# Ram Asis Chaudhary and another v. State of U.P. and others

- **Citation:** (2002) 3 ILRA 987
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-15
- **Case number:** Special Appeal No. 386 of 1998
- **Bench:** Shyamal Kumar Sen, C.J. R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-asis-chaudhary-and-another-v-state-of-u-p-and-others-40041
- **Pages:** 5

## Headnote

Sri Sabhajeet Yadav
Sri A.K. Gupta
Sri S.K. Lal
Sri Anand Kumar
S.C.

Constitution of India Article 226- Service
Law- appointment-at the time of initial
appointment at the age of 15 to 17
years- illegal plea about possessing
working experience for long spell of
time-not available.

Held- Para 10

The appointment of the appellants- writ
petitioners was void all initio. The
decision relied upon by the learned
Advocate for the writ petitioners that if
the appellants- writ petitioners have
been working for long years and have
acquired the qualifications subsequently,
would not be applicable in the present
case. In as much as, at the time of initial
appointment they were not major and
there was no provision for relaxing the
age.
Case law discussed:
http://www.allahabadhighcourt.nic.in
988 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
J.T.1993 (4) SC-143
1998 (2) UPLBEC-1237
J.T. 1995 (8) SC-533
1990 (3) SCC-655
AIR 1919 P.C.-129

## Text

http://www.allahabadhighcourt.nic.in
3 All] Ram Asis Chaudhary and another V. State of U.P. and others 987
counsel, as such, is devoid of merit and
cannot be accepted."

13. We are in respectful agreement
with the aforesaid decision. Moreover we
find that the Hon'ble Supreme Court in
the case of UPSRTC and another Vs.
Bashir Ahmad in Civil Appeal No. 3933
of 1991 decided on 5.10.1997 had held
that the pensionery benefits to the
employees must be calculated on the basis
that the age of retirement is 58 years.
Thus the contention that the appellant writ
petitioner was entitled to continue till he
attains the age of 60 years is not justified.
The reliance placed by Shri V.K. Barman
upon the decision of the learned Single
Judge of this Court in the case of Chandra
Kumar Shukla and the dismissal of the
Special Leave Petition by the Apex Court
would be of no assistance as the Division
Bench of this Court in the case of Lalta
Prasad and Sabhapati Singh (supra) have
held
that
those
State
Government
Employees who have been absorbed in
the service of the Corporation are also
liable to be retired at the age of 58 years
and the Apex Court while dismissing the
Special Appeal in the case of Chandra
Kumar Shukla has not decided any thing
on merits.

In view of the foregoing discussions
there is no merit in the Special Appeal
and is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2002

BEFORE
THE HON'BLE SHYAMAL KUMAR SEN, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 386 of 1998

Ram Asis Chaudhary and another

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

Counsel for the Appellants:
Sri Ashok Khare
Sri R.N. Singh
Sri R.G. Padia
Sri S.P. Shukla

Counsel for the Respondents:
Sri Sabhajeet Yadav
Sri A.K. Gupta
Sri S.K. Lal
Sri Anand Kumar
S.C.

Constitution of India Article 226- Service
Law- appointment-at the time of initial
appointment at the age of 15 to 17
years- illegal plea about possessing
working experience for long spell of
time-not available.

Held- Para 10

The appointment of the appellants- writ
petitioners was void all initio. The
decision relied upon by the learned
Advocate for the writ petitioners that if
the appellants- writ petitioners have
been working for long years and have
acquired the qualifications subsequently,
would not be applicable in the present
case. In as much as, at the time of initial
appointment they were not major and
there was no provision for relaxing the
age.
Case law discussed:
http://www.allahabadhighcourt.nic.in
988 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
J.T.1993 (4) SC-143
1998 (2) UPLBEC-1237
J.T. 1995 (8) SC-533
1990 (3) SCC-655
AIR 1919 P.C.-129

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

1. All these three special appeals
have been filed against the judgment and
order dated 1st May, 1998 passed by
learned single Judge in Civil Misc. Writ
Petition No. 33694 of 1997 whereby the
learned single Judge had dismissed the
writ petition.

2. Special Appeal No.386 of 1998
has been filed by Ram Ashish Chaudhary
and Siya Ram Yadav, whereas Special
Appeal No. 389 of 1998 has been filed by
Ram Sewak Warun and Ram Charan
Verma and Special Appeal No.456 of
1998 has been filed by Krishna Chandra
Chaudhary against the aforementioned
judgment.

3. Briefly stated the facts giving rise
to those present Special Appeals are as
follows:

4. All the appellants-writ petitioners
claimed to have been appointed as
teachers in the months of July and
August, 1977 in Sri Ram Janki Inter
College, Girdharpur, Kungai, District
Siddharthnagar (hereinafter referred to as
the "Institution") which was at the
relevant time, a Junior High School. The
Institution was upgraded as High School
and thereafter as Intermediate College in
November, 1989. It was brought on grantin-aid in the year 1996. It appears that the
District Basic Education Officer granted
approval to the appointment of the
appellants-writ petitioners some time in
the months of January and February,
1984. After its up gradation as High
School, the teachers of the Institution
including the appellants-writ petitioners
were absorbed as teachers of the High
School.
When
the
Institution
was
upgraded to an Intermediate College, the
District Inspector of Schools passed an
order dated 11.9.1991 absorbing all the
teachers working in the Institution,
including the appellants-writ petitioners.
By an order dated 27.3.1997, the Joint
Director of Education granted financial
sanction to the teachers and employees of
the Institution including the appellantswrit petitioners. It appears that the
Committee of Management filed Civil
Misc. Writ Petition No.9942 of 1997
which was disposed of by this Court vide
judgment and order dated 20th March,
1997 directing the Director of Education
to decide the representation of the
Committee of Management within a
specified time. The present appellantswrit petitioners filed Special Appeal No.
193 of 1997 which was disposed of vide
judgment and order dated 8th April, 1997
with certain directions regarding payment
of salary to the appellants. Pursuant to the
said directions given by this Court, the
Director of Education passed an order on
7.7.1997 holding that the appellants-writ
petitioners were not entitled for payment
of
salary.
Feeling
aggrieved
the
appellants-writ
petitioners
jointly
challenged the order dated 7.7.1997 by
filing Civil Misc. Writ Petition No. 33694
of 1997 which was dismissed by the
learned single Judge vide judgment and
order dated 1st May,1998. The judgment
and order dated 1st May, 1998 is under
challenge in these special appeals.

5. We have heard Sri R.N. Singh
and Dr. R.G. Padia, learned Senior
Advocates
for
the
appellants-writ
http://www.allahabadhighcourt.nic.in
3 All] Ram Asis Chaudhary and another V. State of U.P. and others 989
petitioners and Sri Sabhajeet Yadav,
learned Standing Counsel & Sri A.K.
Gupta,
learned
Advocate
for
the
Respondents.

6. Sri R.N. Singh, learned Senior
counsel submitted that the District Basic
Education Officer had approved the list of
teachers including the present appellantswrit petitioners vide order dated 6th
February, 1984 which is still in existence
and has not been cancelled or revoked so
far. He further submitted that after the
Institution was up graded to the High
School and thereafter to the Intermediate
College, the District Inspector of School
vide order dated 11th September, 1991
had absorbed all the teachers working in
the Institution including the appellantswrit petitioners which order is still in
existence and has not yet been cancelled
or revoked. Thus, it is not open to
question
the
appointment
of
the
appellants-writ petitioners. He further
submitted that initial defect in the
appointment
of
the
appellants-writ
petitioners, if any, stood cured by
subsequent orders passed by the District
Basic Education Officer and District
Inspector of Schools. According to him,
when the appellants-writ petitioners were
appointed in the year 1977, there was no
Rule governing the service conditions of
teachers and employees working in the
Junior High Schools and for the first time
the Rules were framed in February, 1978.
His further submission was that even after
coming into force of 1978 Rules, the
question of their appointments were
considered
by
the
District
Basic
Education Officer who granted approval
vide order dated 6th February, 1984.
Further, when the Institution was brought
under grant-in aid list, the District
Inspector of Schools had also approved
the absorption of the teachers and
employees including the appellants-writ
petitioners
vide
order
dated
11th
September, 1991. Thus, the appellantswrit petitioners get the status of teachers
of High School from 11th September,
1991 on which date, admittedly, they
were major and fully qualified. He further
submitted that if it is held that they are not
entitled for payment of salary after such a
long period, it would be too harsh as they
have been working on their respective
posts for the last more than 23 years. He
relied upon the decision of the Hon'ble
Supreme Court in Dr. M.S. Mudhol and
another Vs. Shri S.D. Halegkar and
others (JT 1993 (4) S.C. 143) wherein it
has been held that where there is nothing
on record to show that the person has
projected his qualifications other than
what
he
possessed,
the
selection
committee, for some reason or the other,
had thought it fit to choose him for the
post, it would be inequitous to make him
suffer for the same now. He also relied
upon a Division Bench decision of this
Court rendered in the case of Gaya
Prasad Srivastava Vs. High Court of
Judicature at Allahabad and others
(1998) 2UPLBEC 1237), wherein it has
been held that the competent authority
while appointing some one initially must
have taken into consideration in the
normal course of human business the
exigencies of service to employ him at 16
years of age or so, otherwise by act and
conduct the age is deemed to have been
relaxed. He further submitted that even if
the order of appointment, which has been
approved by District Basic Education
Officer and District Inspector of Schools,
is said to be illegal or void, it requires
cancellation and till such time it is not
cancelled, full effect is to be given. He
relied upon a decision of the Hon'ble
http://www.allahabadhighcourt.nic.in
990 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Supreme Court in State of Kerala vs.
M.K. Kunhikannan Nambiar Manjeri
Manikoth, Naduvil (dead) and others
(JT 1995 (8) S.C. 533), wherein it has
been held that even a void order or
decision rendered between parties cannot
be said to be non-existent in all cases and
in all situations. Ordinarily, such orders
will, in fact, be effective inter partes until
it is successfully challenged in higher
forum. Mere use of the word "void" is not
determinative of its legal impact. The
word "void" has a relative rather than an
absolute meaning. It only conveys the
idea that the order is invalid or illegal. It
can be avoided. There are degrees of
invalidity, depending upon the gravity of
the infirmity, as to whether it is,
fundamental or otherwise.

7. Dr. R.G. Padia, learned Senior
Advocate has adopted the arguments of
Sri R.N. Singh, learned Senior Counsel.

8. Sri Sabhajeet Yadav, learned
Standing counsel submitted that it is not
in dispute that on the date when the
appellants-writ
petitioners
were
appointed, they were about 14 to 17 years
age. Thus, they could not have been
appointed as Assistant Teachers for
teaching the students in the Institution in
Junior High School. Their appointments
were made in July, 1977 and August,
1977, which appears to be ante dated
orders, as the Uttar Pradesh Recognised
Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service
of Teachers) Rules, 1978, (hereinafter
referred to as the 1978 Rules) were
enforced on 13th February, 1978 which
prescribe for minimum qualification and
also the age limit. Thus, he submitted that
subsequent approval of the District Basic
Education Officer and District Inspector
of Schools would not be of any assistance
to the appellants-writ petitioners. He
further submitted that if a person, on the
date of his appointment, did not possess
minimum qualification and also the
minimum age, as prescribed under the
1978 Rules, the appointment even if
made, would be of no consequence.

9. Learned Standing Counsel relied
upon a decision of the Supreme Court
rendered
in
District
Collector
&
Chairman, Vizianagaram Social Welfare
Residential School Society Vizianagaram
and another Vs. M. Tripura Sundari
Devi (1990) 3 S.C.C. 655) wherein it has
been held that even if an unqualified
person has been appointed, by mistake, it
amounts to a fraud on public to appoint
persons with inferior qualifications in
such circumstances unless it is clearly
stated that the qualifications are relaxable.
No court should be a party to the
perpetuation of the fraudulent practice. He
further submitted that if by fraudulent act
the appellants- writ petitioners have been
able to obtain appointment that would not
justify their claim for getting salary from
the State exchequer.

10. Having heard learned counsel
for the parties we find that it is not in
dispute that all the appellants- writ
petitioners, when they were appointed in
the month of July and August, 1977, were
in between the age of 14 to 17 years. The
Institution was a private institution. The
service Rules were enforced on 13
February, 1978 which provided the
minimum qualifications and the minimum
age limit and also for constitution of a
selection
committee.
The
Institution
remained unaided till 1996 i.e. for a
period of more than 17 years from the
date of appointment of the appellant- writ
http://www.allahabadhighcourt.nic.in
3 All] M/s Gurcharan Industrial Works V. Union of India and others 991
petitioner. The District Basic Education
Officer has approved the appointment of
the appellants- writ petitioners without
going into the question whether they has
to were major or not on the date of
appointment. Likewise , the District
Inspector of Schools also did not go into
the
question
about
the
minimum
qualifications required at the time of
appointment. Thus, no advantage can be
derived from the order of District Basic
Education Officer and District Inspector
of Schools that they had approved their
absorption. It may be mentioned here that
at the time of appointment Ram Sewak
Warun and Siya Ram Yadav were
Intermediate, whereas Ram Charan verma
and Krishna Chandra Chaudhary were
High School and Ram Ashish Chaudhary
was only Junior High School i.e. Class
VIII. It may also be mentioned here that
they were all in between the age of 14 to
17 years. It may be mentioned that the
appointment on the post of teacher is a
contract between the Committee of
Management and the person so appointed.
Any contract can be entered into only by a
contracting party who is major and no
contract can be entered into by a minor.
However, any person can act on behalf of
the minor. A contract entered into by a
minor is a void contract in terms of
Section 11 of the Indian Contract Act,
1872. In Ma Hnit and others Vs.
Hashim Ebrahim Metev and another
(A.I.R. 1919 Privy Council, 129), it has
been held that a contract by minor is void
and not merely viodable. Thus the
appointment of the appellants- writ
petitioners was void all initio. The
decision relied upon by the learned
Advocate for the writ petitioners that if
the appellants- writ petitioners have been
working for long years and have acquired
the qualifications subsequently, would not
be applicable in the present case. In as
much as, at the time of initial appointment
they were not major and there was no
provision for relaxing the age.

11. On the facts and in the
circumstances of the case, in our view, the
learned Single Judge has rightly held that
the appointment of the writ petitioners
was illegally made.

12. In view of the foregoing
discussions, we do not find any merit in
these
special
appeals.
The
Special
Appeals fail and are dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2002

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

Civil Misc. Writ Petition No. 187 of 2000

M/s Gurcharan Industrial works

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri S.D. Dube

Counsel for the Respondents:
Sri S.P. Kesherwani
S.C.

Central Excise and Salt Act 1944 read
with - Central Excise and Custom Laws
(Amendment) Act 1977- 11-B- Refund of
amount- claim for Refund- small scale
industry - exempted from excise duty-
Petitioner under ignorance deposited the
excise duty- application for refund made
on 24.2.97 - after the enforcement of Act
No. 40 of 1991- Rejection of claim held -
proper.