# Raj Pal Singh and another v. State of U.P

- **Citation:** (2009) 2 ILRA 697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-19
- **Case number:** Civil Misc. Writ Petition No. 3502 of 1994
- **Bench:** S.K. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-pal-singh-and-another-v-state-of-u-p-41429
- **Pages:** 7

## Headnote

Sri A.K. Sinha
Sri P.C. Shukla
Sri I.R. Singh
S.C.

U.P.
Secondary
Education
Service
Selection
Board
(IInd
Removal
of
Difficulties
Order)
1981-Adhoc
appointment or short term vacancy has
no right to continue after conversion of
short term vacancy into substantive
vacancy in view of full Bench case of
Pramila Misra.

Held: Para 22

However, as already held herein above,
after the retirement of Raj Bahadur
Singh, short term vacancy on the post of
lecturer in History has been converted
into a substantive vacancy on 30-62003. therefore, the petitioner cannot
claim any right to continue after 30-62003 in view of the aforementioned Full
Bench decision of this Court
Case law discussed:
(1997)2 UPLBEC 1329.

## Text

2 All] Raj Pal Singh and another V. State of U.P.

697
10. The appeal is allowed. The
impugned order dated 21.4.2009 and
subsequent proceedings in pursuance
thereof are set aside. The learned
Additional Sessions Judge is directed to
reconsider the matter and pass appropriate
order
afresh
in
the
light
of
the
observations made here in before, after
providing a reasonable opportunity to the
appellants to show cause as contemplated
by section 446 Cr.P.C.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2009

BEFORE
THE HON'BLE S.K. GUPTA, J.

Civil Misc. Writ Petition No. 3502 of 1994

Jai Prakash Singh

...Petitioner
Versus
District Inspector of Schools, Jaunpur
and another

 ...Respondents

Counsel for the Petition:
Sri R.N. Singh
Sri G.K. Singh
Sri S.N. Singh
Sri V.K. Singh

Counsel for the Respondents:
Sri A.K. Sinha
Sri P.C. Shukla
Sri I.R. Singh
S.C.

U.P.
Secondary
Education
Service
Selection
Board
(IInd
Removal
of
Difficulties
Order)
1981-Adhoc
appointment or short term vacancy has
no right to continue after conversion of
short term vacancy into substantive
vacancy in view of full Bench case of
Pramila Misra.

Held: Para 22

However, as already held herein above,
after the retirement of Raj Bahadur
Singh, short term vacancy on the post of
lecturer in History has been converted
into a substantive vacancy on 30-62003. therefore, the petitioner cannot
claim any right to continue after 30-62003 in view of the aforementioned Full
Bench decision of this Court
Case law discussed:
(1997)2 UPLBEC 1329.

(Delivered by Hon'ble S.K. Gupta, J.)

1. This writ petition had been filed
inter- alia for the following reliefs:

(i) Issue a suitable writ, order or
direction, in the nature of CERTIORARI
quashing the order dated 18-10-1993

(ii) To issue a suitable writ, order or
direction in the nature of mandamus
directing
the
respondents
to
make
payment of salary to the petitioner
regularly along-with all arrears on that
account"

2. The brief facts enumerated in the
present writ petition are as follows:

3.

Panchsheel
Inter
College
Fatehganj, Jaunpur, (hereinafter referred
to as "institution") is a duly recognized
institution and is governed by the
provision of U.P. Secondary Education
Services
Commission
and
Selection
Board Act, 1982 and the Rules framed
thereunder. The post of Principal fell
vacant in the institution on 30-6-1993 on
account of retirement of one Sri Raj
Bahadur Singh.

4. The committee of management
(in short "management") had already
698 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

notified the vacancy of the post of
Principal to the Commission and it
therefore promoted one Sri Raj Bahadur
Singh, senior most lecturer as Principal on
adhoc basis. On account of adhoc
promotion of Sri Raj Bahadur Singh to
the post of Principal, the post earlier
occupied by him i.e. the post of lecturer in
History fell vacant. The Committee of
management proceeded to fill up the post
of lecturer on adhoc basis under the
provisions
laid
down
under
U.P.
Secondary Education Service Selection
Board (IInd Removal of Difficulties
Order) 1981 ( hereinafter referred to as
Second Removal of Difficulties Order).

5. The Committee of management
thereafter informed the District Inspector
of Schools, Jaunpur (in short " DIOS")
about the aforesaid vacancy and also
advertised the post in question.. In
pursuance of the aforesaid advertisement
several candidates including the petitioner
applied and were called for interview,
which took place on 05-9-1993. A merit
list was prepared on the basis of quality
point marks and the petitioner was found
to be the best candidate amongst all the
applicants.
The
committee
of
management
thereafter
passed
a
resolution in favour of the petitioner on
08-9-1993 and thereafter sent the papers
regarding selection of the petitioner to the
DIOS on 29-9-1993. The papers were
duly received in the office of DIOS
Jaunpur on the same day i.e. 29-9-1993.
The DIOS however, did not pass any
order in the matter as required under the
provisions laid down in Second Removal
of Difficulties Order.

6. After waiting for a period of more
than one week, the Committee of
management issued an appointment letter
in favour of the petitioner on 10-10-1993.
In pursuance of the appointment letter, the
petitioner joined duties on 11-10-1993 .
The DIOS, Jaunpur however on 18-101993 passed an order rejecting the
proposal submitted by the management
regarding appointment of the petitioner on
the post in question on the ground that the
management has no power to make
appointments on the post in question in
view of the Ordinance dated 14-7-1992,
wherein only the selection committee as
provided therein has been empowered to
make appointment . Therefore, the DIOS
was of the opinion that the alleged
appointment of the petitioner was in
contravention
of
U.P.
Secondary
Education
Service
Commission
and
Selection Board Act, 1982 ( in short "Act,
1982").

7. This Court by an interim order
dated 31-1-1994 inter- alia had passed the
following order:

"In the meanwhile in case the short
term vacancy against which the petitioner
had been appointed on 10-10-1993 could
not be filled up by any promotion from
the next below grade and there has not
been any infirmity in following the
procedure for making the appointment
claimed by the petitioner, in that case the
operation of the impugned order dated 1810-1993 shall remain stayed and the
petitioner will be entitled to the payment
of salary hence forth admissible to a
lecturer provided he has been discharging
duties attached to the office.
The payment of salary made if any
shall however, remain subject to the final
result of the writ petition."

8. The counter affidavit dated 30-32008, the supplementary Counter affidavit
2 All] Jai Prakash Singh V. D.I.O.S., Jaunpur and another

699
dated 18-12-2008 and the supplementary
affidavit dated 22-1-2009 have been filed
by the management respondent no.,2,
wherein the impugned order passed by
respondent no.1 has been justified. In the
aforementioned affidavits inter- alia it has
been stated that Raj Bahadur Singh,
lecturer in History who was promoted to
the post of Principal also retired on 30-62003, as such the post of lecturer in
History
in
the
institution
became
substantive on 30-6-2003 and it no longer
remained a short term vacancy. Therefore
the petitioner who was appointed on
adhoc basis against short term vacancy
ceased to have any right to continue
against the substantive vacancy. It has
been further stated that respondent no.2
notified the vacancy on the post of
Lecturer in History to the Selection
Commission on 5-7-2003. In pursuance of
the same one Ajit Kumar Singh was
selected by the Selection Board and
appointment letter dated 28-10-2008 was
issued in favour of Ajit Kumar Singh by
the Committee of management of the
institution and he joined the post of
lecturer in History in the institution on 3110-2008 . However, the DIOS Jaunpur in
connievance with the petitioner sent a
letter to the Selection Board to adjust Sri
Ajit
Kumar
Singh
in
some
other
institution as the petitioner was working
and getting, salary under the interim order
dated 31-1-1994 of this Court . It has been
further alleged in the aforementioned
affidavits that in pursuance of the letter of
the DIOS the Selection Board adjusted
Ajit Kumar Singh in Ajhurai Intermediate
College, Dharmraj Ganj Sherwa district
Jaunpur by letter dated 31-12-2008. As
soon as Ajit Kumar Singh came to know
of the said order dated 31-12-2008 passed
by the Selection Board, he immediately
approached the selection Board, informed
it that he has already joined the post of
lecturer in History in the institution on 3110-2008, therefore, his adjustment in
another institution is illegal . Selection
Board, consequently by letter dated 12-12009, cancelled his earlier order of
adjustment dated 12-1-2009 . Copy of the
order
dated
31-12-2008
has
been
appended as ANNEXURE-1 to the
affidavit filed by respondent no.2.

9. Heard Sri G.K. Singh, learned
counsel for the petitioner, Sri A.K. Sinha,
learned counsel for the respondent no.2
and the learned Standing counsel for the
respondent no.1 and perused the record.

10. The post of Principal fell vacant
in the institution on 30-6-1993 on account
of retirement of one Raj Bahadur Singh. It
has also not been disputed by the
respondent no.2 that the short term
vacancy on the post of lecturer in History
had occurred on account of promotion of
one Raj Bahadur Singh to the post of
Principal on adhoc basis. Since the
vacancy caused on the post of lecturer in
History, was short term vacancy, it was
governed by the provisions of Second
Removal of Difficulties Order.

11. A bare perusal of the impugned
order clearly reveals that the respondent
no.1 had treated the vacancy that arose on
the post of lecturer in History as
substantive vacancy and had proceeded
on the assumption that the adhoc
appointment of the petitioner on the post
of lecturer in History was not on short
term vacancy, under the provisions of
IInd Removal of Difficulties Order, but it
was an appointment under section 18 of
Act, 1982. Therefore, the DIOS Jaunpur
was of the view that selection of the
petitioner should have been made by the
700 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Selection committee as constituted in
accordance with Ordinance dated 14-71992( whereby Section 18 of the Act
1982 was amended) and not by the
management.

12.

Now
the
question
for
determination is whether the adhoc
appointment of the petitioner was under
the provision of the IInd Removal of
Difficulties Order or it was under section
18 of the Act.

13. The Second Removal of
Difficulties Order provides that short term
vacancy
is
the
vacancy
which
is
substantive and is of limited duration.
There is no dispute that the vacancy on
the post of lecturer in History fell vacant
on account of adhoc promotion of one Raj
Bahadur Singh to the post of Principal. As
such in accordance with IInd Removal of
Difficulties Order vacancy was not
substantive but was short term vacancy
and the provisions of IInd Removal of
Difficulties Order would have been
applicable and the provision of Section 18
of Act, 1982 had no application, as the
vacancy of the post of lecturer in History
was not substantive. The appointment of
the petitioner was on short term vacancy,
therefore the Committee of management
was fully empowered to appoint the
petitioner on the said short term vacancy
in accordance with Clause (2) & (3) of
IInd Removal of Difficulties Order. Since
the appointment of the petitioner was not
under section 18 of the Act, 1982,
Selection committee as provided under
the said Ordinance, had no role to play.

14. Learned counsel for the
respondents has vehemently argued that
provision
of
Second
Removal
of
Difficulties Order has not been complied
with by the
management and
the
appointment has been made without
approval of the DIOS Jaunpur . As such
the order is illegal. I do not subscribe to
the view of learned counsel for the
respondents.

15. To appreciate the contentions of
the parties it would be useful to refer to
clause (1) (2) and (3) of Second Removal
of Difficulties Order, which is in the
following terms:

"Procedure for filling up short term
vacancies:
(1) If short term vacancy in the post of a
teacher, caused by grant of leave to him
or on account of his suspension duly
approved by the District Inspector of
Schools or otherwise shall be filled by the
Management
of
the
institution,
by
promotion of the permanent senior most
teacher of the institution in the next lower
grade.
The
Management
shall
immediately inform the District Inspector
of Schools of such promotion along with
the particulars of the teacher so promoted.

(2) Where any vacancy referred to in
clause (1) cannot be filled by promotion
due to non availability of a teacher in the
next lower grade in the institution,
possessing
the
prescribed
minimum
qualifications, it shall be filled by direct
recruitment in the manner laid down in
clause (3)

(3) (i) The management shall intimate the
vacancies to the District Inspector of
Schools and shall also immediately notify
the same on the notice board of the
institution, requiring the candidates to
apply to the Manager of the institution
along with particulars vein in Appendix-
B to this order. The selection shall be
2 All] Jai Prakash Singh V. D.I.O.S., Jaunpur and another

701
made on the basis of quantity point marks
specified in the Appendix to the Uttar
Pradesh Secondary Education Services
Commission (Removal of Difficulties)
Order, 1981 issued with Notification No.
Ma-1993/ XV74 (79) -1981 dated 31st
July 1981 hereinafter to be referred to as
the First Removal Difficulties Order,
1981. The compilation of quality point
marks shall be done under the personal
supervision of the Head of institution."

(ii) The names and particulars of the
candidate selected and also of other
candidates and the quality point marks
allotted to them shall be forwarded by the
Manager to the District Inspector of
Schools for his prior approval.

(iii) The District Inspector of Schools
shall communicate his decision within
seven days of the date of particulars by
him failing which the Inspector will be
deemed to have given his approval.

(iv) On receipt of the approval of the
District Inspector of Schools or as the
case
may
be,
on
his
failure
to
communicate his decision within seven
days of the receipt of papers by him from
the manager, the Management shall
appoint the selected candidate and an
order of appointment shall be issued
under the signature of the Manager."

16. Learned counsel for the
petitioner has argued that the procedure as
prescribed
in
Second
Removal
of
Difficulties
Order,
has
been
fully
complied with and has drawn my
attention to few paragraphs of the writ
petition. For ready reference paragraphs
7, 11, 12 and 13 of the writ petition are
quoted below:

"7- That the Committee of management
thereafter informed the District Inspector
of Schools about the aforesaid vacancy
and also advertised the post in question. A
true copy of the advertisement dated 15-81993 is being filed as Annexure-1 to the
writ petition.

11- That the committee thereafter sent the
papers
regarding
selection
of
the
petitioner to the DIOS on 29-9-1993 .It is
pertinent to point out that the papers were
duly received in the office of DIOS on the
same date i.,e, on 29-9-1993.

12- That the DIOS however did not pass
any orders in the matter as required
under the provisions laid down in the
Second Removal of Difficulties Order.

13- That after waiting for a period of
more than one week, the committee of
management issued appointment order in
favour of the petitioner on 10-10-1993. A
true copy of the order dated 10-10-1993
is being filed herewith and marked as
Annexure-4 to this petition."

17. In the Counter affidavit filed by
the State the respondent no.1 has not
denied the aforesaid averments that
management had sent papers regarding
selection of the petitioner to the DIOS
Jaunpur on 29-9-1993. However, the
DIOS did not pass any order or
communicated his decision within seven
days. As such in view of clause- 3 of
Second Removal of Difficulties Order, the
DIOS will be deemed to have given his
approval.

18. Thus the impugned order passed
by DIOS can not stand the scrutiny of law
and the view of DIOS Jaunpur cannot be
sustained. It cannot be said that the
702 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

appointment of the petitioner in the post
of Lecturer in History in short term
vacancy, is contrary to the provisions of
Second Removal of Difficulties Order.
The impugned order dated 18-10-1993 is
hereby quashed.

19. Let us now proceed to examine
the second prayer made by the petitioner
in the writ petition which is as under:

"To issue a writ, order or direction in
the nature of mandamus directing the
respondents to make payment of salary to
the petitioner regularly along with all
arrears on that account."

20. It has not been disputed by the
respondents that Raj Bahadur Singh the
lecturer in History (Adhoc Principal) also
retired on 30-6-2003, as such, vacancy of
lecturer in History became substantive.

21. It has been vehemently argued
by learned counsel for respondent no.2,
that in view of the Full Bench decision in
the case of Pramila Mishra Vs. Deputy
Director of Education, Jhansi Division,
Jhansi, and other (1997)2 UPLBEC
1329, petitioner, who was appointed on ad
hoc basis in a short term vacancy has no
right to continue against substantive
vacancy after the short term vacancy of
lecturer in History converted into a
substantive vacancy on 30-6-2003. The
Full Bench in the case of Smt. Pramila
Mishra (supra) has held as follows:

"24-Summing up our conclusions in
the light of the discussions in the
foregoing paragraphs, we hold 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 along with other eligibility
candidates for adhoc appointment in the
substantive vacancy if he possesses the
requisite qualifications. Consequent, upon
the view taken by us, as noted above, we
hold that the decisions of this Court, like
Km. Meena Singh's case (supra) and
other cases taking contrary view, are
declared to be no longer good law."

22. It has not been disputed by the
respondents that Raj Bahadur Singh,
lecturer in History who was promoted on
adhoc basis to the post of Principal in the
institution has now retired on 30-6-2003
as such short term vacancy of lecturer in
History in the institution has been
converted into a substantive vacancy on
30-6-2003. Therefore, in view of the Full
Bench decision in the case of Smt.
Pramila Mishra (supra) the petitioner did
not have any right to continue after 30-62003. It has also come on record that this
substantive vacancy was also notified to
the Selection Board and one Ajit Kumar
Singh was selected by the Selection Board
although the legality of the appointment
of Ajit Kumar Singh ,in the institution is
sub- judice before this Court in Writ
Petition No.4734 of 2009. Therefore,
since the matter with regard to the
appointment of Ajit Kumar Singh in the
institution is under consideration before
this court, it is not desirable to make any
observation in this writ petition regarding
the claim of Ajit Kumar Singh. However,
as already held herein above, after the
retirement of Raj Bahadur Singh, short
term vacancy on the post of lecturer in
2 All] Jai Prakash Singh V. D.I.O.S., Jaunpur and another

703
History has been converted into a
substantive
vacancy
on
30-6-2003.
therefore, the petitioner cannot claim any
right to continue after 30-6-2003 in view
of
the
aforementioned
Full
Bench
decision of this Court .

23. Summing up my conclusions in
the light of the discussions in the
foregoing paragraphs, I hold that the
initial appointment of the petitioner on
adhoc basis to the post of lecturer in
History was on short term vacancy in
accordance with Second Removal of
Difficulties Order, 1981. Thus, the initial
appointment of the petitioner dated 10-101993 is held valid. However, when the
short term vacancy in the post of lecturer
in History was converted into substantive
vacancy on 30-6-2003 after the retirement
of Raj Bahadur Singh, the petitioner
ceased to have any right to continue on
the said post. As such, the continuance of
the petitioner in the institution after 30-62003 cannot be said to be legal or proper
in view of the Full Bench decision of this
Court in Pramila Misra (supra). Even
though the petitioner had no claim to
continue in the post of lecturer in the
institution, the salary or any renumeration
paid to him however may not be
recovered. Henceforth, the petitioner will
neither be entitled to continue in the post
of lecturer in History in the institution nor
to any salary.

24. In the result writ petition is
partly allowed subject to the aforesaid
observations.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 1246 of 1993

Jokhu Lal

...Petitioner
Versus
The
District
Inspector
of
Schools,
Allahabad and others ...Opposite Parties

Counsel for the Petitioner:
Sri Sankatha Rai
Sri H.K. Mishra
Sri S.S. Shukla
Sri Jagannath Singh
Sri Surendra Nath Singh

Counsel for the Respondents:
Sri Ajai Kumar Singh
Sri Lal Chandra Srivastava
S.C.

U.P. High School and Inter mediate
Colleges (Payment of Salaries of Teacher
and
other
Employees)
Act,
1971appointment of petitioner as junior clerk
in year 1977-in junior High School-duly
approved by Basic Education Officerapproval order become final-after up
gradation of institution from junior High
School to Uchchatar Madhyamik Vidyalay
in the year 1991-service of petitioner
stood confirmed-payment of salary dined
on ground petitioner being nephew of
manager, appointment itself illegal-mis
conceived
when
petitioner
was
appointed the provision of Inter Mediate
Education
Act
were
not
applicableprohibition
on
appointment
came
existence's in the year 1984-can not be
made
applicable
with
retrospective
effect-petitioner regularly working and
paid salary-direction for difference of