# Raghuvendra Babu Mishra v. District Inspector of Schools, Etah and others

- **Citation:** (2002) 2 ILRA 346
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-05-24
- **Case number:** Special Appeal No. 719 of 1997
- **Bench:** S.K. Sen, C.J. R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghuvendra-babu-mishra-v-district-inspector-of-schools-etah-and-others-39200
- **Pages:** 9

## Headnote

Sri Sabhajit Yadav
S.C.

U.P.
Secondary
Education
Services
Selection Board Act, 1982- Section 33-B
(1)- the right of a teacher appointed in a
short term vacancy on or before the date
specified in section 33-B (1) accrues only
upon the short term vacancy being
converted into a substantive vacancy
and a teacher appointed in short terms
vacancy on or before the specified dates,
who is not found 'suitable' and 'eligible'
for substantive appointment shall cease
to hold the appointment on such date as
the State Government may by order
specify and not on the date the short
terms vacancy came to be converted into
substantive vacancy. (Held in para 14).

The special appeal succeeds and is
allowed. The respondent no. 1 is directed
to refer the matter relating to the grant
of
substantive
appointment
to
the
appellant-
writ
petitioner
to
the
Selection Committee constituted under
sub section (2) of Section 33-B of U.P.
Secondary Education Services Selection
Board Act, 1982 and till such time any
decision is taken by the said committee,
the
appellant-
writ
petitioner
be
permitted to continue on the post in
question and be paid salary.
Case Law Preferred:
(I) 1997 (2) UPLBEC 1329
(II) 1999 (2) UPLBEC 1420
(III) 2000 (3) ESC 1990
(IV) AIR 1997 SC-3071

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
346
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24 MAY, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 719 of 1997

Raghuvendra Babu Mishra
...Appellant
Versus
District Inspector of Schools, Etah and
others

 ...Respondents

Counsel for the Appellant:
Sri R.S. Dwivedi
Sri V.S. Dwivedi

Counsel for the Respondents:
Sri Sabhajit Yadav
S.C.

U.P.
Secondary
Education
Services
Selection Board Act, 1982- Section 33-B
(1)- the right of a teacher appointed in a
short term vacancy on or before the date
specified in section 33-B (1) accrues only
upon the short term vacancy being
converted into a substantive vacancy
and a teacher appointed in short terms
vacancy on or before the specified dates,
who is not found 'suitable' and 'eligible'
for substantive appointment shall cease
to hold the appointment on such date as
the State Government may by order
specify and not on the date the short
terms vacancy came to be converted into
substantive vacancy. (Held in para 14).

The special appeal succeeds and is
allowed. The respondent no. 1 is directed
to refer the matter relating to the grant
of
substantive
appointment
to
the
appellant-
writ
petitioner
to
the
Selection Committee constituted under
sub section (2) of Section 33-B of U.P.
Secondary Education Services Selection
Board Act, 1982 and till such time any
decision is taken by the said committee,
the
appellant-
writ
petitioner
be
permitted to continue on the post in
question and be paid salary.
Case Law Preferred:
(I) 1997 (2) UPLBEC 1329
(II) 1999 (2) UPLBEC 1420
(III) 2000 (3) ESC 1990
(IV) AIR 1997 SC-3071

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

1. The present special appeal has
been filed by Raghvendra Babu Mishra
against the judgment and order dated
3.9.1997 passed by the learned Single
Judge in Writ Petition No. 10210 of 1994,
wherein the learned Single Judge had held
that the petitioner is not entitled to
regularization/substantive appointment on
the post of lecturer and had dismissed the
writ petition.

2. Briefly stated the facts giving rise
to the present appeal are as follows:

3. The appellant-writ petitioner was
appointed as a lecturer in Physics in
Gandhi Vidya Mandir Inter College,
Fatehpur- Etah (hereinafter referred to as
the College,), on 15.7.1989 in a short term
vacancy caused by the existing lecturer
Rama Nand Misra proceeding on leave.
The
appellant-
writ
petitioner
was
appointed under the provisions of U.P.
Secondary
Education
Services
Commission (Removal of Difficulties)
(Second) Order 1981 (hereinafter referred
to as the Second Removal of Difficulties
Order). His appointment was approved by
the District Inspector of Schools on
16.9.1989. He continued to work and
received salary from the State exchequer.
On 17.1.1994 he received a letter from the
Manager of the college stating therein that
the leave of Ram Nand Misra was going
to be over on 31.1.1994 and, therefore, he
shall be relieved from the post in case
2 All] Raghuvendra Babu Mishra Vs. D.I.O.S., Etah and others
347
Rama Nand Misra joins. The petitioner
approached this Court by filing a writ
petition
under
Article
226
of
the
Constitution of India, seeking a writ of
mandamus directing the opposite parties
to pass an order of regularization as
lecturer in Physics in the institution in
view of section 33-B, which was inserted
in U.P. Secondary Education Services
Selection Board Act 1981 (hereinafter
referred to as the Act,) which came into
force on 7.8.1993. According to the
appellant- writ petitioner the short term
leave vacancy on which he was appointed
on adhoc basis became substantive
vacancy, when Rama Nand Misra did not
join the college after the expiry of his
leave on 31.1.1994. The District Inspector
of Schools did not accept the claim of the
appellant-writ petitioner on the ground
that the short term vacancy was converted
into a substantive vacancy on 8.2.1990
on; which date Rama Nand Misra was
absorbed and confirmed as Head Master
in Uchchattar Madhyamik Vidyalaya,
Talesra, Aligarh and on the said date the
appellant- writ petitioner ceased to be a
lecturer in Physics. The learned Single
Judge relying upon a Full Bench decision
of this court in the case of Smt. Pramila
Misra v. Deputy Director of Education,
Jhansi Division, Jhansi and others,
reported (1997) 2 UPLBEC- 1329 held
that the appellant- writ petitioner ceased
to work on the post of lecturer in Physics
on 8.2.1990 on which date Rama Nand
Misra, who had gone on leave was finally
absorbed and confirmed on the post of
Head Master in another institution and
further the continuation of the petitioner
as lecturer in Physics in said college after
8.2.1990 was not by virtue of his own
right. The learned Single Judge further
found that the essential requirement for
regularization of service under the newly
inserted provisions of section 33B that the
persons, who continued to be in service
on 7.8.1993 on which date the new
section came into force is lacking in the
present
case
and
accordingly,
the
appellant- writ petitioner is not entitled
for regularization.

4. We have heard Dr. R.S. Dwivedi,
learned Senior counsel assisted by Sri
V.S. Dwivedi on behalf of the appellant-
writ petitioner and Sri Sabhajit Yadav,
learned standing counsel appearing on
behalf of the respondents.

5. Dr. Dwivedi, learned senior
counsel submitted that the appellant writ
petitioner was admittedly appointed on a
leave vacancy caused by Rama Nand
Misra on 15.7.89. His appointment was
made after following the due procedure of
law and was also given approval by the
District Inspector of Schools. The college
had sanctioned the leave of Rama Nand
Misra till 31.1.1994. Rama Nand Misra
did not join the college after 31.1.1994
and
the
appellant-
writ
petitioner
continued to work as lecturer in Physics
in the said college till 31.1.94 and was
paid his salary under the U.P. High
School
and
Intermediate
Colleges
(Payment of salaries to teachers and other
employees)
Act,
1971
(hereinafter
referred to as the Payment of Salaries
Act) by the State Government without any
objection. The short term leave vacancy
of Rama Nand Misra stood converted into
a substantive vacancy on 31.1.94, when
his leave expired. He also emphasized
that Rama Nand Misra had not at all
informed the college authorities about his
absorption and confirmation as Head
Master
in
Uchchattar
Madhyamik
Vidyalaya, Talelsra, Aligarh on 8.2.90.
According to him in view of the newly
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
348
inserted section 33-B in the Act w.e.f.
7.8.93, since the appellant-writ petitioner
continued in service as lecturer in Physics
in the said college on adhoc basis, his
case is liable to be considered for that
purpose. He further submitted that the
Full Bench decision of this court in the
case of Smt. Pramila Misra (supra) has
been considered subsequently by a
Division Bench of this Court in the case
of Raj Kumar Verma v. District Inspector
of
Schools,
Saharanpur
and
others
reported
in
(1999)
2UPLBEC-1420
wherein the Division Bench has held that
the right of a teacher appointed in a short
term vacancy on or before the date
specified in section 33-B (1) accrues only
upon the short term vacancy being
converted into a substantive vacancy and
a teacher appointed in short term vacancy
on or before the specified dates, who is
not found 'suitable' and 'eligible' for
substantive appointment shall cease to
hold the appointment on such date as the
State Government may by order specify
and not on the date the short term vacancy
came to be converted into substantive
vacancy. He further relied upon a
Division Bench decision of this Court in
the case of Smt. Shashi Saxena and others
v.
Deputy
Director
of
Education
(Secondary) U.P. and others, reported in
2000 (3) Education and Service Cases-
1990 and submitted that the decision in
Raj Kumar Verma (supra) has been
followed and this Court had held that an
appointment on adhoc basis on the post of
assistant teacher in L.T. grade being
converted into a substantive vacancy on
the retirement of the person holding the
substantive post does come to an end
automatically. Thus, according to Dr.
Dwivedi the appointment of appellantwrit petitioner did not come to an end
automatically on conversion of short term
vacancy post into a substantive vacancy
post and he is entitled for being
considered for regularization/substantive
appointment.

6.

Learned
standing
counsel,
however, submitted that the short term
vacancy post which the appellant- writ
petitioner was occupying stood converted
into a substantive vacancy post on 8.2.90,
when Rama Nand Misra was absorbed
and confirmed on the post of Head Master
in another institution and the appointment
of the appellant - writ petitioner, in view
of the Full Bench decision in the case of
Smt. Pramila Misra ceased on that day
itself. He further submitted that if the
appellant- writ petitioner, had continued
to work thereafter and received salary
even from the state exchequer uptill
31.1.94, that would not give any right,
benefit or advantage to him to claim
regularization of his services on the
substantive post of lecturer in Physics in
the said college under section 33-B of the
Act, as he would be deemed not to be in
service on the date of commencement of
the said section. He relied upon a decision
of the Hon'ble Supreme Court in the case
of Committee of Management, Arya
Nagar Inter College, Kanpur, through its
manager and another v. Sree Kumar
Tewary and another reported in AIR 1997
SC-3071.

7. Having heard the learned counsel
for the parties, we find that in the present
case the question is as to whether the
appellant- writ petitioner, who was
appointed in a short term leave vacancy
on 15.7.89 and whose appointment was
approved by the District Inspector of
Schools on 16.9.89 and continued to work
till
31.1.94,
is
entitled
for
being
considered
for
regularization
under
2 All] Raghuvendra Babu Mishra Vs. D.I.O.S., Etah and others
349
section 33-B of the Act or not. It is not in
dispute that the appellant- writ petitioner
was appointed under the provisions of
Second Removal of Difficulties Order
after following the due procedure. He
continued to work till 31.1.94 without any
let or hinerance from any quarter and also
received salary from the State exchequer
under the provisions of the Payment of
Salaries Act. Section 33-B of the Act
deals with regularization of certain
appointment. It reads as follows:

"33-B Regularization of certain
other appointments:-

a) (i) was appointed by promotion or
by direct recruitment in the Lecturer grade
or Trained graduate grade on or before
May 14, 1991 or in the Certificate of
teaching grade on or before May 13, 1989
against
a
short
term
vacancy
in
accordance with Paragraph 2 of the Uttar
Pradesh Secondary Education Services
Commission (Removal of Difficulties)
(second) Order, 1981 and such vacancy
was
subsequently
converted
into
a
substantive vacancy; or

(ii) was appointed by direct
recruitment on or after July 14, 1981 but
not later than July 12, 1985 on ad hoc
basis against a substantive vacancy in the
Certificate of Teaching grade through
advertisement and such appointment was
approved by the Inspector; or

(iii) was appointed by promotion or
by direct recruitment on or after July 31,
1988, but not later than May 14, 1991 on
adhoc basis against a substantive vacancy
in accordance with Section 18, [as it stood
before its substitution by the Uttar
Pradesh Secondary Education Services
Commission
and
selection
Boards
(Second Amendment) Act, 1992];

b) possesses the qualifications
prescribed under, or is exempted from
such qualifications in accordance with,
the
provisions
of
the
Intermediate
Education Act, 1921;

c) has been continuously serving the
Institution
from
the
date
of
such
appointment up to the date of the
commencement of the Act referred to in
sub-clause (iii) of Clause (a);

d) is not related to any member of
the management or the Principal or Head
Master of the Institution concerned in the
manner specified in the explanation to
sub-section (3) of Section 33-A;

e) has been found suitable for
appointment in a substantive capacity by a
Selection Committee constituted under
sub-section (2), shall be given substantive
appointment by the management.

2.(a)
For each region, there shall
be a Selection Committee comprising--

i) Regional Deputy Director of
Education of that region, who shall be the
Chairman.

ii) One officer holding a Group 'A'
post [specified as such by the State
Government from time to time] in any
department
other
than
Education
department, to be nominated by the State
Government.

iii) Regional Inspectress of Girls
School of that region; Provided that the
Inspector of the District shall be co-opted
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
350
as a member while considering the cases
for regularization of that district.

(b) The Selection Committee
constituted
under
Clause
(a)
shall
consider the case of every such teacher
and on being satisfied about his eligibility
and suitability in view of the provisions of
sub-section (1) shall, subject to the
provisions of sub-section (3) recommend
his
name
to
the
Management
for
appointment under sub-section (1) in a
substantive vacancy.

(3) (a) The names of the teachers
shall be recommended for substantive
appointment in order of seniority as
determined from the date of their
appointment.

(b) if two or more such teachers are
appointed on the same date, the teacher
who is elder in age shall be recommended
first.

(4) Every teacher appointed in a
substantive capacity under sub section (1)
shall be deemed to be on probation from
the date of such substantive appointment.

(5) A teacher who is not found
suitable under sub-section (1) and a
teacher who is not eligible to get a
substantive appointment under that subsection
shall
cease
to
hold
the
appointment on such date as the State
Government may by order specify.

(6) Nothing in this section shall be
construed to entitle any teacher to
substantive appointment, if on the date of
commencement of the Act referred to in
sub-clause (iii) of Clause (a) of subsection (1), such vacancy had already
been filled or selection for such vacancy
has already been made in accordance with
this Act."

8. From a reading of the aforesaid
section, it is clear that a person, who has
been appointed by direct recruitment in
the lecturers' grade on or before 14.5.91
against
a
short
term
vacancy
in
accordance with para-2 of the Second
Removal of Difficulties Order and such
vacancy was subsequently, converted into
a substantive vacancy and he possesses
the
qualification
prescribed
or
is
exempted from such qualification under
the provisions of Intermediate Education
Act, 1921, and has been continuously
serving the college upto the date of the
commencement of the Act and is not
related to any member of the management
or the Principal or the Head Master of the
college and has been found suitable for
appointment for a substantive capacity by
a selection committee constituted under
section (2) shall be given substantive
appointment by the management. When
considered as to whether the appellantwrit petitioner fulfils the requirement of
section 33-B (i) or not, we find that the
appellant-writ petitioner was appointed
before 14.5.91 i.e. on 15.7.1989 in the
lecturers'/grade under the provisions of
Removal of Difficulties Order, which
appointment has also been approved by
the District Inspector of Schools. He has
been continuously working since 15.7.89
till
31.1.1994
i.e.
even
after
the
commencement of the Amending Act,
which is 6.8.93. Thus, he is entitled for
being considered for regularization by a
Selection Committee duly constituted
under sub-section (2) of Section 33-B of
the Act.
2 All] Raghuvendra Babu Mishra Vs. D.I.O.S., Etah and others
351

9. In the case of Smt. Pramila
Mishra (supra), the Full Bench of this
Court has held that--

"A teacher appointed by the
management of the institution on adhoc
basis in a short term vacancy (leave
vacancy/suspension vacancy), which is
subsequently
converted
into
a
substantive vacancy in accordance with
the provisions of the Act, Rules and
Orders,
(on
death,
resignation,
dismissal or removal of the permanent
incumbent), cannot claim a right to
continue. He has, however, right to be
considered alongwith other eligible
candidates for adhoc appointment in
the substantive vacancy if he possesses
the requisite qualifications."

10. The decision of the Full Bench
in the case of Smt. Pramila Mishra (supra)
was
considered
subsequently
by
a
Division Bench in the case of Raj Kumar
Verma (supra), wherein the Division
Bench has held as follows:

"The question for consideration
before the full Bench in the case of
Pramila Mishra (supra), was whether a
teacher appointed on adhoc basis in a
short term vacancy, such as a vacancy
caused due to leave, was entitled; as of
right: to continue on the said post even
after the short term vacancy had been
converted into a permanent vacancy
due to death, resignation, retirement or
termination
of
the
permanent
incumbent. The full Bench noticed that
the answer to the question would
depend on the interpretation of Section
33-B of the U.P. Secondary Education
Service
Commission
and
Selection
Boards Act, 1982 [U.P. Act No. 15 of
1982] and its "interaction with the
provisions of the U.P. Secondary
Education
Service
Commission
[Removal
of
Difficulties]
[Second]
Order, 1981. The Full Bench held as
under:

"In the case of adhoc appointment
in a short term vacancy paragraph-3 of
the Second Order specifically lays
down that the appointment will come to
an end if the short term vacancy
otherwise ceases to exist. It follows,
therefore, that when a vacancy caused
due to grant of leave to or suspension of
the permanent incumbent becomes a
substantive vacancy on account of his
death resignation or termination or
removal from service, the short term
vacancy ceases to exist and substantive
vacancy is created in its place. On a
perusal of the relevant provisions
anxious consideration to the matter, we
do not find any provision which
directly or even indirectly vests a right
in a person appointed as an adhoc
teacher in a short term vacancy to
continue even after the said vacancy
has ceased to exist and a substantive
vacancy has been created in its place.
What we want to stress and which is
clear to us is that he cannot claim as a
matter of right that he is entitled to
continue the post till the candidate
selected by the Commission/Board joins
even if the short term vacancy has
ceased and a substantive vacancy in the
post of teacher has been created in its
place."

Paragraph-3 of the U.P. Secondary
Education
Service
Commission
(Removal
of
Difficulties)
(Second)
Order, 1981, as amended by para-3 of
the U.P. Secondary Education Service
Commission (Removal of Difficulties]
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
352
[Third] Order 1982 provides that every
appointment of an adhoc teacher under
paragraph-2 shall cease to have effect
[i] when the teacher, who was on leave
or under suspension joins the post or
[ii] when the short term vacancy
otherwise ceases to exist. The full
Bench in support of its conclusions
aforestated has placed reliance on the
provisions continued in para-3 of the
Second Removal of Difficulties Order,
1981 referred to above. The Full Bench,
in support of its conclusion referred to
above, also noticed the difference in the
manner of appointments under the
provisions in the following words:

"A clear distinction has been
maintained
between
substantive
vacancy and short term vacancy of the
post of teacher. The authority to make
the appointment, the procedure to be
followed in making the appointment
and the considerations to be made in
making the appointments in the two
cases are distinct and different from
each other."

The question herein is not whether
a teacher appointed in a short term
vacancy is entitled to continue as of
right
even
after
the
vacancy
is
converted into a substantive vacancy.
The question involved in the instant
case is whether the appellants are
entitled to be considered for being
given substantive appointment under
section
33-B
accrues
only
upon
conversion of the short term vacancy
into substantive vacancy as provided in
sub-section [1] of Section 33-B. A
teacher
appointed
in
short
term
vacancy on or before the dates specified
in sub-clause [a][i] of sub-section [1] of
Section 33-B if not found 'suitable' and
'eligible' to get substantive appointment
would cease to hold the post on such
date as the state Government may by
order
specify.
That
is
how
the
provisions contained in Section 33-B of
U.P. Act No.5 of 1982 "interact" with
those of the U.P. Secondary Education
Service
Commission
[Removal
of
Difficulties] [Second] Order, 1981 in
respect of teachers appointed prior to
the date specified in the Section. The
question as to how do the two
provisions "interact" has not been
specifically answered by the Full Bench
in Pramila Mishra's case [supra]. In
our opinion the right of a teacher
appointed in a short term vacancy on
or before the date specified in Section
33-B [1] accrues only upon the short
term vacancy being converted into a
substantive vacancy and a teacher,
appointed in short term vacancy on or
before the specified dates, who is not
found 'suitable' and 'eligible' for
substantive appointment shall cease to
hold the appointment on such date as
the state Government may by order
specify and not on the date the short
term vacancy came to be converted into
substantive vacancy. The question in
our considered opinion needs to be
examined by the duly constituted
Selection Committee comprehended by
sub-section [3] of Section 33-B as the
appellants were concededly appointed
in Certificate of Teaching Grade before
the specified date namely, May 13,
1989.
Whether
they
fulfill
other
conditions of being given substantive
appointment is a question which is to
be
decided
by
the
Selection
Committee."

11. The Division Bench decision in
the case of Raj Kumar Verma was
2 All] Raghuvendra Babu Mishra Vs. D.I.O.S., Etah and others
353
subsequently
followed
by
another
Division Bench of this Court in the case
of Smt. Shashi Saxena (supra) and held
that the services of a person does not
come to an end automatically on the post
being converted into substantive vacancy.
In the case of Smt. Shashi Saxena (supra),
the facts were that one Smt. Rama
Dikshit, who was holding the substantive
post of assistant teacher in L.T. Grade
was given adhoc promotion against short
term vacancy on the post of lecturer. Smt.
Shashi Saxena was appointed on adhoc
basis in the short-term vacancy caused by
the adhoc promotion of Smt. Rama
Dikshit. Smt. Rama Dikshit retired from
service. The substantive post held by Smt.
Rama Dikshit i.e. the assistant teacher in
L.T. grade fell vacant. On these facts after
considering the provision of section 33-B
of the Act, and the Second Removal of
Difficulties Order 1981 the Division
Bench while allowing the special appeal
held that the services of Smt. Shahsi
Saxena cannot be said to have come to an
end automatically on the post of assistant
teacher in L.T. grade on being converted
into substantive vacancy on the retirement
of Smt. Rama Dikshit.

12. We are in respectful agreement
with the decision given in the case of Raj
Kumar Verma and Smt. Shashi Saxena
(supra) and hold that there is noting in
Smt.
Pramila
Mishra's
case,
which
prohibits
giving
of
a
substantive
appointment by the management if the
person has been found suitable for
appointment in a substantive capacity by a
Selection Committee constituted under
Sub-section [2] of Section 33-B of the Act
and
is
found
to
fulfill
all
other
requirements of sub section [1] of Section
33-B of the Act. In the case of Committee
of
Management,
Arya
Nagar
Inter
College, Kanpur (supra) relied upon by
the
standing
counsel,
the
Hon'ble
Supreme Court was considering the
question as to whether a person is entitled
to the benefit of section 33-B [1][a][i] of
the Act, where the services came to be
terminated on June 30,1988. The Hon'ble
Supreme Court had found that the
services of the teacher concerned was
terminated on May 30, 1988 w.e.f.
30.6.88. The said teacher continued to
remain in service on account of an interim
order passed by this Court in the writ
petition filed by the said teacher. On these
facts, the Hon'ble Supreme Court found
that admittedly, the services of the teacher
came to be terminated w.e.f. 30.6.88,
though, he had obtained a stay order and
continued to be in service, which was not
by virtue of his own right under the order
of an appointment but he continued in the
office
with
the
permission of the
management. In this view of the matter
the provisions of Section 33-B [1][a][i] of
the Act had no application.

13. Admittedly, in the present case,
the
appellant-writ
petitioner
worked
without
any
let
or
hindrance
till
31.1.1994. Even, the person, namely,
Rama Nand Mishra on whose leave
vacancy, the appellant-writ petitioner had
been appointed, did not inform the
authorities about his absorption and
confirmation as Head Master in another
college on 8.2.1990. The appellant-writ
petitioner was being paid salary under the
Payment of Salaries Act, from the state
exchequer during his appointment as
subsisting. The period of leave of Rama
Nand Mishra expired on 31.1.94, when
the management gave the notice of
cessation of service of the appellant-writ
petitioner. Thus, when the Amending Act,
namely U.P. Act No. 1 of 1993, which
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
354
inserted
section 33-B in the U.P.
Secondary Education Services Selection
Board Act 1982, came into force w.e.f.
7.8.93, the appellant-writ petitioner would
be treated to be continuously serving the
institution
from
the
date
of
his
appointment till the commencement of the
Amending Act and is thus, entitled for
being
considered
by
the
Selection
Committee constituted under sub-section
[2] of Section 33-B of the Act in
accordance with law. The decision of the
Hon'ble Supreme Court in the case of
Committee of Management, Arya Nagar
Inter College, Kanpur (supra) would not
be applicable to the facts of the present
case, since the appellant-writ petitioner
had
continued
in
service
in
the
institution/college without any let or
hinderance by any of the authorities and
his services was never terminated by the
management or by the District Inspector
of Schools.

14. In view of the foregoing
discussions, the special appeal succeeds
and is allowed. The respondent no. 1 is
directed to refer the matter relating to the
grant of substantive appointment to the
appellant-writ petitioner to the Selection
Committee constituted under sub-section
[2] of Section 33-B of U.P. Secondary
Education Services Selection Board Act,
1982 and till such time any decision is
taken
by
the
said
committee,
the
appellant-writ petitioner be permitted to
continue on the post in question and be
paid salary. However, the parties shall
bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: THE ALLAHABAD: 10.5.2002

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

Civil Misc. Writ Petition No. 21328 of 1999

Chandan Singh Rathi

...Petitioner
Versus
District Magistrate, Gautam Budh Nagar
and another

 ...Opposite Parties

Counsel for the Petitioner:
Sri M.D. Singh

Counsel for the Respondents:
S.C.

Constitution of India- Article 226- the
petitioner has not been furnished of the
documents which he was demanding
during the course of enquiry- since in
this case no regular and proper inquiry
was held nor was subsistence allowance
paid hence in these circumstances, it is
clear that the petitioner had not been
afforded a fair opportunity much less a
reasonable
opportunity
to
defend
himself that has resulted in violation of
principle of natural justice and fair play-
A
dismissal
order
being
major
punishment has serious consequences
and
should
be
passed
only
after
complying with the rules of natural
justice.
The
inquiry
report
is
not
sustainable and therefore it cannot be
relied, upon therefore, the dismissal
order dated 30.11.1998 is liable to be set
aside.

(Held in para 23).

Keeping in view the gravity of the
charges against the petitioner the State
Government is at liberty to make inquiry
afresh and to conclude the inquiry
preferably within six months from the
date of receipt of the certified copy of
this order, in accordance with the law