# Pooran Chandra Jain v. The State of U.P. and others

- **Citation:** (2007) 1 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-14
- **Case number:** Civil Misc. Writ Petition No. 49253 of 2006
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pooran-chandra-jain-v-the-state-of-u-p-and-others-40873
- **Pages:** 7

## Headnote

Sri R.P. Dubey
Sri Ravi Ranjan
Sri P.S. Baghel
Sri Kailash Nath Singh
S.C.

U.P.
Secondary
Education
Service
Selection
Board-Section-18-Ad-hoc
appointment till the regular selections
made-whether the joining of regular
selected candidate can be resisted by
such adhoc-appointee? Held-'No'-such
adhoc appointee has to give way to the
regular selected candidate.

Held: Para 21

From the aforesaid, it is apparent that
petitioner has a prima facie case in his
favour, an ad hoc appointee (who has
been appointed by an Authority having
no
jurisdiction
to
offer
such
300 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
appointment) must give way to the
regularly selected candidate.
The petitioner, is therefore, entitled to
following interim order:

## Text

1 All] Pooran Chandra Jain V. The State of U.P. and others
299
would not mean that the authority,
empowered to operate the said Article,
has to omit to consider the aforesaid
considerations, before he issues an order
of reduction of pension in respect of an
employee. These two considerations are
inherent in the said Article and without
taking these two considerations implicit in
the Article, the Article itself would
become arbitrary and violative of Article
14 of the Constitution. In order to make
this
Article 470(b)
workable it is
necessary
that
unfettered
discretion
conferred by this Article or an authority is
exercised within the limits of law and
satisfaction about the service of an
employee
not
being
satisfactory
thoroughly is assumed on the basis of
evidence and before that evidence is acted
upon, employee, likely to be affected by
the order in that section is given
opportunity of being heard. These are the
rudimentary requirements which are to be
followed before the discretion under
Section 470(b) is exercised by any
authority."

12. A perusal of the entire order
impugned in the writ petition shows that
the appointing authority nowhere has
mentioned its satisfaction that the service
of the petitioner was not thoroughly
satisfactory. Therefore, it is evident from
the entire facts, circumstances and perusal
of the record that though the appointing
authority has mentioned and referred to
Article 470(b) of CSR in order to pass the
impugned order but in fact has sought to
exercise powers under Article 351-A
without conforming to the conditions of
those provisions. The orders impugned in
the writ petition are thus ex-facie
unsustainable either under Article 470(b)
or 351-A of CSR.

13. In the result, the writ petition
succeeds and is allowed. The impugned
orders are quashed and it is declared that
the petitioner shall be entitled for all
consequential benefit. There shall be no
order as to costs.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2006

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 49253 of 2006

Ishwar Chand

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri H.P. Singh
Sri Amarendra Pratap Singh

Counsel for the Respondents:
Sri R.P. Dubey
Sri Ravi Ranjan
Sri P.S. Baghel
Sri Kailash Nath Singh
S.C.

U.P.
Secondary
Education
Service
Selection
Board-Section-18-Ad-hoc
appointment till the regular selections
made-whether the joining of regular
selected candidate can be resisted by
such adhoc-appointee? Held-'No'-such
adhoc appointee has to give way to the
regular selected candidate.

Held: Para 21

From the aforesaid, it is apparent that
petitioner has a prima facie case in his
favour, an ad hoc appointee (who has
been appointed by an Authority having
no
jurisdiction
to
offer
such
300 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
appointment) must give way to the
regularly selected candidate.
The petitioner, is therefore, entitled to
following interim order:

(Delivered by Hon'ble Arun Tandon, J.)

1.

Learned
Standing
Counsel
represents respondent nos. 1,3 and 4. Sri
R.P. Dubey, Advocate has accepted notice
on behalf of respondent no.2 and Sri P.S.
Baghel, Advocate has accepted notice on
behalf of respondent no.6.

2. Issue notice to respondent no.5
fixing 14th December, 2006 as the date for
appearance.

Petitioner to take steps by 4th
December, 2006.

3. All the respondents may file
counter affidavit by the next date fixed.

4. Since serious legal and factual
issues have been raised in respect of the
disposal of the interim application filed
along with this writ petition, this Court
feels it proper to record reasons in support
of the order to be passed on the interim
application.

5. Petitioner Ishwar Chand, who has
been selected for the post of Lecturer in
subject of Psychology in Baba Barua Das
Inter
College,
Paruliya
Ashram,
Ambedkar Nagar by the U.P. Secondary
Education Services Selection Board at
Allahabad, has filed this petition for a writ
of
mandamus
commanding
the
respondents to appoint the petitioner
accordingly. An application for interim
direction has also been filed.

6. This appointment of petitioner is
objected to by respondent no.5, Rajendra
Prasad Verma who claims to have been
appointed on Ad-hoc basis against the
same vacancy of Lecturer (Psychology)
by the Committee of Management of the
institution on 31st August, 1998.

7. On specific query being made to
Sri
P.S.
Baghel,
who
represents
respondent no.6, namely, Sri Rajendra
Prasad Verma, about statutory provisions
under which he has been offered ad-hoc
appointment
by
Committee
of
Management,
learned
counsel
for
respondent no.6 has refused to answer the
same, and. has taken a stand, that this
Court has no jurisdiction to enter into the
aforesaid dispute, inasmuch as:

(a) two writ petitions have been filed
by respondent no.6 before the Lucknow
Bench of this Court being Writ Petition
No. 64B2 (8/8) of 1999 and Writ Petition
No. 3920 (S/S) of 2006. In the first writ
petition an interim order has been granted
by the Lucknow Bench of this Court on
17th December, 1999 while in second writ
petition an another interim order has been
granted by the Lucknow Bench of this
Court on 3rd May, 2006.
(b) the institution in respect whereof
the petitioner claims appointment and the
respondent no.6 is already working on ad
hoc basis is situate within the territorial
jurisdiction of Lucknow Bench.

8. For the purposes of adjudication
upon the aforesaid objections raised by
Sri P.S. Baghel, learned counsel for
respondent no.6 it would be necessary to
reproduce the relevant facts, as are
admitted to respondent no.6. In paragraph
nos. 3,4, 7 and 9 of his writ petition no.
6482 (S/S) of 1999 (hereinafter referred to
as the first writ petition) filed before the
1 All] Ishwar Chand V. State of U.P. and others
301
Lucknow Bench of this Court, it has been
stated as follows:

"3. That the petitioner was initially
appointed on the post of Psychology
lecturer on 31-8-1998 in Baba Barua Das
Inter College, Paruliya Ashram, District
Ambedkar Nagar (hereinafter mentioned
as College) on adhoc basis against the
sanctioned post. The copy of appointment
letter dated 31-8-1998 is being annexed
herewith as ANNEXURE NO.1 to this
writ petition.
4. That the petitioner joined on 1-91998 in pursuance of appointment letter in
the College on the post of lecturer of
Psychology and since then he has been
continuously working in the College with
good and efficient servicer. Nothing
adverse ever has been communicated
against the petitioner. The copy of the
joining letter dated 1-9-1998 is being
annexed herewith as ANNEXURE NO.2
to this writ petition.
7. That the post of lecturer of the
Psychology was occurred due to the death
of Shiv Shanker Upadhyay regular
lecturer of College on 152-1998. The
work and the post is available. The
petitioner has been appointed against the
sanctioned and duly created post. The
petitioner is entitled for payment of salary
under the provision of Salary Act, 1971.
9. That the Selection Committee was
duly constituted and total ten candidates
had participated in the interview for want
of selection as per the advertisement and
the petitioner has been awarded the
highest quality marks and he has been
selected
and
recommended
as
first
candidate.
The
Selection
Committee
recommended the name of the petitioner
for want of appointment on the post of
lecturer of Psychology and in pursuance
of the recommendation of the Committee
of Management the Manager of College
issued appointment letter to the petitioner
and the Principal of College provided the
joining to the petitioner. The copy of the
chart of quality points is being annexed
herewith as the ANNEXURE NO.5 to this
writ petition."

9. It may be recorded that in writ
petition no. 6482 (S/S) of 1999 an interim
order has been granted by the Lucknow
Bench of this Court dated 17th December,
1999 in favour of respondent no.6, which
reads as follows:

"In the meantime the opposite parties
shall allow the petitioner to draw the
salary of a lecturer as, admissible under
rules if he is a duly appointed Lecturer in
accordance
with
the
prescribed
regulations until a regularly selected
candidate is available."

10. Respondent no.6 initiated
contempt
proceedings
before
the
Lucknow Bench of this Court being Crl.
Misc. Case No. 1338 (C) of 2000, for
enforcing the said interim order wherein
following order was passed by the
Lucknow Bench of this Court on 10th
January, 2001:

"Learned standing counsel appearing
on behalf of the opposite parties requests
for three weeks' time to file counter
affidavit. The prayer is granted. List on
19.2.2001. The opposite parties are
directed to ensure the compliance of the
court's order, if appointments similar to
that of the petitioner's have been given
effect to.

So far as the subsequent writ petition
being Writ Petition No. 3920 (S/S) of
2006 filed before the Lucknow Bench of
302 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
this Court is concerned (hereinafter
referred to as the second writ petition),
suffice it to record that this second writ
petition is dependent upon the first writ
petition filed in the year 1999, reference
paragraph nos. 6,7,8,9 and 10 of the
second writ petition which read as
follows:
"6. That the petitioner was appointed
on the post of Lecturer (Psychology) on
31.8.98 by the selection committee
constituted
by
the
Committee
of
Management after due process against the
sanctioned and vacant post. A Photocopy
of the appointment letter dated 31.8.98 is
being annexed herewith as Annexure
No.2 to this writ petition.
It is also relevant to mention here
that
post
of
Lecturer
(Psychology)
occurred on 15.2.98 due to death of Sri
Shiv
Shankar
Upadhyay
who
was
working
on
the
post
of
Lecturer
(Sociology).
7. That
in
respect
of
the
appointment letter dated 31 .8.98 the
petitioner joined his duty on the post of
Lecturer (Psychology) on 31.8.98 and
since the date of joining the petitioner is
discharging his duties on the aforesaid
post with the full satisfaction of the
authorities concerned. A Photocopy of the
joining letter dated 31.8.98 is being
annexed herewith as Annexure No.3 to
this writ petition.
8. That on 21.12.98, the Committee
of Management submitted details in
respect of the financial approval in favour
of the petitioner but District Inspector of
Schools, Ambedkar Nagar but the District
Inspector of Schools neither approved nor
disapproved the appointment of the
petitioner.
9. That feeling aggrieved due to
non payment of salary. the petitioner filed
writ petition bearing No. 6482 (S8) of
1999 before this Hon'ble Court and this
Hon'ble Court after considering all the
facts and circumstances pleased to pass an
order directing the Opposite Parties to pay
the salary tot he petitioner for the post of
Lecturer (Psychology).
The Photocopy of the order dated
17.12.99 passed by this Hon'ble Court, is
being annexed herewith as Annexure
No.4 to this writ petition.
10. That in compliance of the order
dated 17. 12.99 passed by this Hon'ble
Court, the District Inspector of Schools,
Ambedkar Nagar released the salary in
favour of the petitioner and since then the
petitioner is getting salary for the post of
Lecturer (Psychology) and is discharging
his duties on the post of Lecturer
(Psychology). A Photocopy of the order
dated 14.1.03 passed by the District
Inspector of Schools, is being annexed
herewith as Annexure No.5 to this writ
petition."

11. In writ petition no. 3920 (8/8) of
2006 an interim order has also been
granted by the Lucknow Bench of this
Court dated 3rd May, 2006 in favour of
respondent no.6, which reads as follows:

"Heard
Sri
Mahendra
Singh
Rathore,
learned
counsel
for
the
petitioner and the learned Chief Standing
Counsel for opposite parties no. 1 to 3.
Notice on behalf of opposite party no.4
has been accepted by Sri H.S. Jain.
Issue notice to opposite parties no. 5
and 6.
Let the counter affidavit be filed by
the opposite parties within a period of six
weeks and the petitioner may file
rejoinder affidavit within two weeks
thereafter.
List in the second week of July, 2006
for hearing/admission.
1 All] Ishwar Chand V. State of U.P. and others
303
The grievance of the petitioner is that
he
was
appointed
as
Lecturer
(Psychology) in Baba Barua Das Inter
College, Paruliya Ashram, Ambedkar
Nagar on 31.8.1998 and is discharging
duties, functions and responsibilities of
the post.
The grievance of the petitioner is that
opposite party no. 6, Ishwar Chand has
been appointed on the post held by the
petitioner. The learned counsel for the
petitioner has further submitted that the
opposite party no.6 has not joined the
post and the petitioner is still working as
Lecturer (Psychology) in the institution.
In view of above, it is provided that
the petitioner shall be allowed to continue
on the post of Lecturer (Psychology) in
Baba Barua Das Inter College, Paruliya
Ashram, Ambedkar Nagar, till further
orders of this Court."

12. From the aforesaid facts it is
admitted on record that respondent no.6
was appointed on ad hoc basis against a
substantive vacancy which was caused in
the institution due to death of the
permanent
Lecturer,
namely,
Shiv
Shanker on 15th February, 1998. On the
relevant date, on which substantive
vacancy was caused in the recognised
Intermediate College, there was no
authority
with
the
Committee
of
Management of the institution to offer any
ad-hoc appointment. Power to make adhoc appointments against substantive
vacancies was with the Deputy Director
of Education under Rule 15 of the U.P.
Secondary Education Services Selection
Board Rules, 1995 and subsequent to it
under the U.P. Secondary Education
Services Selection Board Rules, 1998.
Rules 15 of 1995 Rules, which is more or
less para mataria to Rule 15 of Rules of
1998 reads as follows:

15.
Procedure
for
ad
hoc
appointment by direct recruitment.----(1)
(a) Where ad hoc appointment of the
teachers in respect of the vacancies to be
filled in by direct recruitment are to be
made under section 18 of the Act, the
Deputy Director shall advertise the
vacancies subjectwise, for lecturers grade
and groupwise for trained graduates
(L.T.) grade, along with the number of
vacancies
to
be
reserved
for
the
candidates belonging to the Scheduled
Castes, Scheduled Tribes and Other
Backward Classes of citizens in at least
two newspapers one of which having wide
circulation in the district and the other in
the State, and invite applications for ad
hoc appointment in the pro forma given in
Appendix 'F'. Such advertisement shall,
inter
alia,
mention
the
pay
and
allowances admissible to the posts,
minimum academic qualifications for
appointment and such other things as may
be considered necessary. The candidates
shall be required to give the choice of not
more than three districts in order of
preference, where, if selected, he may
wish to be appointed. Where a candidate
wishes to be considered for any particular
district and for no other district, he may
mention the fact in his application."

13. It is thus apparent from the
relevant facts admitted that the ad hoc
appointment claimed by respondent no.6
is
de
hors
the
aforesaid
statutory
provisions, made by an Authority having
no jurisdiction to do so. It has to be
treated as nullity in view of Section-16 of
the U. P. Secondary Education Services
Selection Board Act, 1982, which reads as
follows:
"16. Appointment to be made only
on the recommendation of the Board.-
304 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(1) Notwithstanding anything to the
contrary contained in the Intermediate
Education Act, 1921 or the regulations
made thereunder, but subject to the
provisions of sections 12,18,21-B, 21-C,
21-D, 33,33-A, 33-B, 33-C, 33-D and 33F, every appointment of a teacher shall,
on or after the date of commencement of
the Uttar Pradesh Secondary Education
Services Selection Board (Amendment)
Act, 2001 be made by the management
only on the recommendation of the Board:
Provided that in respect of retrenched
employees, the provisions of section 16EE of the Intermediate Education Act,
1921 shall mutatis mutandis apply:
Provided further that the appointment
of a teacher by transfer from one
institution to another may be made in
accordance with regulations made under
clause (c) of sub-section (2) of section 16G of the Intermediate Education Act,
1921:
Provided also that the dependent of a
teacher or other employee of an institution
dying in harness who possesses the
qualifications
prescribed
under
the
Intermediate Education Act, 1921 may be
appointed
as
teacher
in
Trained
Graduates' Grade in accordance with
regulations made under sub-section 94) of
section 9 of the said Act.
(2)
Any
appointment
made
in
contravention of the provisions of subsection (1) shall be void."

14. The interim order passed by the
Lucknow Bench of this Court, in the first
writ petition in favour of respondent no.6
permitted him to continue as Lecturer
(Psychology) provided that he was
appointed in accordance with law, only
for the period till the regularly selected
candidate becomes available.

15. It is also apparent that the
Lucknow Bench of this Court provided
that respondent no.6 shall be paid salary
only if he has been validly appointed in
accordance with the rules/regulations
applicable and only till regularly selected
candidate becomes available.
16. The interim order passed in
second writ petition fails to take note of
the interim order passed in first writ
petition as also of the fact that respondent
no.6 infact claimed ad hoc appointment
only and such ad hoc appointees cannot in
any way obstruct the appointment of
regularly selected candidates, inasmuch as
their appointment itself has been made in
the contingency till regularly selected
candidate is appointed. Such ad hoc
appointments have a contingent right to
continue only till the period regularly
selected candidate becomes available.
Substantial justice requires that the
regularly selected candidate should not be
asked to wait at the fence while the ad
hoc appointee like respondent no. 6, is
permitted to continue in the institution.

17. Learned counsel for respondent
no.6 has not answered the query made by
this Court, the reason is obvious. Learned
counsel knows that there is no provision
under which the ad hoc appointment of
respondent no.6 can be sustained, nor
could he refer to any statutory provisions
under which ad hoc appointment against
the substantive vacancy in the year 1998,
could
be
made
the
Committee
of
Management of the institution. He has
succeeded in misleading the authorities
for obtaining payment of salary, despite
the specific directions of the Lucknow
Bench of this Court under order dated 17th
December, 1999 for which appropriate
action may have to be recommended
against the District Inspector of Schools,
1 All] Ishwar Chand V. State of U.P. and others
305
who has released the salary in favour of
respondent no.6 at the time of final
disposal of the writ petition.

18. As noticed herein above,
respondent no.6 has not been appointed in
accordance with the statutory provisions
applicable and therefore, also he has no
legal right to object to the legal
appointment of the petitioner who has
been
selected
in
accordance
with
Statutory provisions.

19. With regard to the second
objection this Court has no hesitation to
record
that
this
Court
has
every
jurisdiction to entertain the present writ
petition, which has been filed for ensuring
appointment being offered to a candidate
selected by the U.P. Secondary Education
Services Selection Board, at Allahabad, as
part of cause of action has arisen at
Allahabad.

20. In such circumstances both the
objections raised by learned counsel for
respondent n06 are hereby rejected.

21. From the aforesaid, it is apparent
that petitioner has a prima facie case in
his favour, an ad hoc appointee (who has
been appointed by an Authority having no
jurisdiction to offer such appointment)
must give way to the regularly selected
candidate.
The petitioner, is therefore, entitled to
following interim order:

22. The District Inspector of
Schools, Ambedkar Nagar who is present
in the Court today is directed to ensure
that the petitioner is permitted to join in
the institution as Lecturer (Psychology)
within a week from the date a certified
copy of this order is filed before him. This
appointment shall be subject to the final
orders to be passed in this petition.
Put up on 14th December, 2006 as
unlisted matter.

23. In order to avoid conflicting
judgments being passed in the writ
petitions filed by respondent no. 6
namely, Rajendra Prasad Verma before
the Lucknow Bench of this Court, being
Writ Petition No. 6482 (S/S) of 1999 and
Writ Petition No. 3920 (S/S) of 2006 and
the present writ petition filed before this
Court, it is desirable that The Hon'ble The
Chief Justice may consider the transfer of
the writ petitions filed before the
Lucknow Bench of this Court being Writ
Petition No. 6482 (S/S) of 1999 and Writ
Petition No. 3920 (S/S) of 2006 to the
Allahabad High Court and the same may
be tagged along with this writ petition.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2006

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.K. MISRA, J.

Habeas Corpus Writ Petition No.66525 of
2005
Connected with
Habeas Corpus Writ Petition No.66528 of
2005

Pappu

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
I.M. Khan

Counsel for the Respondents:
Sri K.C. Sinha Addl. S.G. of India