# Raj Bahadur Upadhyay v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 866
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-05
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-bahadur-upadhyay-v-state-of-u-p-and-others-42187
- **Pages:** 5

## Headnote

C.S.C.
Sri Siddharth Singh
Sri Santosh Kumar Srivastava

U.P.
Secondary
Education
Services
Board, Act 1982-Section 18-short term
vacancy of L.T. Grade teacher-after
requisition and advertisement in two
national
newspapers-disapproved
by
DIOS-on
ground
vacancy
advertised
without reference of Board-held-in view
of D.B. Case of Daya Shanker Shukla
short
term
vacancy
needs
urgent
consideration-if not filled up in time
teaching
intensity
suffers-as
such
admitted legal position-order passed by
DIOS can not survive-quashed.

Held: Para 12

In view of the aforesaid legal position
and the facts admitted in the impugned
order itself, the impugned order dated
2 All] Raj Bahadur Upadhyay V. State of U.P. and others
867
30.10.2006
therefore,
is
absolutely
illegal and cannot survive.
Case law discussed
2010 (10) ADJ 829 (DB)

## Text

866 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
under law, cannot be included in the
holding their father. The claim is supported
in law by the pronouncement of a division
bench of this Court in the case of Ram
Chander & another Vs. Commissioner
& Director of Consolidation, Meerut
and others, 1969 AWR Pg. 686. The
reason is that the fact of the sons being
born prior to abolition of Zamindari and
their date of birth remains undisputed. The
division bench further rules that an
omission to record the names of the sons
alongwith their father does not deprive
them of their title over the land which
exists by operation of Section 18 of the
U.P. Z.A. & L.R. Act, 1950. It is also
undisputed that the land is ancestral Sir
Khudkasht acquired by a common ancestor
from whom inheritance is claimed.

26. The parties may not have been at
variance during consolidation operations
and not having got their shares separated or
mutated in records does not take away
their right to assert the same so long as
their title has not extinguished. As
explained above their title survived and did
not evaporate merely because the entries
were not corrected which aspect is also
covered by the bench decision in the case
of Ram Chander (supra) referred to
hereinabove. The sons in their own
independent right continued as tenure
holders and the assertion of such rights by
them is not barred by applying Section 49
of the U.P. Consolidation of Holdings Act,
1953 as explained in the bench decision of
Shri Ram (supra). As a matter of fact the
reasoning
of
the
authorities
is
misconceived while applying Section 49 of
the 1953 Act inasmuch as the proceedings
under the Ceiling Act are not to determine
such title that is governed by a separate
procedure under the U.P. Z.A. & L.R. Act,
1950 or the U.P. C.H. Act, 1953.

27. For the foregoing reasons and in
view of the discussion made hereinabove,
the orders impugned dated 31.8.1994 and
12.1.1995 are quashed.

28. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDER
DATED: ALLAHABAD 05.07.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition no. 14850 of 2007

Raj Bahadur Upadhyay
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.D. Shukla
Sri Amit Singh
Sri B.M. Chaturvedi

Counsel for the Respondents:
C.S.C.
Sri Siddharth Singh
Sri Santosh Kumar Srivastava

U.P.
Secondary
Education
Services
Board, Act 1982-Section 18-short term
vacancy of L.T. Grade teacher-after
requisition and advertisement in two
national
newspapers-disapproved
by
DIOS-on
ground
vacancy
advertised
without reference of Board-held-in view
of D.B. Case of Daya Shanker Shukla
short
term
vacancy
needs
urgent
consideration-if not filled up in time
teaching
intensity
suffers-as
such
admitted legal position-order passed by
DIOS can not survive-quashed.

Held: Para 12

In view of the aforesaid legal position
and the facts admitted in the impugned
order itself, the impugned order dated
2 All] Raj Bahadur Upadhyay V. State of U.P. and others
867
30.10.2006
therefore,
is
absolutely
illegal and cannot survive.
Case law discussed
2010 (10) ADJ 829 (DB)

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. By this writ petition the petitioner is
challenging the order dated 30.10.2006
whereby his appointment against the short
term vacancy of Assistant Teacher has been
disapproved by the respondent no.3, the
District Inspector of Schools, Azamgarh.

2. The facts of the case, in brief, are
that there is an institution by the name of
Janta Inter College Ahiraula, Azamgarh
(Institution). The institution is governed by
the U.P. Intermediate Education Act, 1921
and the U.P. Secondary Education (Services
Selection Boards) Act, 1982 and as also the
U.P. High Schools & Intermediate Colleges
(Payment and Salaries of Teachers and
other Employee) Act, 1971. One Vidyadhar
Upadhyay, Assistant Teacher in L.T.Grade
in the institution is stated to have proceeded
on leave on 24.12.1997 on account of ill
health. Leave was sanctioned by the
Committee of Management by order dated
27.12.1997 for three months. However,
even after the expiry of the said period,
Vidyadhar Upadhyay could not join his
duty. Subsequently he retired as such on
30.6.1998
on
attaining
the
age
of
superannuation. In the meantime to fill up
vacancy arising out on account of the non
joining of Sri Vidyadhar Upadhyay, the
Committee of Management advertised the
vacancy in two newspapers 'Aaj' and
'Dainik Jagran' both dated 29.12.1997.
Applications were invited and the petitioner
was also one of the applicants for the said
post. According to the petitioner, he is
M.A.(Sanskrit) and M.A. (Politics) as well
as he has done his B.A. in Education and he
is,
therefore,
fully
eligible
for
the
appointment as Assistant Teacher in L.T.
Grade against the post so advertised. The
Committee of Management considered the
candidature of the various candidates.
Thereafter, by its resolution dated 19.1.1998
finding the petitioner to be the best
candidate, granted ad hoc appointment to
the petitioner. The petitioner also joined the
post as Assistant Teacher in L. T. grade on
20.1.1998. Thereafter, papers relating to the
selection were forwarded by the Committee
of Management by its letter dated 20.1.1998
to the District Inspector of Schools,
Azamgarh.

3.

When
no
decision
was
communicated by the District Inspector of
Schools the petitioner filed a writ petition
no.14097 of 1998 in which notices were
issued and subsequently the writ petition
was disposed of by this Court on 18.5.1999
with a direction to the District Inspector of
Schools to decide the question of grant of
financial approval.

4. Again when no decision was taken
by the District Inspector of Schools the
petitioner was compelled to file Contempt
Petition No.3169 of 1999 in which notices
were issued on 12.9.2006. It is after the
issue of the notices in the contempt petition
that the District Inspector of Schools has
passed the order dated 30.10.2006, which is
impugned in the present writ petition.

5. I have heard Sri Amit Singh,
learned counsel appearing for the petitioner
and learned Additional Chief Standing
Counsel appearing for the respondent nos.1
to 4. No one appears for the Committee of
Management, respondent no.5 although the
name Sri Siddharth Singh has been shown
in the cause list in the array of the
respondents. List has been revised.
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

6. The submission of learned counsel
for the petitioner is that he was appointed
against the short term vacancy which
occurred on account of regular teacher, Sri
Vidyadhar
Upadhyay,
proceeding
on
medical leave. It is also submitted that the
appointment was made after the vacancy
had been advertised in two newspapers 'Aaj'
and 'Dainik Jagran' both published on
29.12.1997 and out of several applications
which were received, the candidature of the
petitioner was found to be most suitable and
thereafter
the
petitioner
was
issued
appointment
letter
on
19.1.1998
by
resolution
of
the
Committee
of
Management of the same date. The
petitioner also joined as Assistant Teacher
on 20.1.1998. His submission is, therefore,
that the selection of the petitioner has been
made
through
proper
procedure
by
advertising the vacancy in two newspapers
and therefore, the same cannot be faulted.
His further submission is that the regular
incumbent,
Sri
Vidyadhar
Upadhyay,
retired on 30.6.1998 on attaining the age of
superannuation, therefore, the vacancy
became a substantive vacancy and ever
since the petitioner has taken charge of the
post, no other selection has been held and
no other candidate selected by the Service
Selection Board has come to join the post.

7. The further submission of learned
counsel for the petitioner is that the
impugned order dated 30.10.2006 is bad in
law inasmuch as Section 18 of the Act,
1982 does not place any embargo upon the
powers of the Committee of Management to
make appointment against short term
vacancy without making any reference to
the Service Selection Board.

8. From a perusal of the impugned
order dated 30.10.2006 it appears that the
petitioner was appointed through proper
selection in which vacancy arising out of
the regular incumbent, Sri Vidyadhar
Upadhyay, proceeding on leave, had been
published in two newspapers 'Aaj' and
'Dainik Jagran' both dated 29.12.1997.
Along with the various other applicants, the
petitioner had also submitted an application
and after considering the candidature of the
candidates, the petitioner was found to be
best candidate and by the resolution of the
Committee of Management dated 19.1.1998
the petitioner was recommended for
appointment and a letter was also issued to
him. In pursuance of the resolution of the
Committee of Management the petitioner
also joined as Assistant Teacher, L. T. grade
on 20.1.1998. It is also the admitted position
that Sri Vidyadhar Upadhyay thereafter
never reported for joining and remained on
leave till 30.6.1998 on which date he retired
on attaining the age of superannuation.

9. In the impugned order it is also
stated that requisition was sent to the Uttar
Pradesh
Secondary
Education
Service
Selection
Board,
Allahabad
but
no
candidate has been selected so far. The
petitioner has been working as Assistant
Teacher, L.T.Grade since 20.1.1998

10. From the impugned order it is seen
that the ground on which the appointment
of the petitioner has been held to be bad was
that it was made by the Committee of
Management by advertising the vacancy in
two newspapers without reference to the
Uttar Pradesh Service Selection Board,
Allahabad and, therefore, such appointment
was bad in law being in violation of the
provisions of Section 18 of the Act, 1982
which provided that after coming the
enforcement
of
the
Act
1982
all
appointments shall be made only through
the Uttar Pradesh Service Selection Board.
2 All] Raj Bahadur Upadhyay V. State of U.P. and others
869

11. This aspect of the mater has
already been considered by the Division
Bench of this Court in the case reported in
2010 (10) ADJ 829 (DB) Daya Shankar
Misra vs. District Inspector of Schools and
others and the Division Bench while
interpreting the provision of Section 18 of
the ( Service Selection Board) Act, 1982
has held as follows:-

"29.The next question to be considered
which is interrelated is as to whether there
is any power with the management
surviving to make ad hoc appointments on
short term vacancies after insertion of
Section 33-E in the 1982 Act which
rescinded
the
various
Removal
of
Difficulties Orders issued. With regard to
this question two aspects have to be
considered. Firstly the effect of Section 32
of the 1982 Act, which provides that the
provisions of 1921 Act, the Rules and
Regulations made thereunder shall continue
to be in force for the purposes of selection,
appointment,
promotion,
dismissal,
removal, termination or reduction in rank of
a teacher, so far as they are not inconsistent
with the provisions of the 1982 Act or Rules
or Regulations made thereunder. Secondly
whether there is any power under the 1921
Act or the Regulations framed thereunder to
fill up short term vacancies.

30. We may note here with emphasis
that Section 32 of the 1982 Act uses the
words
selection,
appointment
and
promotion of a teacher. The words
selection, appointment and promotion will
include substantive as well as short term
vacancies. Further we have to see whether
there is any inconsistency or not in the
provisions of the two Acts and the Rules and
Regulations framed thereunder. We have
already held above that the power of the
Board to make selections is only with
regard to appointments against substantive
vacancies. There is no provision under the
1982
Act
for
making
selection
for
appointments against short term vacancies.

31. Under the 1921 Act, the procedure
for selection of teachers and head of the
institutions is laid down in section 16-E
thereof. Power of the management to fill up
short term vacancy having occurred on
account of leave extending for more than six
months or on suspension is specifically
provided in sub section 11 of Section 16-E
of the 1921 Act. Further Chapter-II of the
Regulations framed under the 1921 Act
deals with the appointments of heads of the
institutions and teachers. It refers to
Sections 16-E, 16-F and 16-FF of the 1921
Act. Regulation 9 of the said Chapter
confers the power on the management to fill
up the short term vacancies arising out of
leave exceeding period of six months and
suspension of a teacher having been
approved. The management thus was vested
with the power under the 1921 Act and the
Regulations framed thereunder to fill up
short term vacancy. Further as there is no
provision under the 1982 Act or the Rules
and Regulations framed thereunder with
regard to filling up of short term vacancies,
it can be safely concluded that there is no
question of any inconsistency in the two
Acts or the Rules and Regulations framed
thereunder for filling up short term
vacancies. Thus taking aid of Section 32 of
the 1982 Act the definition of vacancy given
in 1998 Rules and the provisions contained
in Section 16-E(11) of the 1921 Act and
Chapter-II of the Regulations framed under
the 1921 Act, the management of an
institution is vested with the power to fill up
short term vacancies.

32.A Full Bench of this Court in the
year 1994 in the case of Radha Raizada
870 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(supra) while dealing with the various
provisions contained in the 1982 Act and
the 1921 Act, had laid down that no ad hoc
appointment could be made by the
management
against
the
substantive
vacancy in view of the provisions contained
in Sections 16 and 18 of the 1982 Act. It,
however, further held that only short term
vacancies could be filled up by the
management after following the due
procedure
prescribed
in
the
Second
Removal of Difficulties Order, which had
not been rescinded till then. After its
rescission in 1999 the power to fill up short
term vacancy of a teacher can be derived by
the management from section 16-E(11) of
the 1921 Act and regulation 9 of the
Chapter II of the Regulations framed under
the 1921 Act.

33.We have also dealt with the
practical aspect of the matter that in order
to maintain not only the discipline but also
the standard of education and commitment
enforced under the Constitution, regular
teaching is essential. For enforcing the
same, in the given circumstances and under
emerging
situations,
the
short
term
vacancies need to be given urgent attention.
If short term vacancies are not filled up in
time, the teaching would intensely suffer.
Apparently for this reason the Legislature
knowing fully well that selections will be
made by the Board, not for individual cases,
but at State level would result into long
durations, left the selection for short term
vacancies outside the purview of the
Board."

12. In view of the aforesaid legal
position and the facts admitted in the
impugned order itself, the impugned order
dated 30.10.2006 therefore, is absolutely
illegal and cannot survive.

13. The writ petition is allowed and
the impugned order dated 30.10.2006 is
quashed.

14. It is directed that the petitioner
will be entitled to full salary and other
emoluments on the post of Assistant
Teacher, L.T. grade month to month and in
case he has not been paid salary, he shall
also be entitled to arrears of salary as per
Rules.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 15560 of 2000

Ramesh Singh

 ...Petitioner
Versus
Gram Panchayat and others

 ...Respondents

Counsel for the Petitioner:
Sri Anil Sharma

Counsel for the Respondents:
Sri Anuj Kumar
C.S.C.

U.P.
Zamindari
Abolition
and
Land
reform
Act
1950-Section
122-BEjectement
order-ignoring
Decree
passed in Civil Suit in favor of petitionerpatta granted after realizing premium of
lease-categorical
finding
regarding
validity of patta and grant of lease-exparte Decree not recalled-subsequent
order
of
ejectment-held-illegalpossession of petitioner can not be
unauthorizes
one-impugned
order
quashed.

Held: Para 8

Even assuming that the decree was exparte,
the
respondents
could
have