# Pujari Yadav Plaintiff v. Ram Briksha Yadav Defendant

- **Citation:** (2007) 1 ILRA 271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-10-09
- **Case number:** Second Appeal No. 1291 of 1981
- **Bench:** Yatindra Singh, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pujari-yadav-plaintiff-v-ram-briksha-yadav-defendant-40857
- **Pages:** 11

## Headnote

U.P. Intermediate Education Act, 1921Regulation
16-G-jurisdiction
of
civil
court-termination of class 4th employee
of recognized school imparting education
upto class 10-shall for declaration and
injunction-before civil court-held proper.

Held: Para 17

We would have, either finally decided
this point or if necessary referred it to
the larger bench for decision, however,
in view of our finding on other points, it
is not necessary to do so. Even if it is
taken that these two categories as
mentioned above are added, no relief
can be granted to the plaintiff-appellant.

(B) Inter Mediate Education Act, 1921chapter III Regulation 31-Termination of
Class
4th
employee
of
recognized
institution-imparting
education
upto
class
10-whether
prior
approval
is
necessary? Held- 'No'.

Held: Para 28

In view of above we hold that after
amendment of Regulation 31 by the
1975 Notification, it is not necessary to
take prior approval of the Inspector
before terminating the services of a
Class-IV employee.
Case law discussed:
2006 ESC-1965
1993 (2) UPLBEC-1402
1998 (1) ESC-403
AIR 1977 Alld.-977

## Text

1 All] Pujari Yadav V. Ram Briksh Yadav
271
proceedings must be re-commenced from
the beginning of the trial, summon the
witnesses once again and examine them
and cross-examine them in order to reach
the stage where it had reached earlier. If
the witnesses already examined are quite
a large in number the Court must
seriously consider whether the objects
sought to be achieved by such exercise is
worth wasting the whole labour already
undertaken. Unless the Court is hopeful
that there is reasonable prospect of the
case as against the newly brought
accused ending in conviction of the
offence concerned we would say that the
Court should refrain from adopting such
a course of action."

10. Thus from the above law laid
down by the apex court it is evident that
no body should be summoned under
section 319 Cr.P.C. only to face the trial.
There should be possibility of his
conviction as well. Power under section
319 Cr.P.C. is an extraordinary power
given to the court to be exercised ex-
debito justice. It should be exercised
sparingly only when it is required most.
Summoning any body as an accused at the
stage of trial after the evidence had started
in the case should be resorted to only
when there is reasonable possibility of his
conviction. Asking some body to fact the
ordeal of trial only to be acquitted is not
the law but is his harassment.

11. On the facts of the present case I
find that revisionist no.1 is an unmarried
girl
who
is
handicapped
and
has
deformity in her leg. Her involvement in
the offence is a remote possibility. So far
as two other revisionists are concerned
they are a married couple resident of
different places. Merely because they are
relatives of the husband they should not
be
harassed
without
any
specific
allegation against them. They have got
two infant daughters and it very unlikely
that they will indulge in the demand of
dowry and torture. There is no specific
allegation against them and their names
are mentioned as a matter of course in the
statements, which in my view was not
sufficient to anoint any charge on them.

Resultantly
in
view
of
the
discussions made above I find force in
this revision, which deserves to be
allowed.

12. This revision is allowed. The
impugned order dated 15.7.2006, under
section 319 Cr.P.C., passed by Additional
Chief Judicial Magistrate, Court No. 1,
Mathura in criminal case no. 1312 of
2005 State versus Gajendra Pal Singh
And
Others
summoning
the
three
revisionists- Km. Mona, Smt Poonam and
Balvir Singh is here by set aside. The trial
court is directed to proceed with the case
against rest of the accused and conclude
the same if possible within five months.
Revision allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2006

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE RAN VIJAI SINGH, J.

Second Appeal No. 1291 of 1981

Pujari Yadav ...Plaintiff-Respondent-
Appellant
Versus
Ram Briksha Yadav ...Defendant-
Appellant-Respondent

Counsel for the Appellant:
Sri N.P. Mishra
272 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Sri Awadhesh Rai
Sri D.N. Shukla
Sri Vimal Kumar
Sri Ganga Prasad
Sri Saroj Kumar Singh
Sri D.B. Yadav

Counsel for the Respondent:
Sri Faujdar Rai
Sri C.K. Rai
Sri V.K. Singh

U.P. Intermediate Education Act, 1921Regulation
16-G-jurisdiction
of
civil
court-termination of class 4th employee
of recognized school imparting education
upto class 10-shall for declaration and
injunction-before civil court-held proper.

Held: Para 17

We would have, either finally decided
this point or if necessary referred it to
the larger bench for decision, however,
in view of our finding on other points, it
is not necessary to do so. Even if it is
taken that these two categories as
mentioned above are added, no relief
can be granted to the plaintiff-appellant.

(B) Inter Mediate Education Act, 1921chapter III Regulation 31-Termination of
Class
4th
employee
of
recognized
institution-imparting
education
upto
class
10-whether
prior
approval
is
necessary? Held- 'No'.

Held: Para 28

In view of above we hold that after
amendment of Regulation 31 by the
1975 Notification, it is not necessary to
take prior approval of the Inspector
before terminating the services of a
Class-IV employee.
Case law discussed:
2006 ESC-1965
1993 (2) UPLBEC-1402
1998 (1) ESC-403
AIR 1977 Alld.-977

(Delivered by Hon'ble Yatindra Singh, J.)

1. The main question involved in
this appeal is when can a contract of
personal service be enforced in a civil
suit.

THE FACTS

2. There is a school known as Shri
Shanker Uchchtar Madhyamik Vidyalaya,
Pargana Ghosi, district Azamgarh (the
School). This school imparts education up
to 10th class and is recognized under
Intermediate Education Act 1921 (the
Act); it is also given grant-in-aid by the
State Government in respect of salaries of
its teachers and non-teaching staff.

3. The plaintiff-appellant was
appointed as Class IV employee in the
School on 1.3.1976 and was subsequently
confirmed. There was misappropriation of
Rs.1400/- from the Boys' Fund. It was
alleged that the plaintiff-appellant had
forged the signatures of the Principal and
had taken out the money. The defendantrespondent was the officiating principal of
the school. He called an explanation of
the
plaintiff-appellant
on
11.5.1977.
Initially a reply was submitted on
11.5.1977.
Thereafter
the
plaintiffappellant admitted his guilt on 15.5.1977.
Subsequently,
his
services
were
terminated on 12.6.1977.

4. The plaintiff-appellant filed the
original suit no. 259 of 1977 against the
officiating
principle,
who
is
sole
defendant-respondent in the suit, for
declaration that:

•
The
termination
order
dated
12.6.1977 was illegal, null and
void; and
1 All] Pujari Yadav V. Ram Briksh Yadav
273
•
An
injunction
be
issued
restraining
the
defendantrespondent
from
interfering/stopping the plaintiffappellant from functioning as the
Class IV employee of the School.

The defendant-respondent filed written
statement denying the allegations of the
suit.

5. The trial court decreed the suit on
16.5.1979. The court restrained the
defendant respondent for interfering with
the service of the plaintiff-appellant. The
court while decreeing the suit recorded
the following findings:

•
The Civil Court has jurisdiction
to decide the suit. This was held
earlier on 24.8.1978.
•
The defendant-respondent could
not be officiating Principal of the
School.
•
The principle of natural justice
were not followed in conducting
the enquiry.

6. The defendant-respondent filed an
appeal. This appeal was allowed on
12.11.1980 and the suit was dismissed.
The
appellate
court
recorded
the
following findings:

•
It can not be said that the
defendant-respondent was not the
officiating
principal
of
the
School.
•
There
was
no
illegality
in
terminating the services of the
plaintiff-appellant.

7. Aggrieved by the order of the
appellate court, the plaintiff-appellant has
filed the present second appeal. The
Single
Judge
by
his
order
dated
3.12.1999,
referred the question of
maintainability of the suit to the larger
bench by observing that:

'In this way I find that there is a
serious controversy over the aforesaid
question regarding maintainability or the
suit in Civil Court. In my humble opinion
the matter requires consideration by a
larger bench and therefore, the entire
record be remitted before the Bench
nominated by the Hon'ble Chief Justice.
Lay before the Hon'ble Chief Justice for
orders.'

This is how the case has come up
before us.

POINTS FOR DETERMINATION

8. It was agreed by the parties that
instead
of
answering
the
referred
question, the entire appeal may be
decided. We have heard Sri DB Yadav,
counsel for the plaintiff- appellant and Sri
CK Rai, counsel for the defendantrespondent, and Sri VK Singh who was
appointed as friend of the Court. The
following points are to be decided in the
appeal:

(i) Whether the suit is maintainable in
the Civil Court?
(ii) Whether the prior approval of DIOS
was necessary before terminating the
services of the plaintiff-appellant?
(iii) Whether on the finding recorded
by the first appellate court, the plaintiff is
entitled to any relief?
(iv) Whether any relief can be granted to
plaintiff-appellant in absence of
Committee
of
Management,
the
DIOS and the State of UP?
274 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
POINT NO. 1: THREE EXCEPTIONS
SHOULD BE EXTENDED.

9. The counsel for the defendant
respondent submitted that the suit is not
maintainable as,

•
The suit is for declaration that
termination order is illegal and
for
permanent
injunction
restraining
the
defendantrespondent from interfering his
right to function as Class-IV
employee;
•
It is essentially a suit for specific
performance of personal service;
and
•
The right can neither be enforced
in a suit, nor such a suit can be
decreed.

10. The counsel for the defendantrespondent also cited the decision in
Executive Committee of Vaish Degree
College, Shamli and others vs. Lakshmi
Narain and others: AIR 1976 SC 888 (the
Vaish College case) decided by the
Supreme Court and brought to our notice
the
following
observations
of
the
Supreme Court:

'On consideration of the authorities
mentioned above, it is, therefore, clear
that a contract of personal service cannot
ordinarily be specifically enforced and a
Court normally would not give a
declaration that the contract subsists and
the employee, even after having been
removed from service can be deemed to
be in service against the will and consent
of the employer.

This rule, however, is subject to three
well-recognised exceptions-

(i) where a public servant is sought to
be
removed
from
service
in
contravention of the provisions of
Article 311 of the Constitution of
India;
(ii) where a worker is sought to be
reinstated on being dismissed under
the Industrial Law; and
(iii) where a statutory body acts in breach
or
violation
of
the
mandatory
provisions of the statute.'

This case has also been followed by a
division bench of our court reported in
Agarwal Digambar Jain Samiti Vs. Badri
Prasad Srivastava (the Agrawal Digambar
case). According to the counsel for
defendant-respondent, the case in hand
does not fall in any of the aforesaid three
categories
and
as
such
it
is
not
maintainable.

11. It is correct that the Supreme
Court in the Vaish College case has laid
down the three categories where a suit for
contract of personal service has been held
to be maintainable and this case is not
covered in that but, are these three
categories exhaustive? Was it necessary
to provide exhaustive list of categories in
that case? Shouldn't the observations be
confined to the facts of that case?

12. The facts of the Vaish College
case as found by the Supreme Court were
as follows:

(i) The College was being managed by a
society which was registered under
the Societies Registration Act. It was
held by the High Court that it is a
statutory body. This was reversed by
the Supreme Court and it was held
that the committee of management
1 All] Pujari Yadav V. Ram Briksh Yadav
275
was not a statutory body or rather it
was held to be a private body.
(ii) There was no agreement between the
Executive Committee of the College
and the Principal.
(iii) In absence of any agreement, the
statutory provisions requiring prior
approval of the Vice Chancellor did
not apply.

13. The aforementioned findings are
clear from the following observations of
the Supreme Court:

It may be noticed that so far as the
plea of the plaintiff-respondent that he
had executed an agreement with the
Executive Committee of the College
which formed the basis of the terms of his
contract of service was concerned the
learned Additional Civil and Sessions
Judge also affirmed the finding of the
Munsif on this point and held that there
was no such agreement. Even before us
this finding was not disputed by the
learned
counsel
for
the
plaintiffrespondent who has proceeded on the
assumption that there was no agreement
executed between the plaintiff and the
defendant as alleged by the plaintiff.
[Paragraph-5].
...
In the instant case, the statute merely
enjoined that the agreement between the
employer and the employee should be
incorporated according to the form and
conditions prescribed by the statute and
until the said agreement is executed the
provisions of the Statute would not apply
proprio vigore.[Paragraph-12].

14. Thus it is clear that in the Vaish
College case the services were terminated
by a private body. There was also no
violation of any statutory provision. On
these
facts,
the
three
categories
enumerated in the Vaish College case are
exhaustive but if the facts are otherwise
then it may not be so; for example:

(i) If a body (which is not a statutory
body) is a state within the meaning
of Article 12 of the Constitution and
acts contrary to the regulations and
byelaws framed by it then it will be
violating
article
14
of
the
Constitution. Can it be still said that
a suit is not maintainable for
enforcement of Article 14?
(ii) If a private body (which is neither
statutory body nor a state within the
meaning of Article 12 of the
Constitution)
acts
contrary
to
mandatory provisions of law. Or in
other words acts contrary to the
mandate of the legislature. Can if
still be said that a suit is not
maintainable?

15. In our opinion on the facts of the
Vaish College, the three categories
mentioned
therein
are
exhaustive.
Nevertheless, if the facts are otherwise
then they may not be so. In fact this was
explained in the judgment itself by Justice
Bhagwati in his concurring but separate
judgment:

'But in any event it does appear to
me that the three exceptions formulated in
the statement of law laid down by this
Court in the above decisions are not
intended to be and cannot be exhaustive.
The categories of exceptions to the
general rule should not be closed, because
any attempt at rigid and exhaustive
formulation of legal rules--any attempt to
put law in a straitjacket formula--is bound
to stifle the growth of law and seriously
cripple its capacity to adapt itself to the
276 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
changing needs of society. In fact, Ray J.,
as he then was, speaking on behalf of this
Court in Sirsi Municipality v. Cecelia
Kom Francis, (1973) 3 SCR 348= (AIR
1973 SC 855) pointed out that the third
exception applied not only to employees
in the service of "bodies created under
statutes", but also to those in the
employment of "other public or local
authorities." It may be a possible view --
and some day this Court may have to
consider it --that where law, as distinct
from contract, imposes a mandatory
obligation prescribing the kind of contract
which may be entered into by an
employer and the manner in which alone
the service of an employee may be
terminated, any termination of service
effected in breach of such statutory
obligation
would
be
invalid
and
ineffective and in such a case the court
may treat it as null and void.' [Paragraph
32 of the judgment].

16. In our opinion the following two
categories may be added to three
mentioned in the Vaish College case:

(iv) Where a body which is non-statutory
but is 'State' within the meaning of
Article 12 of the Constitution acts
contrary to the Rules, Regulations
and bye-laws framed by it.
(v) Where a private body (which is
neither statutory nor 'State' within the
meaning of Article 12 of the
Constitution) acts in violation of any
mandatory provision of statutory
law.

17. We would have, either finally
decided this point or if necessary referred
it to the larger bench for decision,
however, in view of our finding on other
points, it is not necessary to do so. Even if
it is taken that these two categories as
mentioned above are added, no relief can
be granted to the plaintiff-appellant.
(Kindly see Appendix-I)

POINT NO. 2: NO VIOLATION OF
ANY STATUTORY PROVISION.

18. The committee of management
is not a statutory body. This is clear from
the VaishCollege case as well as Aley
Ahmad Abidi Vs. DIOS, Allahabad and
others AIR 1977 Allahabad 539. The
committee of management is also not a
State within the meaning of Article 12 of
the Constitution. So the fourth exception
does not apply. However, is there
violation of any mandatory provision of
statutory law?.

19. The counsel for the appellant
submitted that before terminating the
services of class IV employee prior
approval of the Inspector was necessary
under regulation 31 of Chapter-III. In
support of his submission, he has also
brought to our notice the following
decisions:

(i) Daya Shanker Tewari vs. Principal
RDBM
Uchchatar
Madhyamik
Vidyalay Neogaon, Mirzapur and
others: 1998 (1) ESC 403 (All);
(ii) Principal Rastriya Inter College, Bali
Nichlaul, vs. DIOS and others: 2000
(1) ESC 704 (All);
(iii) Raj Kumar Sharma vs. Joint Director
of Education (Girls), directorate of
Education UP Allahabad and others
(1993) 2 UPLBEC 1402.

Is this submission correct?

20. Section 16-G of the Act relates
to conditions of service. Initially the title
1 All] Pujari Yadav V. Ram Briksh Yadav
277
of this section was 'Conditions of Service
of Teachers'. Subsequently by UP Act No.
26 of 1975 this title was amended and
words 'Conditions of service of Heads of
Institutions, teachers and other employees'
were substituted. Sub-section (1) of
section 16-G {Section 16-G(1)} provides
that conditions of service of every person
employed in a recognised institution may
be
prescribed
by
Regulations
and
agreement which is not inconsistent with
provisions of the Act and the Regulations.
Sub-section (3) of Section 16-G {Section
16-G(3)} provides that the Principal,
Headmaster and teacher may not be
discharged, removed or dismissed from
service or reduced in rank or subjected to
any diminution in emoluments without
the prior approval in writing of the
Inspector. The word Inspector means the
District Inspector of Schools, (DIOS) and
in relation of institution for girls, the
Regional Inspectress of Girls School
{Section 2(bb) of the Act}. A party
aggrieved by grant of approval can also
file appeal before the Regional Deputy
Director of Education. Section 16-G (3)
does not apply to the non-teaching staff.

21.

The
Board
has
framed
regulations under section 15 of the Act.
Regulation 31 of Chapter III of the
Regulation (see Appendix-II of the
judgment) provides that the prior approval
of the Inspector will be necessary for the
punishments enumerated therein. This
includes dismissal also which is the case
in present. Regulation 31 unlike section
16-G(3) of the Act is not confined to the
teachers and Head of Institutions but
refers to the 'employees' which prima
facie include non teaching staff as well as
class IV employees also.

22. Regulation 31 has been amended
twice:

(i) By
the
Notification
no.
789
(1)/15(7)-75 dated 1st March 1975
published vide No. Board-7/562-V-8
(Board September 1974) Allahabad
dated 10th March 1975 (the 1975
Notification). By this notification
two clauses were added in regulation
31.
(ii) By Notification No. 8372/15(7)-
12(103)/77 Lucknow: dated 27th
February,
1978
(the
1978
Notification). By this Notification
the two clause added by the 1975
Notifications were modified.

23. The effect of the first clause
added by the 1975 Notification was to
empower the principal to award any
punishment to class IV employees and his
order is subject to appeal before the
Committee of Management. The second
clause provides further appeal to the
DIOS/Regional Inspector. These clauses
are
further
amended
by
the
1978
Notification, however substantially they
remain the same.

24. The services in the present case
were terminated on 12.6.1977 and as such
the Regulation 31 as amended by the
1975 notification was applicable. The
question is, whether Regulation 31 as
amended
by
the
1975
Notification
requires prior approval of the Inspector
before terminating the services a class IV
employee or not.

25. It is correct that the cases
(mentioned in paragraph 19 of this
judgement) do support the submission of
the plaintiff-appellant. However these
cases have not taken into account the
278 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
amendment made in Regulation 31 by the
1975 or 1978 Notification. They have
taken into account regulation 31 as it was
originally framed. These cases have not
considered the regulation 31 as amended
from time to time and can not be pressed
to show that prior approval was necessary
before terminating services of class IV
employees. This question has to be
decided in the light of the regulation 31 of
Chapter III as amended.

26. Regulation 31 as it was
originally framed required prior approval
of the DIOS before terminating service of
an employee. However, after addition of
two clauses in regulation 31 in 1975 it
clearly empowered the principal to
terminate
the
services
of
class-IV
employee. It further provided an appeal to
the Committee of Management and
thereafter to the Inspector itself. In case
prior approval of Inspector was necessary
before terminating services of class IV
employee then what was the point in
providing appeal first to the committee of
management and then to the Inspector. In
case the Inspector has already granted
approval for terminating the service then
can he change his decision in the appeal.
In our opinion the purpose of including
two clauses by 1975 notification, which
continued with some modification by
1978 notification, clearly show that the
principal is empowered to terminate the
services of the class-IV employee without
taking any prior approval of the Inspector
and his decision is final; it is subject to an
appeal
before
the
committee
of
management then to the appeal before the
Inspector.

27. We are not alone in taking this
view. It is also so held by a division bench
of our court after considering these
amendments in the case of Ali Ahmad
Ansari vs. DIOS Kushinagar and others:
2006(3) ESC 1965 All) DB). The court
held that:

'The scheme of the Regulations 31 to
45 Chapter-III, thus, do not provide that
prior approval is required for awarding
punishment of removal or termination of a
Class-IV employee from the District
Inspector of Schools.'

28. In view of above we hold that
after amendment of Regulation 31 by the
1975 Notification, it is not necessary to
take prior approval of the Inspector before
terminating the services of a Class-IV
employee.

29. There will be no difference in
outcome of this case, even if the three
exceptions laid down in the VaishCollege
case are extended by the two exceptions
mentioned in paragraph 16 of this
judgement: this case is neither covered by
the fourth nor by the fifth.

POINTS NO. 3: FINDING NOT VITIATED

30. In our opinion, even if it is taken
that the prior approval of the Inspector
was
necessary
and
the
suit
was
maintainable before the Civil Court no
relief can be granted to the plaintiffappellant.

31. The trial court had held in favour
of the plaintiff-appellant but the appellate
court has recorded the following findings:

•
The defendant-respondent was
officiating principal and could
terminate the services of plaintiffappellant.
1 All] Pujari Yadav V. Ram Briksh Yadav
279
•
There is no violation of principle
of natural justice in terminating
the services of the plaintiffappellant as he himself admitted
his guilt and his admission was
not properly explained.

32. These are findings of fact. There
is nothing to show that these findings are
illegal. On these finding, even if the prior
approval of Inspector was necessary no
relief could be granted to the plaintiffappellant.

POINT NO. 4: NECESSARY PARTY
NOT IMPLEADED.

33. The School was a recognised
institution. The grain-in-aid is given by
the State Government. It is given for the
post that was held by the plaintiffappellant. The committee of management,
the State Government and the DIOS have
not been impleaded as parties. In their
absence no relief can be granted as the
damages are to be paid by the State
Government. It is not a fit case in which
any relief should be granted in absence of
these parties. This is also clear from the
decision reported in (2001) 10 SCC 11;
Shiv Kumar Tiwari (D) Lrs Vs. Jagar
Narain Rai and others.

CONCLUSIONS

34. Our conclusions are as follows:

(a) In a suitable case, the court may
consider whether the three exceptions
mentioned in the VaishCollege case
are exhaustive or not and may
consider including the following two
more exceptions,

(iv) Where a body which is nonstatutory but is State within the
meaning of Article 12 of the
Constitution acts contrary to the
Rules, Regulations and Bye Laws
framed by it.
(v) Where a private body (which is
neither statutory nor state within the
meaning of Article 12 of the
Constitution) acts in violation of
any
mandatory
provision
of
statutory law.
(b) After amendment of regulation 31 by
the 1975 Notification prior approval
of the Inspector (DIOS here) is not
necessary
before
terminating
the
services of class IV employee.
(c) No mandatory provision of statutory
law was violated before terminating
the services of the plaintiff appellant.
(d) In absence of of State and DIOS as a
party, no relief can be granted to the
plaintiff appellant.

35. In view of our conclusions, the
appeal is dismissed however, the parties
shall bear their own cost.

Appendix-I

Apart from the VaishCollege case,
some other cases were also cited before
us. As we have not finally expressed our
opinion on the first point, we have not
referred to them in our judgement but
wish to refer them here in case they are so
required in future.

Cases Cited By The DefendantRespondent

J. Tiwari vs. Jwala Devi Vidya
Mandir AIR 1981 SC 122 (the JwalaDevi
case) and UPSW Corporation vs. CK
Tyagi case AIR 1979 SC 1244 (the
280 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Warehousing case) were cited by the
counsel for the defendant-respondent.

The Jwala Devi case has merely
assumed that the Vaish College Case is
correct and the court was influenced by
the fact that the plaintiff did not attempt to
mitigate the damages.

In the Warehousing case, there was
breach
of
regulation
16(3)
while
conducting the enquiry. The Supreme
Court refused to grant the declaration that
the termination is null and void as well as
dthe
eclaration
that
the
employee
continues to be in service. However this
was on the following finding (paragraph
31 of the judgement,

'An order made in breach of the
regulations ... would not be in breach of
any statutory obligation, ... The Act does
not guarantee any statutory status to the
respondent, nor does it impose any
obligation on the appellant in such
matters. ... It is not in dispute that, in this
case, the authority who can pass an order
of dismissal has passed the same. Under
those
circumstances,
a
violation
of
regulation
16(3),
has
alleged
and
established in this case, can only result in
the order of dismissal being held to be
wrongful and, in consequence, making the
appellant liable for damages. But the said
order cannot be held to be one which has
not
terminated
the
service,
albeit
wrongfully
or
which
entitles
the
respondent to ignore it and ask for being
treated as still in service.

Cases Cited By The Plaintiff-Appellant

The plaintiff-appellant has cited P.
Shri AKUM Vidyalay vs. B. Ram: 1978
(4) ALR 62 and Sachindanand Dubey vs.
Committee of Management (1995) 3
UPLBEC 1682. In these cases the
VaishCollege case was distinguished.

Appendix-2

The Regulation 31 as it was initially
framed was as follows:

31- deZpkfj;ksa dh izkI; naM] ftlds fy, fujh{kd vFkok
eaMyh; fujhf{kdk dh iwoZ Lohd`fr vko';d gksxh]
fuEufyf[kr esa ls fdlh ,d :i esa gks ldrh gS%&

1⁄4d1⁄2 fo;qfDr;
1⁄4[k1⁄2 i`FkDdj.k vFkok izeqfDr;
1⁄4x1⁄2 Js.kh esa voufr
1⁄4?k1⁄2 ifjyfC/k;ksa esa deh

The followings two clauses were added by
the 1975 Notification.

prqFkZ Js.kh deZpkfj;ksa dks mijksDr dksbZ naM nsus gsrq
iz/kkukpk;Z vFkok iz/kkuk/;kid l{ke gksxkA l{ke vf/kdkjh
}kjk naM fn;s tkus dh n'kk esa prqFkZ Js.kh deZpkjh }kjk
izcU/k lfefr dks vihy dh tk ldsxhA ;g vihy naM
lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj izLrqr gks
tkuh pkfg,A leLr vko';d vfHkys[kksa ij fopkj djus ,oa
deZpkjh dh] ;fn pg izcU/k lfefr ds le{k Lo;a mifLFkfr
gksuk pkgs] lquokbZ ds i'pkr izcU/k lfefr vihy ij fu.kZ;
nsxhA

prqFkZ Js.kh deZpkjh dks ;g Hkh vf/kdkj gksxk fd
mldh vihy ij fd;s x;s izcU/k lfefr ds fu.kZ; ds fo:)
og ftyk fo|ky; fujh{kd@eaMyh; ckfydk fo|ky;
fujhf{kdk dks] fu.kZ; lwfpr fd;s tkus dh frfFk ls ,d ekg
ds vUnj] vH;kosnu dj ldsxkA ftyk fo|ky;
fujh{kd@eaMyh; ckfydk fo|ky; fujhf{kdk dk fu.kZ;
vfUre gksxkA

vH;kosnu ds izLrqrhdj.k] fopkj ,oa fu.kZ; ds
lEcU/k esa vko';d ifjorZu ds lkFk bl v/;k; ds fofu;e
86 ls 98 ykxw gksaxsA

The two clauses added by the 1975
Notification were substituted by the
followings
clauses
by
the
1978
Notification.
1 All] Jai Prakash V. State of U.P. and others
281
PrqFkZ Js.kh deZpkfj;ksa dks mijksDr dksbZ naM nsus gsrq
iz/kkukpk;Z vFkok iz/kkuk/;kid l{ke gksxkA l{ke vf/kdkjh
}kjk naM fn;s tkus dh n'kk esa prqFkZ Js.kh deZpkfj;ksa }kjk
izcU/k lfefr dks vihy dh tk ldsxhA ;g vihy naM
lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj izLrqr gks
tkuh pkfg, vkSj ml ij izcU/k lfefr }kjk fu.kZ; vihy
dh izkfIr dh frfFk ls vf/kdre 6 lIrkg ds Hkhrj ns fn;k
tkosxkA leLr vko';d vfHkys[kksa ij fopkj djus ,oa
deZpkjh dh] ;fn og izcU/k lfefr ds le{k Lo;a mifLFkfr
gksuk pkgs] lquokbZ ds i'pkr izcU/k lfefr vihy ij fu.kZ;
nsxhA

prqFkZ Js.kh deZpkjh dks ;g Hkh vf/kdkj gksxk fd
mldh vihy ij fd;s x;s izcU/k lfefr ds fu.kZ; ds fo:)
og ftyk fo|ky; fujh{kd@eaMyh; ckfydk fo|ky;
fujhf{kdk dks] fu.kZ; lwfpr fd;s tkus dh frfFk ls ,d ekg
ds vUnj] vH;kosnu dj ldsxkA

fdUrq izfrcU/k ;g gksxk fd ;fn izcU/k lfefr mi;qZDr
fu/kkZfjr N% lIrkg dh vof/k ds Hkhrj viuk fu.kZ;
mijksDr vihy ij u ns rks lEcfU/kr deZpkjh viuk
vH;kosnu lh/ks ftyk fo|ky; fujh{kd@eaMyh; ckfydk
fo|ky; fujhf{kdk dks mijksDr N% lIrkg dh vof/k chr
tkus ij ns ldrk gSA

ftyk fo|ky; fujh{kd@eaMyh; ckfydk fo|ky;
fujhf{kdk }kjk mijksDr vH;kosnu dh izkfIr dh frfFk ls
vf/kdre rhu ekg ds Hkhrj fu.kZ; ns fn;k tk;sxk vkSj ;g
fu.kZ; vfUre gksxkA

vH;kosnu ds izLrqrhdj.k] fopkj ,oa fu.kZ; ds
lEcU/k esa vko';d ifjorZu ds lkFk bl v/;k; ds fofu;e
86 ls 98 esa ykxw gksaxsA
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2006

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No.42264 of 2001

Jai Prakash

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

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Counsel for the Respondents:
S.C.

U.P. Office Inspection Service Rules,
1990-Rule
21-seniority-peitioner
got
promotion-under promotion quota on
1.7.96 in the vacancy of 1996-97-direct
appointee selected against the vacancy
of 1989-90-admitedly the substantive
date of appointment of petitioner is
2.12.98
whereas
direct
recruities
29.8.98-placement of petitioner below
the direct recruities-held-proper-there
can not be retrospective promotion.

Held: Para 10 & 11

From a reading of Rule 21, we find that
seniority has to be determined according
to the date of substantive appointment.

The date of substantive appointment
which
is
the
criteria
fixed
for
determining the seniority under sub-rule
(1) of Rule 21 of the Rules, in respect of
the petitioner is subsequent to the date
of substantive appointment of the direct
recruits and, therefore, the petitioner
has rightly been placed after the direct
recruits. Even though under the first
proviso to sub-rule (1) of Rule 21 of the
Rules, the provisions have been made to
treat the date of order as substantive
appointment if the appointment order
specifies a particular back date, it does
not give any advantage to the petitioner
to claim a back date for substantive
appointment as the appointment order
does
not
mention
the
petitioner's
appointment from any back date.
Case law discussed:
J.T. 1991 (5) SC-35
1991 Supp. (2) SCC-363

(Delivered by Hon'ble R.K. Agrawal, J.)

1. By means of the present writ
petition filed under Article 226 of the
Constitution of India, the petitioner, Jai
Prakash, seeks the following reliefs:-