# Raj Pal v. Dist. Inspector Of Schools And. Ors

- **Citation:** (2013) 1 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-12
- **Case number:** Civil Misc. Writ Petition No. 7562 of 2013
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-pal-v-dist-inspector-of-schools-and-ors-42441
- **Pages:** 4

## Headnote

U.P. Intermediate Education Act 1921,
Chapter III Regulation 2-appointment by
promotion post of class III employeeD.I.O.S. held as petitioner does not
possess typing test as required by
Group-D Employees Service Rules in U.P.
Subordinate Offices 2001-can not be
appointed and R-4 already appointed no
compassionate
ground-hence
no
vacancy-held-D.I.O.S. Can not borrow
qualification other than Act-by travelling
beyond authority-order quashed-D.I.O.S.
To consider appointment of R-4 in any
other institution.

Held: Para-16

In the aforesaid circumstances, the
District
Inspector
of
Schools
has
travelled
beyond
his
authority
in
invoking the rules meant for subordinate
services of the state government for the
purpose of qualification to the extent as
indicated in the impugned order which is
unjustified. The order, therefore, having
proceeded on an erroneous assumption
of law cannot be sustained.

Case Law discussed:
2000 Volume 2 ESC Page 820

## Text

1 All] Raj Pal Vs. Dist. Inspector Of Schools And. Ors.
229
relation
to
possessing
a
higher
qualification.

13. For the reasons aforesaid the
contention raised by the learned counsel
for the petitioners cannot be accepted.

14. The writ petition is accordingly
dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 7562 of 2013

Raj Pal

 ...Petitioner
Versus
Dist.Inspector of Schools And Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C.
Sri Prabhakar Awasthi

U.P. Intermediate Education Act 1921,
Chapter III Regulation 2-appointment by
promotion post of class III employeeD.I.O.S. held as petitioner does not
possess typing test as required by
Group-D Employees Service Rules in U.P.
Subordinate Offices 2001-can not be
appointed and R-4 already appointed no
compassionate
ground-hence
no
vacancy-held-D.I.O.S. Can not borrow
qualification other than Act-by travelling
beyond authority-order quashed-D.I.O.S.
To consider appointment of R-4 in any
other institution.

Held: Para-16

In the aforesaid circumstances, the
District
Inspector
of
Schools
has
travelled
beyond
his
authority
in
invoking the rules meant for subordinate
services of the state government for the
purpose of qualification to the extent as
indicated in the impugned order which is
unjustified. The order, therefore, having
proceeded on an erroneous assumption
of law cannot be sustained.

Case Law discussed:
2000 Volume 2 ESC Page 820

(Delivered by Hon'ble Amreshwar Pratap
Sahi,J.)

1. Heard Sri Indra Raj Singh, learned
counsel for the petitioner, Sri Prabhakar
Awasthi, learned counsel for the respondent
No.4 and the learned Standing Counsel for
the Respondent No.1 and 2.

2. The contest in this petition is in
relation to post of a clerk (class 3 post) in an
Intermediate College governed by the
provisions
of
the
U.P.
Intermediate
Education Act, 1921 and the regulations
framed thereunder.

3. The petitioner is a Class-IV
employee who is seeking promotion on the
said post in terms of Chapter 3 Regulation2
of the Regulations framed under the 1921
Act.

4. He is aggrieved by the direction of
the District Inspector of Schools ordering
appointment of the respondent no.4 against
the post available in the institution on
compassionate basis in terms of the
regulation aforesaid. The petitioner contends
that there is only one post of Class-III
available in the institution which has to be
filled up by way of promotion keeping in
view the law laid down by this Court in the
case of Jai Bhagwan Singh Vs. District
Inspector of Schools, Gautambudh Nagar
and others 2006 volume 9 ADJ Page 292.
230 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

5. It is further his contention that a
post of promotion cannot be filled up by
way of direct recruitment and, therefore,
the recommendation of the Respondent
No.4
for
being
appointed
on
compassionate basis being one under the
direct recruitment process, cannot be
permitted as per the law laid down in the
case of Hiraman Vs. State of U.P. and
others AIR 1997 SC Page 3288.

6. The petitioner contends that while
his claim is still under consideration
before the committee of management, the
District Inspector of Schools straight
away passed an order on 19th September,
2012 appointing the respondent No.4 on
compassionate
basis.
Aggrieved
the
petitioner filed writ petition no. 57563 of
2012 that was disposed of by this Court
on 5th November, 2012. A copy of the
judgment is Annexure-7 to the writ
petition. The District Inspector of Schools
was called upon to take a fresh decision in
the matter.

7.

Accordingly,
the
District
Inspector of Schools by the impugned
order dated 26th January, 2013 has
proceeded to hear the parties including the
committee of management and has passed
the impugned order non-suiting the
petitioner on the ground that the petitioner
does not possess the knowledge of typing
in terms of Group-D Employees Service
Rules in the Uttar Pradesh Subordinate
Offices, 2001. The District Inspector of
Schools has relied on the government
order dated 22nd December, 2001 to
record the said finding.

8. Sri Indra Raj Singh, learned
counsel for the petitioner, submits that the
said rules are not applicable inasmuch as
they have been framed under Article 309
of the Constitution of India which is
meant for government servants and the
same have not been applied either by way
of reference or through any statutory
provision in the case of Class-III
employees
of
privately
managed
institutions covered under the 1921 Act.
Sri Singh has invited the attention of the
Court to Chapter III Regulation 2 as also
the provision of qualification required for
the said purpose and dealt with by a
learned Single Judge of this Court in the
case of M.P. Chaukidar Sardar Ballabh
Bhai Junior High School Vs. District
Basic Education Officer, Fatehpur and
others, 2000 Volume 1 LB ESR Page 969.
He has further relied on the Division
Bench judgment in the case of Rajiv
Kumar and others Vs. State of U.P.
reported in 2011 Volume 2 ESC Page 820
to substantiate the submission that the
2001 Rules as relied upon by the District
Inspector of Schools is not applicable.

9. Replying to the aforesaid
submission Sri Prabhakar Awasthi for the
respondent no.4 states that he does not
propose to file any counter affidavit and
the matter be disposed of on merit
inasmuch as the respondent no.4 is
otherwise also entitled for appointment, if
not in this institution, then in some other
institution of the District as per the
regulations contained in Chapter-III.

10. Learned standing counsel also
does not propose to file any counter
affidavit as the issue involved is purely
legal. In the aforesaid circumstances, it is
not necessary to issue notice to the
Respondent
No.3,
Committee
of
Management, at this stage inasmuch as
the matter will have to be considered by
the District Inspector of Schools once
1 All] Raj Pal Vs. Dist. Inspector Of Schools And. Ors.
231
again in view of the nature of the order
that is proposed to be passed.

11. Having examined the provisions
as relied upon by the learned counsel for
the parties and having considered the
submissions raised as well as the
decisions applicable to the controversy,
the post had to be filled by way of
promotion as already observed by the
learned Single Judge in the judgment
dated 5.11.2012. The decision in the case
of Jai Bhagwan Singh (supra) was binding
on the District Inspector of Schools.

12. The District Inspector of Schools
has, however, non suited the petitioner on
the
ground
of
not
possessing
the
qualification of typing. For this reliance
has been placed by the District Inspector
of Schools on the notification dated
22.12.2001 which has been placed by Sri
Awasthi before this Court. I have perused
the same and it is more than clear that the
said notification is in relation to Group-D
employees of the subordinate offices of
the State Government. The said rules are,
therefore, in relation to such employees
and covered by Article 309 of the
Constitution of India.

13. The institution where the
appointment or promotion is being
claimed by the petitioner is a privately
managed institution governed by the U.P.
Intermediate Education Act, 1921 where
Government Service Rules have not been
made applicable to this extent as opined
by the District Inspector of Schools. In the
absence of any provision enforcing the
government order dated 22.12.2001 in
privately
managed
institutions,
the
District Inspector of Schools clearly fell
into error by invoking the same for the
purpose of adjudicating the qualification
the petitioner.

14. In the considered opinion of the
Court the District Inspector of Schools
could
not
have
borrowed
the
qualifications in relation to government
servants for the purpose of adjudicating
the eligibility conditions as involved in
the present controversy. To that extent the
Division Bench judgment in the case of
Rajiv Kumar (supra) clearly comes to the
aid of the petitioner.

15. Sri Awasthi submits that the
correctness of the said decision has been
referred
for
an
authoritative
pronouncement by a Larger Bench. A
merely reference to a Larger Bench will
not take away the impact of the Division
Bench judgment aforesaid which is
binding on me.

16. In the aforesaid circumstances,
the District Inspector of Schools has
travelled beyond his authority in invoking
the rules meant for subordinate services of
the state government for the purpose of
qualification to the extent as indicated in
the impugned order which is unjustified.
The order, therefore, having proceeded on
an erroneous assumption of law cannot be
sustained.

17. Accordingly, the order dated
26.1.2012 is quashed. The writ petition is
allowed. The post which is being claimed
by the petitioner has to be filled up by
way
of
promotion
as
observed
hereinabove. Accordingly, the claim of
the petitioner will now be considered
against the said post in accordance with
the observations made hereinabove. The
District Inspector of Schools shall pass an
order within six weeks of the date of
232 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
presentation of a certified copy of this
order before him.

18. So far as the respondent No.4,
Sri Ajai Pal Singh is concerned, his
appointment by the District Inspector of
Schools
through
the
order
dated
19.9.2012 cannot be sustained insofar as it
relates to appointment on the post in
question in Lala Hariram Inter College,
Khudaganj, Shahjahan. The same is
accordingly set aside with a direction that
the claim of the respondent no.4 shall be
considered by the District Inspector of
Schools for being appointed in some other
institution where the vacancy is available
in accordance with the provisions of
Regulation 101 to 107 of the U.P.
Intermediate Education Act contained in
Chapter III thereof.

19. The writ petition is accordingly
allowed
---------

 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE ABHINAVA UPADHYA,J.

Civil Misc. Writ Petition No. 8308 of2013

Garahan Ram

...Petitioner
Versus
State Of U.P. Thru Secy. And Others

 ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Singh

Counsel for the Respondents:
C.S.C.

Essential Commodities Act 1955-State
Govt. issued U.P. Scheduled Commodities
Distribution
Order
2004-Power
of
suspension and cancellation of fair price
shop given by G.O. 30.09.2004-suspension
of fair price shop by D.S.O.-questioned on
ground in rural areas-D.S.O. Has no powerheld-misconceived
G.O.
30.09.2004
empowers the District Magistrate as well
as D.S.O. To carry out the inspection of fair
price shop in rural areas-and to take final
action
including
suspension
and
cancellation.

Held: Para-6
The
U.P.
Scheduled
Commodity
Distribution Order, 2004 has been issued
by the State Government in exercise of
powers under section 3 of the Essential
Commodities Act, 1955. Under the said
order of 2004, the State Government is
empowered to issue orders regulating
inspection and monitoring of the fair
price shops. The power of the State
Government is clearly provided for in
clauses 21 and 23 of 2004 Order. The
State Government having specifically
provided for empowering the District
Supply
Officer
and
the
District
Magistrate to take all action including
suspension
and
cancellation,
the
submission of the petitioner that the
District Supply Officer has no jurisdiction
to suspend the fair price shop agreement
is without any substance.

(Delivered by Hon'ble Ashok Bhushan,J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. By the consent of the counsel for
the parties, the petition is finally disposed
of.

3. By this writ petition, the
petitioner has prayed for quashing the
order dated 1.2.2013 passed by the
District Supply Officer by which order,