Adarsh
Junior High School, Jaunpur is a
recognised and aided non-Government
Institution. It imparts education to both
boys and girls from Classes VI to VIII.
There are some 400 students reading in
this school, which shall hereinafter be
called 'the Institution'. The teachers
and other employees working in the
Institution are paid salary in accordance
with the provisions of the Uttar Pradesh
Junior
High
School
(Payment
of
Salaries
of
Teachers
and
Other
Employees) Act, 1978 (for short, 'the
Act of 1978').

5. The petitioner says that he is the
holder of Bachelor of Arts and Bachelor of
Education degrees. He, therefore, possesses
the minimum educational qualifications
required for appointment to the post of an
Assistant Teacher in a recognized and aided
Junior High School. The petitioner, when
selected and appointed, also fulfilled the
criterion of age. The procedure for
selection and appointment of an Assistant
Teacher
to
a
Junior
High
School,
recognised and aided by the State, is
governed by the Uttar Pradesh Recognised
Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 (for short, 'the
Service Rules').

6. According to the petitioner's case,
he was selected on 27.08.1996 by a duly
constituted
Selection
Committee
who
ranked him at serial no. 1 of the select list.
The petitioner's selection was approved by
the District Basic Education Officer,
Jaunpur vide order dated 29.08.1996 after
scrutiny of papers forwarded by the
Manager of the Institution. After the
Authority's approval, granted under Rule
10(5)(i)(a) of the Service Rules, the
petitioner was appointed by the Manager
vide
a
letter
of
appointment
dated
04.09.1996 to the post of an Assistant
Teacher on probation for a period of one
year. A copy of the letter of appointment
was forwarded by the Manager of the
Institution to the District Basic Education
Officer, Jaunpur on 06.09.1996. The
petitioner appeared before the Manager of
the Institution on 09.09.1996 to submit his
joining report and was permitted to join.
On 10.09.1996, the Manager of the
Institution directed the Headmaster to
permit the petitioner to join his duties. It is
the petitioner's case that ever since he
joined the Institution, he is regularly
318 INDIAN LAW REPORTS ALLAHABAD SERIES
teaching all subjects assigned to him from
Classes VI to VIII.

7. The grievance of the petitioner is
that he has not been paid salary, though he
has represented his case and on several
occasions, sought audience from the
respondents for the purpose.

8. Failing in his endeavours, the
petitioner instituted Civil Misc. Writ
Petition No. 7728 of 1998, impleading both
the District Basic Education Officer,
Jaunpur and the Committee of Management
of the Institution through its Manager as
party respondents to the aforesaid writ
petition. The last mentioned writ petition
was disposed of by this Court vide order
dated 09.03.1998, directing the Manager of
the Institution to consider and decide the
petitioner's representation
within
four
months from the date of production of a
certified copy of the order.

9. Subsequently, the last mentioned
order was modified on an application made
by the petitioner on 26.07.1999, whereby a
direction was issued to the District Basic
Education Officer, Jaunpur to decide the
petitioner's representation, instead of the
Manager of the Institution.

10. The petitioner submitted a copy of
the orders passed by this Court in Civil
Misc. Writ Petition No. 7728 of 1998,
along with an application to the District
Basic Education Officer, Jaunpur to act in
accordance with the order. The District
Basic Education Officer, in compliance
with this Court's order, decided the
petitioner's
representation
dated
02.09.2003, a copy of which is on record,
whereby, taking note of the sanctioned
strength of teachers and other matters
relating to the validity of the petitioner's
appointment, directed payment of his
salary.

11. Despite the aforesaid orders
passed by the District Basic Education
Officer, Jaunpur, which is in addition to the
initial approval granted by him to the
petitioner's selection, the petitioner was not
paid his salary for the post of Assistant
Teacher with the Institution. The petitioner
has brought on record photostat copies of
the
attendance
registers
annexed
as
Annexure No. 8 to the writ petition, and
also, Annexure No. S.A.-2 to the third
supplementary affidavit dated 10.04.2018.

12. It is the petitioner's case that upon
retirement of one Ram Tawankal Patel, an
Assistant Teacher with the Institution, the
post of an Assistant Teacher became vacant
and Ghanshyam Gupta, Prabhari Primary
Teacher, took temporary charge in place of
Ram Twankal Patel on 10.10.2012, in
compliance with an order of the District
Basic Education Officer, Jaunpur dated
10.10.2012. The signatures of the aforesaid
teacher were verified by the District Basic
Education
Officer,
Jaunpur
also
on
10.10.2012.

13. The petitioner has then relied on a
Government Order No. 1232/79-6-2012VIP-05/2012 dated 31.01.2013, issued by
the Principal Secretary to the Government
of U.P. in the Department of Basic
Education, which takes note of the fact that
on account of the Government order dated
30.04.2010, the payment of salaries of
some teachers and employees of private
aided Junior High Schools has been
obstructed and lays down guidelines in the
matter, how payment is to be made in such
cases. It speaks, amongst other things,
about those schools that have been brought
on grant-in-aid, and, how, after determining
2 All. Om Prakash Yadav Vs. State of U.P. & Ors.
319
their cadre strength, payment to teachers is
to be made. It also speaks about schools,
where posts are not sanctioned and teachers
and other employees are functioning in
excess of the sanctioned strength. About
these schools, it is said that wherever
salaries have not been paid after May 2010,
until
time
the
teachers
and
other
employees, in excess of the cadre strength,
are not adjusted against sanctioned posts,
vacancies caused by retirement and for
other reasons, are not to be filled up by new
appointments, but the existing teachers
adjusted. The petitioner thinks that his
rights can be dealt with under this
Government Order and seeks to claim its
benefit. Allusion to this issue would be
made during the course of this judgment. In
fact, dejected by constant failure to secure
the payment of his salary, the petitioner
seems to have thought that the Government
Order dated 31.01.2013 would come to his
rescue, and on that basis, prayed for relief
of adjustment against the vacancy caused
by Ram Tawankal Patel's retirement on
10.10.2012.

14. For reasons that we would
presently indicate, we think that the
petitioner need not ask for adjustment
against a post that has subsequently fallen
vacant and against which, of course, his
adjustment may be a debatable issue, if one
were to look to the Service Rules on one
hand and the Government Order dated
31.01.2013, on the other. This Court need
not go into that issue at all, nor the
petitioner depend for the enforcement of
his rights upon adjustment against the
vacancy caused by Ram Tawankal Patel's
retirement.

15. The procedure for selection and
appointment of an Assistant Teacher to a
private aided Junior High School is
governed by the Service Rules. These also
include
the
minimum
qualifications
prescribed. The relevant provisions of the
Service Rules, as these stood at the time of
the petitioner's selection and appointment,
read:

3. Appointment.--

(1) It shall be the responsibility of
the Management to fill a vacancy in the
post of Headmaster or assistant teacher as
the case may be, of a recognised school by
31st July every year.

(2) If any vacancy occurs during
an academic session, it shall be filled
within two months from the date of
occurrence of such vacancy.

4. Minimum qualification.--

(1) The minimum qualifications
for the post of assistant teacher of a
recognised school shall be Intermediate
Examination of the Board of High School
and Intermediate Education, Uttar Pradesh
or equivalent examination (with Hindi and
a teacher's training course recognised by
the State Government or the Board such as
Hindustani Teaching Certificate, Junior
Teaching
Certificate,
Basic
Teaching
Certificate, or Certificate of Training).

(2) xxxxx

5. Eligibility for appointment.--

No person shall be appointed as
Headmaster
or
assistant
teacher
in
Substantive capacity in any recognised
school, unless--

(a) he possesses the minimum
qualifications prescribed for such post;

(b) he is recommended for such
appointment by the Selection Committee.
6. xxxx

7. Advertisement of vacancy.--

(1) No vacancy shall be filled,
except after its advertisement in at least one
newspaper having adequate circulation in
the locality and the intimation of such
320 INDIAN LAW REPORTS ALLAHABAD SERIES
vacancy to the District Basic Education
Officer.

(2) In every advertisement and
initiation under clause (1), the management
shall give particulars as to the name of the
post, the minimum qualifications and age
limit, if any, prescribed for such post and
the last date for receipt of applications in
pursuance of such advertisement.

8. Age limit.--

The minimum age shall on the
first day of July of the academic year
following next after the year in which the
advertisement of the vacancy is made under
Rule 7 be--

(i) in relation to the post of
assistant teacher 18 years;

(ii) in relation to the post of
Headmaster 25 years.

9. Selection committee.--

For appointment of Headmaster
and Assistant Teacher in institutions other
than minority institutions and in the
minority institutions, the Management shall
constitute a Selection Committee as follows
:

A--Institutions
other
than
Minority institutions :

(i) For the post of Headmaster;

(1) manager;

(2) A nominee of District Basic
Education Officer;

(3)
A
nominee
of
the
Management;

(ii) For the post of Assistant
Teacher ;
(1) Manager;

(2) Headmaster of the recognised
school in which appointment is to be made
;

(3) A nominee of the District
Basic Education Officer;

B xxxx

10. Procedure for selection.--

(1) The Selection Committee
shall, after interviewing such candidates as
appear before it on a date to be fixed by it
in this behalf, of which due intimation shall
be given to all the candidates, prepare a list
containing as far as possible the names, in
order of preference, of three candidates
found to be suitable for appointment

(2) The list prepared under clause
(1) shall also contain particulars regarding
the date of birth, academic qualifications
and teaching experience of the candidates
and shall be signed by all the members of
the Selection Committee.

(3) The Selection Committee
shall, as soon as possible, forward such list,
together
with
the
minutes
of
the
proceedings of the Committee to the
management.

(4) The manager shall within one
week from the date of receipt of the papers
under clause (3) send a copy of the list to
the District Basic Education Officer.

(5) (i) If the District Basic
Education Officer is satisfied that--

(a) the candidates recommended
by the Selection Committee possess the
minimum qualification prescribed for the
post;

(b) the procedure laid down in
these rules for the selection of Headmaster
or assistant teacher, as the case may be, has
been followed he shall accord approval to
the
recommendations
made
by
the
Selection
Committee
and
shall
communicate
his
decision
to
the
management within two weeks from the
date of receipt of the papers under clause
(4).

(ii) If the District Basic Education
Officer is not satisfied as aforesaid, he shall
return the papers to the management with
the direction that the matter shall be
reconsidered by the Selection Committee.
2 All. Om Prakash Yadav Vs. State of U.P. & Ors.
321

(iii)
If
the
District
Basic
Education Officer does not communicate
his decision within one month from the
date of receipt of the papers under clause
(4), he shall be deemed to have accorded
approval to the recommendations made by
the Selection Committee.

11.
Appointment
by
the
management.--

(1) On receipt of communication
of approval or as the case may be, on the
expiry of the period of one month under
clause (iii) of sub-rule (5) of Rule 10, the
management shall, first offer appointment
to the candidate given the first preference
by the Selection Commines and on his
failure to join the post, to the candidate
next to him in the list prepared by the
Selection Committee and on the failure of
such candidate also, to the last candidate
specified in such list

(2) (a) The appointment letter
shall be sent under the signature of the
manager by registered post to the
selected candidate.

(b) The appointment letter
shall clearly specify the name of post,
the pay scale and the nature of
appointment, whether permanent or
temporary, and shall also specify that if
the candidate does not join within 15
days from the date of receipt of the
appointment letter his appointment shall
be cancelled.

(c) A copy of the appointment
letter shall also be sent to the District
Basic Education Officer.

12. Confirmation.-

(1) The appointment of every
Headmaster or assistant teacher, as the
case may be, of a recognised school, not
being an appointment under Rule 20
shall, in the first instance, be on
probation of one year, which may be
extended for a further period not exceeding
one year.

(2) If the service of Headmaster
or teacher of a recognised school are not
terminated before the expiry of the period
or the extended period of probation, as the
case may be, he shall be deemed to have
been automatically confirmed on the expiry
of such period.

16. The petitioner holds a degree of
Bachelor
of
Arts
and
Bachelor
of
Education, and, therefore, fulfilled the
minimum
educational
qualifications
mandated by Rule 4 of the Service Rules,
as these then stood. Rule 4, made it
requisite for a substantive appointment to
the post of an Assistant Teacher in any
recognized school that the candidate must
possess
the
minimum
prescribed
qualifications
for
the
post
and
is
recommended for such appointment by the
Selection Committee. There was also a
requirement that a vacancy in an Institution
governed by the rules could not be filled
up, except after it was advertised in at least
one newspaper having adequate circulation
in the locality and the intimation of such
vacancy to the District Basic Education
Officer.

17. The constitution of the Selection
Committee as prescribed by Rule 9(A)(ii)
of the Service Rules for selection to the
post of an Assistant Teacher is a threemember
Committee,
comprising
the
Manager of the Institution, the Headmaster
and a nominee of the District Basic
Education Officer. The other relevant
provisions would be alluded to a little later.

18. In the present case, what this
Court finds is that the Management of the
Institution sought permission of the District
Basic Education Officer to advertise the
322 INDIAN LAW REPORTS ALLAHABAD SERIES
post in question which was granted vide
memo no. बे-2/1742/96-97 नदिांक 01-8-96.
After this permission was granted, an
advertisement was published in some
newspaper,
which
the
District
Basic
Education Officer has acknowledged in his
order dated 20.03.2004. The interviews
were notified through this advertisement,
published on 04.08.1996, to be held on
27.08.1996 at 10.00 a.m. in the campus of
the Institution. It is difficult at this distance
of time to go into the name and the
circulation of the newspaper, because this
objection has not been raised at any point
of time by the Authority or anyone else,
earlier in the day, when a copy of the
newspaper would have been at hand.

19. By a letter no. बे-2/2314-15/96-97
नदिांक-21-8-96, the District Basic Education
Officer
nominated
the
Prathmik
Up
Vidyalaya Nirikshak Machhlishahr, Jaunpur
as the departmental observer to sit on the
Selection Committee. On the scheduled
date
of
interviews,
four
candidates
appeared, out of whom, the three-member
Selection
Committee
headed
by
the
Manager considered their candidature and
found the petitioner suitable.

20. Along with the supplementary
affidavit, proceedings of the Selection
Committee have been annexed as Annexure
No. S.A.-4. It shows that the Selection
Committee was headed by the Manager and
had, for its members, the Headmaster of the
Institution, besides Smt. Vimlashankar
Tripathi, Prathmik Up Vidyalaya Nirikshak,
Machhlishahr, Jaunpur as the District Basic
Education Officer's nominee.

21. The Selection Committee's
minutes are clear and recommend the
petitioner for appointment. There is an
appended chart to the minutes of the
Selection Committee, which shows the
criteria, following which, marks have been
awarded by the members of the Selection
Committee to the four candidates who
appeared.
They
have
been
awarded
interview marks on the basis of the marks
earned
in
the
High
School,
the
Intermediate, the Bachelor of Arts and the
Bachelor of Education examination. The
petitioner
secured 29 marks in the
interview and ranked above the other three
who secured lesser interview marks.

22. The proceedings of the Selection
Committee dated 27.08.1996 were placed
before the Committee of Management on
28.08.1996,
who
by
a
unanimous
resolution, selected the petitioner. The
proceedings
of
the
Committee
of
Management dated 28.08.1996 are annexed
to the supplementary affidavit as Annexure
No. S.A.-5. It is to be noted that the
Selection Committee has drawn up the list
of candidates interviewed in order of
preference and carries all particulars
postulated by Rule 10(2) of the Service
Rules. Recommendations of the Selection
Committee
were
accepted
by
the
Management, as already noticed, and
forwarded to the District Basic Education
Officer within one week, as envisaged by
Rule 10(4) of the Service Rules.

23. The Basic Education Officer, vide
order dated 29.08.1996, granted approval to
the recommendations of the Selection
Committee,
as
endorsed
by
the
Management in the petitioner's favour,
subject to the condition that if any material
fact has been suppressed, the approval
order shall stand automatically revoked. It
is on the foot of the said approval dated
29.08.1996, granted by the Basic Education
Officer that a letter of appointment dated
2 All. Om Prakash Yadav Vs. State of U.P. & Ors.
323
04.09.1996 was issued by the Manager of
the Institution, addressed to the petitioner
with a copy thereof endorsed to the Basic
Education Officer and the Headmaster of
the Institution. This letter of appointment is
on record as Annexure No. 1 to the writ
petition.

24. It must be noticed here that the
petitioner joined the post, as already noted,
on 10.09.1996, whereafter, he has been
discharging his duties. Since, the petitioner
was not paid his salary, he represented the
matter and ultimately moved this Court for
a direction to pay his salary. The writ
petition instituted by the petitioner, already
mentioned, was disposed of by an order
dated 09.08.1998, directing the Manager, in
the first instance, to decide the petitioner's
representation, preferably within a period
of four months of the date of receipt of a
copy of this Court's order.

25. Later on, vide order dated
26.07.1999, the order dated 09.03.1998 was
modified on an application, directing the
District Basic Education Officer to decide
the petitioner's representation within a
period of three months from the date of
making it, after hearing the Management.
The Basic Education Officer, by an order
dated 20.03.2004, examined the matter and
found the selection and appointment to be
one made in accordance with the Rules. It
was also noted that the Assistant Director
of Education (Basic), Vananasi Division,
Varanasi
had,
vide
his
letter
dated
28.08.1988, sanctioned twelve posts of
Assistant Teacher. The District Basic
Education Officer found that together with
the petitioner, there were twelve Assistant
Teachers functioning with the Institution,
out of whom nine alone were receiving
salary from the State Exchequer. In the
aforesaid
circumstances,
the
Basic
Education Officer directed that there was
no justification not to pay the petitioner's
salary and held him entitled. He granted
permission for payment of the petitioner's
salary disposing of the representation.

26. This Court is constrained to
observe that the petitioner's appointment is
apparently not some kind of a spurious one
that has sprung up from nowhere. It has
originated
with
the
Management
advertising the vacancy relating to an
apparently
sanctioned
post
and
the
procedure under the Service Rules has been
meticulously followed to select and appoint
the petitioner. The petitioner's appointment
has been twice approved. It was once
approved initially when the papers were
moved by the Management as required by
the Service Rules on 29.08.1996 with the
District Basic Education Officer passing an
order bearing letter no. बे-2/2396/96-97 of
that date; and later on, it was thoroughly
examined and again affirmed by the
District Basic Education Officer vide his
order dated 20.03.2004.

27. The order dated 20.03.2004 was
passed pursuant to a direction made by this
Court in a writ petition to consider the
petitioner's representation, as he was not
receiving salary despite an appointment
that was made apparently, following the
prescribed procedure against a sanctioned
post. The Management, in their counter
affidavit, have supported the petitioner's
selection and appointment.

28. In the counter affidavit filed on
behalf of respondent no. 4, that is to say,
the District Basic Education Officer,
Jaunpur, the stand taken is that the
petitioner's appointment was made against
a non-sanctioned post, without determining
the sanctioned strength. This was, later on,
324 INDIAN LAW REPORTS ALLAHABAD SERIES
determined by the Department, pursuant to
a Government Order dated 30.04.2010 and
the judgment of this Court in Writ A No.
45051 of 2010, Achhe Lal Mishra v. State
of U.P. and others, to be one post of
Headmaster and four posts of Assistant
Teacher, one Clerk and one Peon for each
Institution as the valid strength.

29. The eligibility qualification of the
petitioner has also been disputed without
saying how the petitioner is not eligible.
About the orders already made by the
District Basic Education Officer, it is just
said that the petitioner's appointment, if
approved de hors the rules by the District
Basic Education Officer, would not entitle
the
petitioner
to
salary. About
the
submission of the learned Counsel for the
petitioner that the petitioner may be
adjusted against a subsequently arising
vacancy, it is said that it is simply not
permissible.

30. This Court can only accept the last
contention of the respondents that a
vacancy subsequently arising may not be
available to the petitioner, but, as said
earlier, there is absolutely no reason to
think that the petitioner requires any of
those subsequently occurring vacancies to
support his appointment. The petitioner was
appointed in accordance with rules against
a sanctioned post way back in the year
1996. The strength of teachers, at the time,
was obviously determined by the District
Basic Education Officer in accordance with
the norms then prescribed, before he
permitted the vacancy to be advertised. The
petitioner's selection was scrutinised at all
levels and it is difficult to accept that the
petitioner would have been selected or
appointed against a non-sanctioned post,
with a nominee of the District Basic
Education Officer sitting on the Selection
Committee
that
was
constituted
in
accordance with the Service Rules.

31. The selection was apparently held
after due advertisement in accordance with
the Service Rules then in force and the
Selection Committee also drew up, apart
from the minutes, an evaluation sheet
conforming to the Rules, by which they
ranked
the
four
candidates
they
interviewed. All these papers went to the
District Basic Education Officer from the
Selection
Committee
through
the
Management
and
the
District
Basic
Education
Officer
scrutinised
the
petitioner's candidature as well as his
qualifications, before granting approval for
the payment of his salary borne on the State
exchequer.

32. The two orders of the District
Basic Education Officer granting approval,
and subsequently affirming it, dated
29.08.1996 and 20.03.2004 respectively,
have never been revoked by the District
Basic Education Officer or a higher
Authority in the Education Department. It
is difficult, therefore, to accept the
respondents' contention made in the most
cavalier fashion that approval, if any, to the
petitioner's appointment is non est. Also,
the contention that the petitioner was
appointed against a non-sanctioned post,
based on an order of the year 2010 passed
by this Court determining the sanctioned
strength and a Government Order issued on
its basis, cannot be accepted.

33. Between the years 1996 and 2010,
when
the
sanctioned
strength
was
determined in terms of an order of this
Court, subsisting appointments validly
made with the approval of competent
Authorities in accordance with Rules
cannot be undone, as it would unsettle
2 All. Om Prakash Yadav Vs. State of U.P. & Ors.
325
vested rights that have already accrued. The
determination of sanctioned strength for
teachers of Junior High School in the year
2010, even if regarded correct, cannot
retrospectively
be
applied
to
undo
concluded appointments of teachers, who
are functioning in the Institution after a
valid appointment.

34. Valid rights that have come to be
realized in favour of the beneficiary under a
particular rule cannot be taken away, going
by the settled principles, by an amendment
to the Rules made retrospectively. The
principle that right or benefits already
earned under the existing rules cannot be
withdrawn by a retrospective amendment
of the Rules finds eloquent statement in the
holding in State of Madhya Pradesh and
others v. Yogendra Shrivastava, (2010)
12 SCC 538, where it has been held:

"15. It is no doubt true that Rules
made under Article 309 can be made so as
to operate with retrospective effect. But it is
well settled that rights and benefits which
have already been earned or acquired under
the existing Rules cannot be taken away by
amending the Rules with retrospective
effect. (See N.C. Singhal v. Armed Forces
Medical Services [(1972) 4 SCC 765] ;
K.C. Arora v. State of Haryana [(1984) 3
SCC 281 : 1984 SCC (L&S) 520] and T.R.
Kapur v. State of Haryana [1986 Supp SCC
584 : (1987) 2 ATC 595] .) Therefore, it has
to be held that while the amendment, even
if it is to be considered as otherwise valid,
cannot affect the rights and benefits which
had accrued to the employees under the
unamended rules. The right to NPA @ 25%
of the pay having accrued to the
respondents under the unamended Rules, it
follows that respondent employees will be
entitled to non-practising allowance @
25% of their pay up to 20-5-2003."

35. The same principle has been
enunciated by the Supreme Court in T.R.
Kapur and others v. State of Haryana
and others, 1986 Supp SCC 584.

36. It is true that these principles have
been laid down in the context of rules
framed by the Governor under the proviso
to Article 309 of the Constitution and here,
we are concerned with what may be called,
in the worst case, a redetermination of the
sanctioned strength of teachers for aided
Junior
High
School
upon
a
proper
reckoning done under the orders of this
Court. If this then is the state of affairs,
appointments validly made according to the
understanding of the relevant rules at the
time when the petitioner was appointed,
including the sanctioned strength, cannot
be tested for its validity according to the
understanding of those rules or the
determination of the sanctioned strength
made years later after the petitioner has
already been appointed.

37. The mere fact that salary has not
been paid is not an index of the fact that the
appointment has not been validly made;
rather, it shows a deeply perpetuated
illegality,
where
two
orders
of
the
Competent Authority, entitled to approve an
appointment and bind the State exchequer
under the Service Rules, has been observed
in breach with non-payment of the
petitioner's salary.

38. In the passing, this Court may say
that the order of this Court dated
07.08.2010 passed in Writ A No. 45051 of
2010, Achhe Lal Mishra v. State of U.P. and
others, is hardly an order that actually
determines anything for the sanctioned
strength of teachers in a Junior High
School. It is just an interlocutory order and
it is dated 17.08.2010. The order dated
326 INDIAN LAW REPORTS ALLAHABAD SERIES
17.08.2010, passed in Writ A No. 45051 of
2010, reads:

"Today, Secretary, Basic Education,
Government of Uttar Pradesh, Sri Anil Sant is
present in Court and he has filed affidavit,
which is accepted and taken on record.

In the affidavit so filed, it has been
stated that the deponent has recently taken over
charge of the post in question, and has further
mentioned that detailed affidavit will be filed if
so required by this Court.

In the facts of the case, it is hereby
directed that full details be furnished, with
regard to sanctioned posts of teachers, actual
number of teachers functioning in recognised
and aided Institutions, in respect of district
Jaunpur, and the number of teachers who are
functioning under the orders of this Court.

List this case after six weeks,
showing the name of Sri K.S.Kushwaha,
Advocate, for respondents."

39. The aforesaid writ petition is still
pending, and there are no further orders of the
kind which may be said to hold that four posts
of Assistant Teacher alone would be there in a
Junior High School. There are decisions, no
doubt, of this Court speaking on the strength of
Government Orders prescribing the sanctioned
strength issued much later in the day, but,
as said earlier, those later determinations of
sanctioned strength cannot be carried back
into history, to judge the validity of
appointments made decades earlier, where
incumbents have been validly appointed to
the position of an Assistant Teacher in a
Junior High School, like the petitioner.
There is no reason or material to show that
the apparently valid appointment to the
post of an Assistant Teacher in the
Institution, made in favour of the petitioner,
does not entitle him to receive salary. There
is also evidence that he has constantly
taught throughout his tenure.

40. In the opinion of this Court, the
petitioner is, therefore, entitled to payment of
his salary under the Act of 1978, determined in
accordance with the rules, for the entire period
of time that the petitioner has been serving.

41. In the result, this petition succeeds
and shall stand allowed with costs. The
petitioner is entitled to receive salary as an
Assistant Teacher with the Institution from the
date of his appointment, together with all its
revisions, increments and accretions, by
whatever name called, all to be paid to the
petitioner within a period of two months from
the date of receipt of a copy of this judgment by
the District Basic Education Officer, Jaunpur.
The petitioner shall also be paid his current
salary, month by month, like any other Assistant
Teacher.

42. Let this order be communicated to the
District Basic Education Officer, Jaunpur by
the Registrar (Compliance).
----------
(2024) 2 ILRA 326
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 67182 of 2014

Smt. Kalyani Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amar Nath Tiwari, Sri Ramendra Nath
Tiwari

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment to
Services (Determination of Date of Birth)
Rules, 1974 - Rule 2 - Date of birth,