# Ram Kumar and Others v. State of - **Citation:** (2013) 2 ILRA 1074 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2013 - **Case number:** Civil Misc. Writ Petition No. 29000 of 2013 - **Bench:** Amreshwar Pratap Sahi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-and-others-v-state-of-42551 - **Pages:** 3 ## Headnote Constitution of India, Art. 226- Experience of teaching on fixed honorarium-can not be ignored-for counting-teaching experience is material and not the mode of appointmentrejection-not proper-direction for fresh consideration issued. Held: Para-9 In both cases payment of honoraria cannot be the criteria of rejection of experience. Merely because a teacher has received lower emoluments, though working on an equivalent post, cannot be the ground to reject a candidature. The judgments referred to hereinabove have to be taken into account that relies on the Apex Court decision in the case of Mohd. Altaf and others Vs. U.P. Public Service Commission and another reported in 2008(14) SCC 139; 2008 (14) SCC 144; 2008 (14) SCC 146 and 2002 (93) FLR 1208. Case Law discussed: 2008(14) SCC 139; 2008(14) SCC 144; 2008(14) SCC 146; 2002(93) FLR 1208 ## Text 1074 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 order dated 17.10.1995 but not under the provisions of section 198(4) of the Act. 5. Sri Hemant Kumar has raised objection with regard to maintainability of the writ petition by submitting that the order impugned is revisable and the writ petition should be dismissed on the ground of alternative remedy. 6. I have heard learned counsel for the parties and considered their submissions. 7. So far as the submission of Sri Singh with regard to entertaining of application under section 198(4) of the Act is concerned, he is right to the extent that no application lies for cancellation of fishery lease under the aforesaid section, but it is not in dispute that the Collector has power to cancel the fishery lease under government order dated 17.10.1995. It is settled law that wrong mentioning or non-mentioning of a section could not vitiate the proceeding if the authority/court concerned has power to adjudicate upon the issue in question. Here, the issue in question was validity of fishery lease, on which finger was raised that during the settlement of lease, irregularities have been committed. The Collector has exercised its power may be under section 198(4) of the Act, but that will not vitiate the proceeding as the Collector has power to cancel the lease, either it is agricultural lease or fishery lease, but under different provision. 8. In my considered opinion, on this ground, the order cannot said to be without jurisdiction. 9. So far as the entertaining of the writ petition is concerned, as the order impugned is revisable, in view of the Full Bench decision of this Court in the case of Ram Kumar and Others Vs. State of U.P. and Others 2005 (99) RD 823, the petitioner is at liberty to file revision against the order impugned. In case such revision is filed within a period of three weeks from today, the same may be considered and decided without entertaining any objection to the limitation. 10. The petitioner is also at liberty to file an application for interim protection. In case the revision is filed within a period of three weeks from today with application for interim protection along with a certified copy of the order of this Court, the said application be also considered and decided in accordance with law after hearing all concerned. 11. Till the petitioner's application for interim protection is considered, status quo as on date be maintained. However, the Commissioner, thereafter, shall pass an independent order in accordance with law. 12. It may be clarified that I have neither addressed myself on the merit of the order of the Collector nor the merit of the petitioner's application for interim protection and the Commissioner is free to pass an independent order in accordance with law without being influenced by the interim order passed by this Court. 13. With the aforesaid observation / direction, this writ petition is disposed of. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 22.05.2013 2 All] Dr. Madhulika Singh Vs. State of U.P. and Ors. 1075 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. Civil Misc. Writ Petition No. 29000 of 2013 Dr. Madhulika Singh ...Petitioner Versus State of U.P. and Ors. ...Respondents Counsel for the Petitioner: Sri Bal Mukund Singh Counsel for the Respondents: C.S.C., Sri A.K. Yadav Constitution of India, Art. 226- Experience of teaching on fixed honorarium-can not be ignored-for counting-teaching experience is material and not the mode of appointmentrejection-not proper-direction for fresh consideration issued. Held: Para-9 In both cases payment of honoraria cannot be the criteria of rejection of experience. Merely because a teacher has received lower emoluments, though working on an equivalent post, cannot be the ground to reject a candidature. The judgments referred to hereinabove have to be taken into account that relies on the Apex Court decision in the case of Mohd. Altaf and others Vs. U.P. Public Service Commission and another reported in 2008(14) SCC 139; 2008 (14) SCC 144; 2008 (14) SCC 146 and 2002 (93) FLR 1208. Case Law discussed: 2008(14) SCC 139; 2008(14) SCC 144; 2008(14) SCC 146; 2002(93) FLR 1208 (Delivered by Hon'ble Amreshwar Pratap Sahi, J.) 1. The impugned order dated 13th March, 2013 has been passed by the respondent Board refusing to accept the experience of the petitioner that she has received in a degree college affiliated to the Purvanchal University as she was employed on a fixed honoraria basis. The impugned order further refused to recognize the experience of the petitioner in a self financed Intermediate college. 2. The issue relating to experience in a self financed Intermediate college has already been resolved by the decision of this court in the case of Dr. Deepak Bhatiya and others Vs. State of U.P. and others, writ petition no. 2842 of 2010, decided on 15.7.2010. A copy of the said judgment is annexure 10 to the writ petition. 3. Apart from this, the ratio of the decision in the case of Dr. Madhulika Singh the petitioner herself in writ petition no. 14582 of 2012 relies on the ratio of a Supreme Court decision in relation to experience. 4. The petitioner's experience certificate of teaching in a Girls Degree College is on record and her appointment order in the degree college dated 23.1.2004 is Annexure 5 to the writ petition. 5. A perusal of the said appointment order indicates that the petitioner was appointed on a fixed honoraria basis after approval of the Vice Chancellor of the University. In such circumstances, the said appointment cannot be said to be an appointment either de-hors the rules or not in accordance with law so as to disentitle the petitioner to get the said period of experience counted for the purpose of selection. 6. The petitioner has described herself as a full time teacher supported by 1076 INDIAN LAW REPORTS ALLAHABAD SERIES [2013 a certificate from the institution. Payment of a fixed honoraria is not necessarily an indicator of full time or part-time experience. Receipt of emoluments are not a substitute for experience. 7. A teacher getting a fixed salary at times is more devoted towards performance than those who have secured permanent berths. The experience of a teacher in a particular subject can be gauged by performance and the status of involvement in the institution, and not on some subjective assumption. However the genuineness of such experience, like in the present case, would also have to be assessed by the nature of engagement. In the present case the petitioner claims her status of a teacher in a degree college upon approval by the Vice Chancellor of a recognized University. 8. So far as her experience as a teacher in an Intermediate College is concerned, that experience has also to be examined in accordance with the modes of appointment in an unaided Inter College. 9. In both cases payment of honoraria cannot be the criteria of rejection of experience. Merely because a teacher has received lower emoluments, though working on an equivalent post, cannot be the ground to reject a candidature. The judgments referred to hereinabove have to be taken into account that relies on the Apex Court decision in the case of Mohd. Altaf and others Vs. U.P. Public Service Commission and another reported in 2008(14) SCC 139; 2008 (14) SCC 144; 2008 (14) SCC 146 and 2002 (93) FLR 1208. 10. It is expected that the Board shall now consider the matter more objectively. 11. Thus the reasons given in the impugned order dated 13.3.2013 cannot be sustained. The impugned order is quashed. 12. The writ petition is allowed with a direction to the respondent Board to consider the experience of the petitioner in the light of observations made hereinabove and pass an appropriate order within six weeks. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.07.2013 BEFORE THE HON'BLE SHIVA KIRTI SINGH, CHIEF JUSTICE. THE HON'BLE DILIP GUPTA, J. Civil Misc. Writ Petition No.29272 of 2011, W.P. No. 59228 of 2010, W.P. No. 59229 of 2010 and W.P. No. 28895 of 2003 Arun Kumar Joseph ...Petitioner Versus Victor Samuel Mathews and Anr. ...Respondents Counsel for the Petitioner: Sri Pramod Kumar Jain, Sri Saurabh Jain Counsel for the Respondents: Sri Arun Kumar Singh, Sri Rohit Agarwal Sri Arvind Srivastava, Sri Manoj Misra U.P. Urban Building(Regulation of Rent and Letting Act 1972-Section 16(1)(b)- Release Application-by land lord-whether limitation of 12 years can be applicable-held-'no'-right of release application-a creation of statutecan not be taken away by putting embargo of limitation? Held:Para-21