# Ram Kesh Yadav v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-26
- **Case number:** Writ A No. 7471 of 2016
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kesh-yadav-v-state-of-u-p-ors-50614
- **Pages:** 11

## Headnote

Service Law - U.P. Secondary Education
Services Commission Act, 1982 - Section
33-C - Regularization - Appointment prior
to Radha Raizada judgment - Validity of
appointment
and
entitlement
to
regularization
-
Substantive
vacancy
existed due to promotion of Assistant
Teacher to Principal - District Inspector of
Schools granted financial approval
-
Committee's finding rejecting vacancy
report held perverse - Writ allowed -
Direction
for
regularization
with
consequential benefits. The petitioner was
appointed as an Assistant Teacher against a
substantive vacancy. Although salary was
initially paid till 1998, further salary was stopped
without justification, leading to multiple rounds
of litigation. The District Inspector of Schools
had
granted
financial
approval
in
1997,
confirming the existence of a substantive
vacancy and due process followed by the
management.
A
regional
committee
later
rejected the petitioner's claim for regularization,
citing lack of clarity in vacancy and selection
process. The High Court held that the findings
of the committee were perverse and ignored
prior binding judicial findings and official
reports
confirming
the
vacancy
and
appointment
process.
The
petitioner's
appointment was made prior to the Radha
Raizada
judgment
(1994),
thus
the
requirement
of
advertisement
and
prior
permission was not applicable. The Court
further clarified that lapse of vacancy under
Regulation 20 was not attracted due to the
applicability of the U.P. Secondary Education
Services Commission Act, 1982.writ allowed.
The High Court quashed the impugned order
dated 18.11.2015, held the petitioner to have
been lawfully appointed against a substantive
vacancy, and directed the authorities to
regularize his service under Section 33-C of
the 1982 Act, along with all consequential
benefits including pay fixation, increment, and
pensionary benefits. Direction was also issued
for compliance within one month.
Writ allowed.

Key Citations:

## Text

290 INDIAN LAW REPORTS ALLAHABAD SERIES
More so ever because the opposite party is
not a tenant of the demised premises.

4. That para No. 5, since does not
in any way relate to the opposite party,
hence needs no offer. However, it is
submitted that any landlord legally cannot
shift the fruits to be obtained from a tenant
on the shoulders of his brothers or a person
who is blood related except her legal
heirs/successors.

5. That para No. 6 of the
application is a matter of regard and being
legal in nature needs no offer.

6. That since para No. 7 of the
application does not relate to the opposite
party, hence needs no offer.

49. In paragraphs 3, 4, 5 and 6 of the
objection, there is no denial of fact so
mentioned in paragraphs 4, 5, 6 and 7 of
the rent application filed by plaintiffrespondent.

50. It is mentioned in para 4 of the
rent application that shop in question is also
situate in the same market, i.e. Labh Chand
Market, Rajaki Mandi, Agra. In para 4,
there is reference of assessment order of
ADM (FR) and as per that monthly rent is
fixed at the rate of Rs. 833/- per sq. ft for
other shops situated in the very same
market.

51. Not only this, Rent Authority vide
its order dated 22.12.2021 has revised the
rent of Shop No. 29/296A/29(New No.
29/296/A/5), Labh Chand Market, Rajaki
Mandi, Agra at the rate of Rs. 750/-. In the
present case, Shop No. 29/296/20 in the
same market, impugned interim rent order
dated 06.07.2022 has been passed relying
upon the order dated 22.12.2021 fixing the
rent as Rs. 750/- per sq. ft. Therefore in
want of specific denial in objection, it
cannot be said that Rent Authority has fixed
the interim rent without application of
mind. In fact, Rent Authority while
deciding the interim rent has relied upon
the order dated 22.12.2021 fixing the rent
as Rs. 750/- per sq. ft. for the same market.
Impugned interim rent order has been passed
on 06.07.2022 almost after 8 months from the
earlier order dated 22.12.2021. Therefore in
all eventuality interim rent cannot be fixed
lessor than the amount of Rs. 750/- per sq. ft.
for the reason that shops are situated in the
same market, i.e. Labh Chand Market, Rajaki
Mandi, Agra. Under such facts of the case, it
cannot be said that the impugned order dated
06.07.2022 has been passed without any
exercise or application of mind. Rent
Authority has taken a lenient view while
fixing the interim rent at the rate of 750/- per
sq. feet even after 8 months from the earlier
order dated 22.12.2021, otherwise, it may
have been fixed to some higher side.

52. Therefore, in light of facts,
provision of law and judgments discussed
hereinabove, I find no illegality in the
impugned order dated 06.07.2022. Petition
lacks merit and is accordingly dismissed.

53. No order as to costs.
----------
(2023) 8 ILRA 290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2023

BEFORE

THE HON'BLE AJIT KUMAR, J

Writ A No. 7471 of 2016

Ram Kesh Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
8 All. Ram Kesh Yadav Vs. State of U.P. & Ors.
291
Sri Amit Kumar Srivastava, Sri Arpan
Srivastava, Sri Anil Bhushan (Sr. Advocate)

Counsel for the Respondents:
C.S.C.

Service Law - U.P. Secondary Education
Services Commission Act, 1982 - Section
33-C - Regularization - Appointment prior
to Radha Raizada judgment - Validity of
appointment
and
entitlement
to
regularization
-
Substantive
vacancy
existed due to promotion of Assistant
Teacher to Principal - District Inspector of
Schools granted financial approval
-
Committee's finding rejecting vacancy
report held perverse - Writ allowed -
Direction
for
regularization
with
consequential benefits. The petitioner was
appointed as an Assistant Teacher against a
substantive vacancy. Although salary was
initially paid till 1998, further salary was stopped
without justification, leading to multiple rounds
of litigation. The District Inspector of Schools
had
granted
financial
approval
in
1997,
confirming the existence of a substantive
vacancy and due process followed by the
management.
A
regional
committee
later
rejected the petitioner's claim for regularization,
citing lack of clarity in vacancy and selection
process. The High Court held that the findings
of the committee were perverse and ignored
prior binding judicial findings and official
reports
confirming
the
vacancy
and
appointment
process.
The
petitioner's
appointment was made prior to the Radha
Raizada
judgment
(1994),
thus
the
requirement
of
advertisement
and
prior
permission was not applicable. The Court
further clarified that lapse of vacancy under
Regulation 20 was not attracted due to the
applicability of the U.P. Secondary Education
Services Commission Act, 1982.writ allowed.
The High Court quashed the impugned order
dated 18.11.2015, held the petitioner to have
been lawfully appointed against a substantive
vacancy, and directed the authorities to
regularize his service under Section 33-C of
the 1982 Act, along with all consequential
benefits including pay fixation, increment, and
pensionary benefits. Direction was also issued
for compliance within one month.
Writ allowed.

Key Citations:

1.
Radha
Raizada
Vs
Committee
of
Management, 1994 (3) UPLBEC 1551

2. Ashika Prasad Shukla Vs DIOS, 1998 (3)
UPLBEC 1722

3. Yogendra Nath Singh Vs DIOS, 1991 (1) AWC
562

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Anil Bhushan, learned
Senior Advocate assisted by Sri Amit
Kumar Srivastava, learned counsel for the
petitioner and learned Standing Counsel for
the State respondents.

2. As per the office report dated 9th
April, 2016 neither registered envelop nor,
acknowledgement sent by the registered
post to the respondent No.-5 has been
received back.

3. In the circumstances, therefore,
service of notice upon respondent No.- 5 is
deemed sufficient and the Court now
proceeds to decide the matter.

4. The petitioner before this Court
was selected and appointed on the post of
Assistant Teacher in LT grade on 26th
April,
1992
by
the
Committee
of
Management against a substantive vacancy
which had fallen vacant on account of
selection and appointment of the then
Principal of the institution, namely, Jagat
Pal Singh in the year 1986. The papers after
selection was forwarded to the District
Inspector of Schools, however he did not
accord any financial approval forcing to the
petitioner to file writ petition before this
Court bearing Writ Petition No.- 6623 of
292 INDIAN LAW REPORTS ALLAHABAD SERIES
1993 in which certain directions were
issued on 15th April, 1993. While the
matter remained pending before this Court,
the District Inspector of Schools accorded
financial
approval
to
the petitioner's
appointment vide order dated 5th July,
1995 and so according to the petitioner, the
writ petition had got rendered infructuous
and so was dismissed on 20th July, 2010.

5. It transpires from the pleadings that
the petitioner's salary was paid till 1998
only and so consequently another another
writ petition being Writ Petition No.- 50664
of 2000 was filed in which direction was
issued
on
24th
November,
2000
commanding the authorities to consider the
representation of the petitioner and pass
appropriate order thereupon. The Finance
and Accounts Officer passed an order on
18th June, 2003 rejecting the representation
of the petitioner filed for the purposes of
payment of salary virtually questioning the
appointment
of
the
petitioner
more
especially on the ground of ban on the
appointments in such institution. The
petitioner again approached this Court vide
writ petition No. - 3657 of 2003 which was
allowed and the order passed by the
Finance and Accounts Officer dated 8th
June, 2003 was set aside and the matter was
remitted to the respondent No.- 2, namely,
the Director of Education (Secondary) U.P.
Lucknow to pass appropriate detailed order
in accordance with law after giving
opportunity of hearing to the petitioner.

6. The Director of Education again
rejected the claim of the petitioner vide
detailed order dated 31st December, 2008
taking a ground that prior permission was not
taken from the competent authority in the
light of the judgment of this Court in the case
of
Radha
Raizada
and
another
v.
Committee of Management, Vidyawati
Darbari Girls Inter College and others:
1994 (3) UPLBEC 1551 and that the post
was fraudulently taken to be vacant.

7. The basic ground, therefore was
taken that there was no post in existence upon
which the petitioner could have been
appointed. This order dated 31st December,
2008 came to be challenged again vide writ
petition being Writ - A No.- 22809 of 2009,
in which both these grounds were held to be
untenable, firstly for the reason that in the
Full Bench judgment in Radha Raizada it was
made only prospective in its application and
hence Committee of Management was fully
empowered to make appointment; and
secondly no prior permission to fill up the
vacancy was required. The judgment had
been delivered on 15th July, 1994 and the
appointment of the petitioner had taken place
way back in the year 1992, and so it was held
not applicable in the light of the directions
issued by the Full Bench itself. Further more
relying upon the judgment of Ashika Prasad
Shukla v. District Inspector of Schools,
Allahabad and others: 1998 1998 (3)
UPLBEC 1722, the point canvassed by
learned counsel for the petitioner was that
even notice board notification of vacancy was
sufficient, was upheld by the Court. The
Court also observed that the view taken in the
judgment of this Court dated 28th July, 2006
was not accorded consideration by the
authority while passing the order. Thus, the
Court was of the final view that the validity
of appointment could not have been gone
into. As far as the procedural aspect of the
matter was concerned, all that was required to
be seen was as to whether there existed
vacancy or not upon which the appointment
of the petitioner could have been facilitated.

8. The Court in its ultimate analysis
reproduced the operative portion of the
order which was passed in Writ Petition
8 All. Ram Kesh Yadav Vs. State of U.P. & Ors.
293
No.- 44818 of 2002 filed by one Satyawan
Yadav, who also set up a claim of the post
in question and the Court recorded that
Ram Kesh Yadav, namely the present
petitioner, who was respondent No.- 4 in
the said petition, was appointed on the
vacancy and was discharging duties as
such.

9. In the circumstances, therefore, the
Court directed that "only question is to be
considered by the Committee to scrutinize
the aspect of the petitioner's appointment
against the then subsisting substantive
vacancy only". The finding part of the
operative portion of the order of this Court
dated 19th February, 2015 is reproduced
hereunder:

"He submits that all requisite
papers including the proposal of the
Management, resolutions passed etc., were
produced for consideration of respondent
No.2 but unfortunately has not found
favour with him. He has submitted that on
an earlier occasion also a dispute had been
raised by the respondents when it was
contended that two persons viz., the
petitioner and one Sri Satyawan Yadav
were appointed against the vacancy caused
by the promotion of Sri Jagatpal Singh.
Addressing the same, Sri Satyawan Yadav
appears to have filed a Writ Petition in this
Court being Writ Petition No. 44818 of
2002 (Satyawan Yadav Vs. Director of
Education and others) which came to be
dismissed on 20.04.2004. While dismissing
the Writ Petition, this Court was pleased to
record as follows:-

"The Director has found that in
the meantime Sri Ram Kesh Yadav
respondent No.4 was appointed on the
vacancy caused on account of appointment
of Sri Jagatpal Singh, Assistant Teacher as
Principal of the college and that Sri Ram
Kesh Yadav is working since April, 1992
and had drawn salary from May 1997 to
October 1998. Sri Ram Kesh Yadav also
filed Writ Petition No. 50664/2000 which
was disposed of with direction to the
Director of Education (Secondary) to
decide the representation."

The Court is informed that the
above judgment has attained finality. If that
be the above position, it is not known on
what basis, the respondent No.2 could take
a contrary decision or record conflicting
statements while passing the impugned
order.

In light of the above discussion, it
is apparent that the impugned order cannot
be
sustained.
The
Writ
Petition
is
accordingly allowed and the order dated
31.12.2008
is
quashed.
However,
considering the over all circumstances of
the case, this Court deems it appropriate to
direct the Regional Level Committee to
scrutinize the aspect of the petitioner's
appointment against a then subsisting
substantive vacancy only and to consider
the case of the petitioner for regularization
under the provisions of Section 33-B of the
U.P. Secondary Education Selection and
Service Board Act 1982. This exercise be
completed by the Committee within a
period of one month from the date of
production of a certified copy of this order.
The consequential relief sought by the
petitioner would abide by the decision
taken by the Committee aforesaid.

The Writ Petition is allowed in
the above terms."

10. Now after the matter got remitted
to consider the factum of the existence of
the vacancies which was claimed to be
substantive in nature and if so found the
consequential action for regularization of
the
petitioner
in
service,
Regional
294 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee asked for a report from the
District Inspector of Schools which came to
furnished by him on 20th June, 2015. In the
report the District Inspector of Schools
very categorically recorded a fact that on
account of selection and appointment of
Jagat Pal Singh, the then Assistant Teacher
in the institution on the post of Principal,
LT grade post in question had consequently
fallen vacant and that the Manager took
appropriate steps to fill up the vacancy by
appointing Ram Kesh Yadav, namely, the
petitioner on 26th June, 1992 and that Ram
Kesh
Yadav
was
given
joining
by
Committee on 28th April, 1992. Thereafter
the detailed narrative that is contained in
the report relating to the various petitions
that were filed before this Court and
directions issued from time to time
including the direction for payment of
salary etc. But the relevant part of the
report that has been referred to hereinabove
with regard to the appointment of the
petitioner and his joining is reproduced
hereunder:

"बहुधन्धी इण्टर कालेज, सोनत्रहता जौनपुर एक
मान्यता प्राप्त एवं हाईस्कूल स्तर पर सहायता प्राप्त त्रशक्षण संस्था
है। संस्था पर वेतन अत्रधत्रनयम 1971 एवं माध्यत्रमक त्रशक्षा
सेवा चयन बोडा त्रनयमावली 1982 प्रभावी है। त्रवद्यालय के
सहायक अध्यापक श्री जगतपाल त्रसंह की पदोन्नत्रत प्रधानाचाया
पद पर हो जाने के फलस्वरूप एल०टी० ग्रेड का एक पद
मौत्रलक रूप से ररक्त हो गया। प्रबंधक द्वारा ररक्त पद पर त्रनयुत्रक्त
सम्बन्धी कायावाही करते हुए श्री रामकेश यादव की त्रनयुत्रक्त
स०अ० के पद पर त्रदनांक 26.04.1992 को की गई थी। श्री
रामकेश यादव को त्रवद्यालय में त्रदनांक 28.04.1992 को
कायाभार ग्रहण करा त्रदया गया। वेतन भुगतान न होने के कारण
श्री यादव द्वारा माननीय उछच न्यायालय ने यात्रचका संख्या-
6623/1993 योत्रजत की गयी। माननीय उछच न्यायालय द्वारा
पाररत आदेश त्रदनांक 15.04.1993 के अनुपालन में श्री
रामकेश यादव की त्रनयुत्रक्त का अनुमोदन इस कायाालय के
पिांक/1915-16/1997-98 त्रदनांक 03.06.1997
द्वारा त्रकया गया।"

"Bahudhandhi
Inter
College,
Sonhita Jaunpur is a recognized educational
institution that receivs aid up to the High
School. The payment of Salary Act, 1971
and U.P. Secondary Education Service
Selection Board Rules, 1982 are applicable
to the institution. In view of promotion of
Assistant Teacher Sri Jagat Pal Singh on
the post of Principal, the post of L.T. grade
had fallen vacant substantively. Sri Rakesh
Yadav was appointed on the post of
Assistant Teacher on 26th April, 1992 by
the Manager after conducting proceedings
qua selection and appointment. Sri Ram
Kesh Yadav has joined the institution on
28th April, 1992. In view of the payment
not being made, Sri Ram Kesh Yadav filed
writ petition before this Court being Writ
Petition No.- 6623 of 1993. In compliance
of the order passed by the High Court dated
15th April, 1993, the approval order of
appointment of Sri Ram Kesh Yadav was
issued by this office vide letter No.191516/1997-98 dated 3rd June, 1997."

(English Translation by the Court)

11. After the report was received the
Committee constituted for the said purpose
under
Section
33-C(2)
proceeded
to
examine the matter of the petitioner from
both angle: (i). Existence of the substantive
vacancy; and (ii). Claim for regularization
under Section 33-C of the Act No.- 5 of
1992.

12. The Committee concerned has
considered the report of the District
Inspector of Schools and also the statement
and submission advanced before it by the
petitioner. The Committee of Management
was also heard and in its analysis and
finding part it has recorded that there was
no proof available as to upon which
vacancy
the
petitioner
was
given
appointment and then no explanation has
8 All. Ram Kesh Yadav Vs. State of U.P. & Ors.
295
been
offered
by
the
Committee
of
Management
as
to
under
which
circumstances it proceeded to fill up the
vacancy in 1992 which had fallen vacant as
back as in the year 1996 and then the
Committee has proceeded to hold that the
vacancy stood lapsed virtually in the light
of the provisions as contained under
Regulation 22 of Chapter II of Intermediate
Education Act, 1921.

13. Learned Senior Advocate has
questioned the findings returned by the
Committee as perverse. Firstly, he argues
that the sufficient document were available
on records inasmuch as the report of the
District
Inspector
of
Schools
itself
acknowledged that the vacancy that had
fallen vacant on account of selection and
appointment of Jagat Pal Singh as Principal
by the Board, was sought to be filled up by
making appointment of the petitioner
resorting to the procedure prescribed for, by
the Committee of Management. He submits
that the District Inspector of Schools has
also proceeded to record that the approval
was granted by the District Inspector of
Schools. He has also taken to the Court to a
document
which
had been
filed
as
Annexure - 1 to the papers forwarded to
the District Inspector of Schools on 23rd
January, 1992. This document regarding
existence
of
vacancy
absolutely
demonstrates that vacancy had fallen
vacant on account of the then Assistant
Teacher, namely, Jagat Pal Singh, being
selected as Principal by the U.P. Secondary
Regulation Service Selection Board.

14. He submits that the financial
approval had been accorded by the District
Inspector of Schools upon those very
documents which were duly got verified by
the then District Inspector of Schools and
those documents were very much available
on record upon which the report has been
submitted by the District Inspector of
Schools. He submits that those very
documents have been referred to in
paragraph 7, 8 and 9 of the writ petition
and the paragraphs which have been very
vaguely replied to, inasmuch as the
contents thereof have not at all been
denied. He further submits that regarding
existence of vacancies, specific averments
have also been made in paragraph 37 of the
writ petition which too have not been
denied and only the order of the Committee
has been referred to, which is impugned
herein this petition. Regarding the other
point that has been taken in a disguised
way or in a language which can be said to
be camouflaged one, so as to be referable to
Regulation 20 of Chapter II of the
Intermediate Education Act, 1921. The
petitioner's counsel has relied upon the
authority in the case of Yogendra Nath
Singh v. District Inspector of Schools and
another: 1991 (1) AWC 562.

15. Meeting to above two arguments,
learned Standing Counsel has submitted
that two persons, namely, Satyawan Singh
and the petitioner had come to join on the
post in question and, therefore, there was
an issue with regard to the legality of
appointment. However, he could not deny
the report submitted by the District
Inspector of Schools and also the papers
filed along with writ petition which are also
available with the office of the District
Inspector of Schools in the original file
upon which the approval had been granted.
He has sought to justify the order passed by
the Committee for the reasons assigned
therein.

16. On the question of continuance of
the
petitioner,
he
has
filed
certain
certificates
of
the
Principal
of
the
296 INDIAN LAW REPORTS ALLAHABAD SERIES
institution which record that he has been
working in the institution. The certificates
are of the year 2015 just prior to filing of
the writ petition, more especially the last
one dated 5th May, 2015 written by the
Manager of the institution and 12th
February, 2014 by the Principal of the
institution. The management has not
represented itself despite service of notice
from this Court and therefore, it would be
taken that it has admitted the case of the
petitioner.

17. Having heard learned counsel for
the respective parties and having perused
the records and having discussed the facts
and previous order passed by this Court in
earlier round of litigation, I proceed to
examine
the
facts
returned
by
the
regularization/ regional level committee
dated 18th November, 2015. Upon perusal
of the decision I find that after referring to
the earlier order of this Court dated 19th
February, 2015 passed in writ petition No.-
22809 of 2009 and the submissions of
petitioner, Manager of Committee of
Management and that of District Inspector
of Schools, the following findings have
been returned:

(i). Jagat Pal Singh, an Assistant
Teacher having been selected as Principal
of the institutiontook charge of Principal on
26th
December,
1986
and
thus
consequently post of Assistant Teacher fell
substantively vacant on 26th December,
1986.

(ii). From the documents filed by
petitioner it was clear that there was a
resolution adopted by the Committee of
Management on 26th April, 1992 and vide
resolution No.- 2 thereof petitioner's
appointment proposal was passed against a
vacancy.

(iii). It was not clear from the
documents
against
which
vacancy
petitioner was appointed and no document
was
available
to
demonstrate
that
Management proposed to fill up vacancy
after six years of it falling substantively
vacant.

(iv).
No
documents
were
available
regarding
creation
of post,
substantive vacancy, prior permission of
District Inspector of Schools, advertisement
details of other candidates if appeared
before selection Committee.

18. First two findings (i) & (ii) fully
support the claim of petitioner regarding
vacancy in the institution and resolution of
Committee of Management in favour of
petitioner. The report of District Inspector
of Schools concerned, also records very
categorically: कवद्यालय िे सहायि अध्यापि श्री जगतपाल
कसांह िी पदोन्नकत प्रिानाचायद पद पर हो जाने िे फलस्वरूप
एल०टी० ग्रेड िा पद मौकलि रूप से ररक्त हो गया। प्रबन्िि द्वारा
ररक्त पद पर कनयुकक्त सम्बन्िी िायदवाही िरते हुए श्री रामिेश यादव
िी कनयुकक्त स०अ० िे पद पर कदनाांि 26.4.1992िो िायदभार
ग्रहण िरा कदया गया। (An Assistant Teacher of the
institution, Sri Jagat Pal Singh having been
promoted as a Principal, the post of
Assistant Teacher in L.T. Grade fell
substantively vacant. The Manager initiated
proceeding for making appointment against
the substantive vacancy and accordingly,
appointed Sri Ramkesh Yadav as Assistant
Teacher who joined duties as such on 26th
April, 1992.)
(English Translation by the Court)

19. The documents relating to the
resolution were also available and has so
recorded at the bottom of internal page 3 of
the order/ decision of the Committee. Here
it is worth mentioning that the order of
promotion has been passed in respect of the
Assistant Teacher Jagat Pal Singh as
8 All. Ram Kesh Yadav Vs. State of U.P. & Ors.
297
Principal but as a matter of fact he was
selected and appointed as such against the
vacancy but whether the promotion or
selection it will hardly make any difference
as the vacancy had fallen vacant for Jagat
Pal
Singh's
appiontment
as
regular
Principal of the institution in substantive
capacity.

20. This above being the fact position,
the finding No. (iii) reached by the
Committee does not appeal to reason. The
Committee utterly failed to record reasons
as to why it was disputing the report of the
District Inspector of Schools (supra). The
records that were placed by the petitioner
and were also placed by District Inspector
of Schools and very explicitly revealed that
proposal of Committee of Management to
make appointment was in respect of the
vacancy
caused
by
substantive
and
permanent selection and appointment of
Jagat Pal Singh, an Assistant Teacher as
Principal by by the selection Board.

21. Still further, the Committee failed
to appreciate the findings returned by the
High Court in its decision dated 20th April,
2004 while dismissing writ petition of
Satyawan Yadav being Writ Petition No.-
44818 of 2002.

22. It is to my utter astonishment that
even though this above finding was
referred to with approval by this Court
while allowing writ petition No. 50664 of
2000 questioning the order dated 31st
December, 2008 vide order dated 19th
February, 2015 pursuant to which the
impugned decision has been taken and yet
the Committee held that it was not clear as
to whether petitioner was appointed against
the vacancy of Jagat Pal Singh. Thus, the
findings
No.
(iii)
returned
by
the
Committee is held perverse and hence
unsustainable.

23. Coming to the (iv) finding of
Committee, the Court finds that it was not
in issue at all. No body had questioned
appointment of petitioner for procedural
defects or irregularities to the extent of
impunity. Satyawan Yadav could have been
the only rival candidate but his writ petition
was discussed in the order dated 20th April,
2004 while returning finding in favour of
petitioner. Satyawan Yadav's claim ended
there itself and findings returned in favour
of the petitioner remained intact. The only
issue was to reconsider the claim of
petitioner in the light of the findings
returned in the order dated 20th April, 2004
upon
which
basis
order dated
31st
December, 2008 was quashed by this
Court. The Committee, therefore, was not
justified to go behind the orders dated 20th
April, 2004 and 19th December, 2015. It is
unfortunate
only
that
instead
of
appreciating the documents placed by the
District Inspector of Schools, his report and
the orders of this Court, the Committee
proceeded to nonsuit the petitioner qua his
claim for regularization by demanding
details of selection process. The finding
No. (iv) is, therefore, held to be totally
uncalled for, inasmuch as, petitioner's
appointment
and
continuance
in
the
institution cannot now be questioned for
alleged absence of old documents as to
selection moreso when there was no rival
challenge. Still further, when appointment
had been made as per prerequisition even
prevalent before the Full Bench in Radha
Raizada's case laid down the law of
advertisement etc., petitioner's selection
and appointment procedure that remained
prevalent as per judgment in Ashika
Prasad's case.
298 INDIAN LAW REPORTS ALLAHABAD SERIES

24. I would like here to refer the
earlier findings returned by the Regional
Joint Director of Education in his order
dated 31st December, 2008 regarding
advertisement etc. questioning the selection
process:

"उपयुदक्त सभी कनयुकक्तयाां वर्द 1989से 1993 िे
मध्य िी गयी है। ज्ञातव्य है कि श्री रामिेश यादव द्वारा पूवद में
योकजत याकचिा सांख्या- 6623/93 में कजस पद पर उनिी कनयुकक्त
किये जाने िा उल्लेख है वह पद 19-1-92 िो कदखाया गया है
किन्तु वह पद किस प्रिार ररक्त हुआ तथा पूवद पदिारी िौन था,
स्पष्ट नहीं है। बाद में उनिी कनयुकक्त प्रबन्ितत्र द्वारा श्री जगतपाल
कसांह, सहायि अध्यापि िे प्रिानाध्यापि पद पर कनयुक्त होने से
ररक्त पद पर दशादयी जा रही है जबकि उक्त पद कदनाांि 26.12.86
से ररक्त हुआ। उक्त पद पर अकियाचन कजला कवद्यालय कनरीक्षि
जौनपुर या माध्यकमि कशक्षा सेवा चयन बोडद इलाहाबाद िो नहीं
भेजा गया और न ही उसिा कवज्ञापन व्यापि प्रसार वाले समाचारपत्र में िराया गया, मात्र नोकटस बोडद पर कवज्ञापन किया जाना
दशादया गया है।.............."

"All the aforesaid appointments
were made between 1989 and 1993. It is
noticeable that in the earlier writ petition
No.- 6623 of 1993 that was filed by Sri
Ramkesh Yadav, he had been shown to
have been appointed on 9th January, 1992
but it would not made clear as to how that
post had fallen vacant and who had lien
against the said post. Later on it shows
appointment of the petitioner against the
post that had fallen vacant on account of
the then Assistant Teacher Jagat Pal Singh
being appointed as Headmaster whereas the
said post was vacant since 26th December,
1986. No requisition was made in respect
of the said vacancy either to District
Inspector of Schools for U.P. Secondary
Education
Service
Selection
Board,
Allahabad nor, the said post ever came to
be advertised in newspaper and only
advertisement on notice board has been
shown .........."

(English Translation by the Court)

25. I the penultimate paragraph of the
order of the Director of Education dated
31st December, 2008 following findings
came to be returned:

"जहाां ति श्रीमती रामदुलारी देवी व अन्य बनाम
सांयुक्त कशक्षा कनदेशि, वाराणसी व अन्य तथा श्री आकशि प्रसाद
शुक्ला बनाम कजला कवद्यालय कनरीक्षि,इलाहाबाद में पाररत आदेश
िा प्रश्न है याची िा प्रिरण उक्त आदेश से आच्छाकदत नहीं है
क्योंकि मा० सवोच्च न्यायालय द्वारा रािा रायजादा (1994) 3
यू०पी०एल०बी०ई०सी० में कदये गये कनणदय िे पूवद याची िा
अनुमोदन सक्षम अकििारी द्वारा नहीं कदया गया था। सांदभदगत प्रिरण
में कनयुक्त प्रबन्िि द्वारा िूटरकचत ढांग से कदनाांि 19.1.92 िो पद
ररक्त कदखािर िी गयी है जबकि वास्तव में उस कदनाांि िो िोई पद
ररक्त हुआ ही नहीं है। माांग किये जाने पर भी प्रबन्िि द्वारा प्रबन्ि
सकमकत िी िायदवाही पांकजिा आकद पत्रजात प्रस्तुत नहीं किया गया।
इस प्रिार याची िी कनयुकक्त कबना पद व कवकहत प्रकक्रया िा पालन
किये होने िे िारण अवैिाकनि है। कजला कवद्यालय कनरीक्षि जौनपुर
द्वारा कदनाांि 3.6.97 िो माननीय उच्च न्यायालय िे आदेश िे
अनुपालन में वेतन भुगतान िा आदेश पाररत किया गया है जबकि
इस प्रिार िा िोई आदेश माननीय उच्च न्यायालय द्वारा पाररत ही
नहीं है। माननीय सवोच्च द्वारा रािा रायजादा प्रिरण में कदये गये
कनणदय में उकल्लकखत मागदशी कसद्धान्तों िे आिार पर परीक्षण किये
कबना पद िे होने िे िारण तथा अकियाचन व समाचार पत्रों में
कवज्ञापन ने होने िे िारण तथा कजला कवद्यालय कनरीक्षि द्वारा
कनयुकक्त हेतु पूवादनुमकत न कदये जाने िे िारण अवैि है। कजनिे वेतन
भुगतान िा दाकयत्व कवभाग/ शासन िा नहीं है।"

"Insofar as the judgment in the
case of Smt. Ramdulari Devi and others v.
Joint Director of Education, Varanasi and
others and the judgment of Aashik Prasad
Shukla v. District Inspector of Schools,
Allahabad are concerned, the case of the
petitioner is not covered by the said
judgments because the appointment of the
petitioner was not approved by the
competent authority prior to the judgment
in the case of Radha Raizada (1994) 3
UPLBEC. In this matter Manager had made
appointment in fraudulent manner on 19th
8 All. Ram Kesh Yadav Vs. State of U.P. & Ors.
299
January, 1992 showing the post to be
vacant whereas on that date no such post
had fallen vacant. Despite being asked, the
Manager did not submit the minutes
register and other papers of the Committee
of Management. Thus, petitioner having
been appointed without their being any post
and without following the procedure
prescribed for, his appoint is illegal.
District Inspector of Schools vide his order
dated 3rd June, 1997 had passed the order
for payment of salary in compliance of the
order of High Court whereas there was no
such order passed by the High Court. The
appointment of the petitioner having been
made without following the guidelines and
principles laid down in the case of Radha
Raizada and without there being any post
as such and also in the absence of any
advertisement
in
the
newspaper
and
requisition being not sent, the approval of
the selection and appointment by the
District Inspector of Schools was illegal
and for that reason the department/
Government cannot be held liable to make
payment of salary to the petitioner."

(English Translation by the Court)

26. These above findings and
consequential order was set aside by this
Court under its order dated 19th February,
2015 by allowing his Writ Petition No.-
22809 of 2009 holding thus:

"It appears from the record that
this submission and particular aspect was
urged before this Court in the earlier round
of litigation also. The judgment of this
Court rendered on 28.07.2006 specifically
refers to the submission in this regard made
before the Court. Surprisingly, however, the
same has received no consideration or
notice by the respondent No.2, while
passing the impugned order.

Following the law laid down in
Ashika Prasad Shukla (Supra), this Court is
of the opinion, that the appointment of the
petitioner cannot be annulled on the
ground that the vacancy against which the
appointment was effected had not been
advertised or that the appointment did not
enjoy the prior approval of the District
Inspector of Schools. This so because the
appointment was admittedly made prior to
the judgment pronounced by this Court in
Radha Raizada (supra) on 15.07.1994.

That leaves only one other issue,
which is whether the appointment of the
petitioner was made against a substantive
vacancy existing at the relevant time."

27. Thus having held as above the
Court remitted the matter as to ascertain
whether 'petitioner was appointed against
a then subsisting substantive vacancy'. In
the circumstances, the Committee was only
required to ascertain availability of vacancy
and so the Committee has done vide
findings No. (i). Resultantly, findings No.
(iv) arrived by the Committee, is hereby
held
perverse
and
accordingly
unsustainable.

28. One more issue needed to be
addressed to do complete justice in the
matter and the issue is of Management's
right to make appointment after six years of
occurrence of vacancy. It is settled law that
with enforcement of U.P. Secondary
Regulation Services Selection Board Act
1982, all such vacancies fall within the
domain of Board constituted under the Act
and requisition has to be made. In the
present case requisition was made by
Committee
of
Management
on
23rd
January, 1992 and so Management in April,
1992 was fully competent to make
appointment on ad-hoc basis, and post
would not be taken to have lapsed. In the
300 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Yogendra Nath Singh (supra) vide
paragraph 8 this Court held thus:

"8. Another objection is that this
vacancy lapsed within the meaning of
Regulation 20 of Chapter II of the
Regulations
framed
under
the
U.P.
Intermediate
Education
Act,
1921.
Regulation 20 states that where the
Committee of Management has failed to
advertise any sanctioned post, which has
fallen vacant, in accordance with the
Regulations within a period of three months
from the date of occurrence of the vacancy,
such posts shall be deemed to have been
surrendered and shall not be filled up,
unless its creation is sanctioned afresh by
the Director. No sanction having been
obtained from the Director, the Respondent
No. 1 stated in the impugned order that the
post would be deemed to have been
surrendered. This was the position before
the Act, 1982, became operative. But after
the enforcement of the Act, 1982, every
vacancy has to be filed in only by the
commission and ad hoc appointment can be
made by the Management Committee only
in the circumstances as contained in
Section 18(1)(b). Petitioner's appointment
cannot be impugned on that ground."

29. I may observe here that whenever
a matter is remanded on a question upon
which the Court wants a certain finding of
fact, the authority has to address that issue
only
and
no
other
considerations
extraneous to issue should be taken into
account to reject a claim which otherwise
would be valid but for a definite finding on
issue under remand. In my considered view
the authority having held issue No. 2 in
favour of the petitioner, was required to just
look into the documents and findings of the
High Court in earlier round of litigation and
nothing beyond that.

30. In view of the above, writ petition
succeeds and is allowed. The decision
taken by the Committee dated 18th
November, 2015 impugned in the writ
petition
questioning
the
appointment
against the vacancy of Jagat Pal Singh is
set aside. Petitioner is held to be lawfully
appoint against a substantive vacancy of
Assistant Teacher then lying vacant. He is
held entitled to regularisation vide relevant
provisions and clause under Section 33-C
of Act No.- 5 of 1982 and so also all other
consequential benefits both in terms of
salary increament in pay etc. including
service period to be counted towards
qualify service for pension.

31. Competent authority is directed to
pass consequential order within a month
from the date of production of certified
copy of this order.
----------
(2023) 8 ILRA 300
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 8770 of 2022

Ashok Kumar Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sameer Kalia

Counsel for the Respondents:
C.S.C.

Held: The writ petition under Article 226
challenging the St. Public Service Tribunal's
order dated 22.09.2022, dismissing the claim
petition against the punishment order dated