# Ram Lal Tripathi v. State of U.P. and others

- **Citation:** (2007) 2 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-15
- **Case number:** Civil Misc. Writ Petition No.38716 of 2006
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-lal-tripathi-v-state-of-u-p-and-others-40969
- **Pages:** 7

## Headnote

Sri G.K. Singh
Sri V.K. Singh
Sri M.K. Srivastava
& S.C.

(A)
Constitution
of
India
Art-226-
Seniority
of
teachers
working
in
recognized institutions-to be decided
from the date of valid and substantive
appointment-otherwise
cannot
be
treated to be member of main stream of
teacher.
616 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Held: Para 24

Inter se seniority between teachers of
particular cadre, has to be determined
with reference to their date of valid and
substantive
appointment
on
their
respective posts. Unless the teacher is
lawfully appointed in a grade, he cannot
be treated to be a member of the
mainstream of teachers of the cadre, so
as to claim a position in the seniority qua
the cadre concerned.

(B)
Constitution
of
India
Art-226
Alternative
remedy-
writ
petition
pending since long time -Counter and
rejoinder affidavits exchanged between
parties
-particularly
the
claim
of
seniority between substantive and adhoc
appointed teachers- held- no bar.

Held: Para 29

Since the parties have exchanged their
affidavits and have addressed the Court
on merits, this Court is satisfied that it
would not be fair, just and equitable in
the facts of the present case to insist
upon
the
petitioner
to
avail
his
alternative remedy after more than three
years of his . having filed the first writ
petition being Civil Misc. Writ Petition
No. 53693 Of 2003, more so when upon
the dispute of seniority, another issue
qua the ad-hoc appointment on the post
of Principal has intervened.
Case law discussed:
1988(8) SCC 529
1997(2) UPLBEC 1133
1991(1) SCC 544
1986 UPLBEC 44

## Text

2 All] Ram Lal Tripathi V. State of U.P. and others
615

10. Thus, in the matter of judicial
review it is true that this Court does not
sit in appeal over the decision taken by
the authorities provided the decision does
not appear to be glaringly and patently
absurd and arbitrary.

11. Similarly the facts of the case in
Abhay Kumar Tripathi (Supra) are also
different and have no application to the
facts involved in the case in hand. A bare
perusal of the, judgment shows that one
printed page was found in possession of
the candidate, which was related to the
subject
of
examination,
and.
the
possession of the such material was not
denied. In the facts, the judgment in
Abhay Kumar Tripathi (Supra) has no
application and this Court rightly, held
that such candidate could have been
punished for unfair means and in such
case
no
interference
is
warranted.
However the present case has the facts
otherwise and the very existence of
material related to the subject of the
examination is absent. When a candidate
is
found
in
possession
of
any
unauthorized material which has no
bearing or connection with the subject of
examination, in that event it cannot be
held that the material recovered from his
possession is unauthorized. In the case in
hand, some number has been found
written on the back of the admit card,
which
probably
may
be
telephone
number. Thus, the Hon'ble Single Judge
has rightly held that it is not unauthorized
material and in the facts of the case, we
do not find any factual or legal error in
the judgment of the Hon'ble Single Judge.

12. Shri Gaur lastly submitted that
imposition of costs of Rs.5000/-(Rupees
Five Thousand only), which was directed
to be recovered from the Controller, is not
justified as he has no role to play in the
matter and the entire action has been
taken on the basis of the report of the
invigilator and the experts. We cannot
accept this
submission
because
the
invigilator and the examiner are the
agents of the Controller of examination
and thus, he is liable to pay costs.
However it is provided that it would be
open to the University or the Controller of
Examination to make necessary inquiry in
the matter identifying the person guilty of
the said mischief and realize the cost from
him.

With the aforesaid observation, this
special appeal stands dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.38716 of 2006

Ram Lal Tripathi

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

Counsel for the Petitioner:
Sri S.K. Shukla
Sri P.S. Paghel

Counsel for the Respondents:
Sri G.K. Singh
Sri V.K. Singh
Sri M.K. Srivastava
& S.C.

(A)
Constitution
of
India
Art-226-
Seniority
of
teachers
working
in
recognized institutions-to be decided
from the date of valid and substantive
appointment-otherwise
cannot
be
treated to be member of main stream of
teacher.
616 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Held: Para 24

Inter se seniority between teachers of
particular cadre, has to be determined
with reference to their date of valid and
substantive
appointment
on
their
respective posts. Unless the teacher is
lawfully appointed in a grade, he cannot
be treated to be a member of the
mainstream of teachers of the cadre, so
as to claim a position in the seniority qua
the cadre concerned.

(B)
Constitution
of
India
Art-226
Alternative
remedy-
writ
petition
pending since long time -Counter and
rejoinder affidavits exchanged between
parties
-particularly
the
claim
of
seniority between substantive and adhoc
appointed teachers- held- no bar.

Held: Para 29

Since the parties have exchanged their
affidavits and have addressed the Court
on merits, this Court is satisfied that it
would not be fair, just and equitable in
the facts of the present case to insist
upon
the
petitioner
to
avail
his
alternative remedy after more than three
years of his . having filed the first writ
petition being Civil Misc. Writ Petition
No. 53693 Of 2003, more so when upon
the dispute of seniority, another issue
qua the ad-hoc appointment on the post
of Principal has intervened.
Case law discussed:
1988(8) SCC 529
1997(2) UPLBEC 1133
1991(1) SCC 544
1986 UPLBEC 44

(Delivered by Hon'ble Arun Tandon J.)

1. Heard Sri P.S. Paghel, Advocate
on
behalf
of
Ram
Lal
Tripathi,
(petitioner), Sri G.K. Singh and Sri V.K.
Singh, Advocates on behalf of Sri. Shiv
Bashadur singh (respondent no.5), Sri
M.K. Srivastava, Advocate on behalf of
Sri Sangam Lal Shukla (respondent no.6)
and learned Standing Counsel on behalf
of other respondents.

2. Mahabeer Intermediate College,
Bichhiya Bankat, Sant Ravi Das Nagar is
an institution recognized under the
provisions
of
U.
P.
Intermediate
Education Act, 1921. The provisions of
U. P. Secondary Education Services
Selection Board, 1982 and Rules and
Regulations framed there under are fully
applicable to the said institution.

3. Ram Lal Tripathi (petitioner) filed
Civil Misc. Writ Petition No 53693 of
2003 for quashing the seniority list dated
8th July, 4003 and further for a writ of
mandamus
commanding
the
Staterespondents to declare the petitioner to be
the senior most Lecturer in the institution.

4. Civil Misc. Writ Petition No.
38716 of 2006 has also been filed by Ram
Lal Tripathi (petitioner) for quashing the
order of the: District Inspector of Schools,
Sant Ravi Das Nagar dated 30th June,
2006 where under Shiv Bahadur Singh
(respondent no.5) has been appointed as
the Officiating Principal in view of
Section 18 of the U. P. Secondary
Education Services Selection Board Act,
1982. It has been provided under the same
order of the District Inspector of Schools
that in case the petitioner has any
grievance with regard to the seniority of
Sri Shiv Bahadur Singh,( respondent no.
5) ,he may file his objection before the
Manager. If the Manager decides against
against him, he may file an appeal before
the Regional Joint Director of Education.
Region concerned. Petitioner has also
prayed
for
a
writ
of
mandamus
commanding the respondents to give the
charge of Principal to the petitioner.
2 All] Ram Lal Tripathi V. State of U.P. and others
617
Facts

5. Ram Lal Tripathi ( Petitioner)
claims to have been appointed as C.T.
Grade teacher on 8th September, 1971
with the approval of District Inspector of
Schools, thereafter he was promoted in
LT Grade on 2nd January , 1984. Ram Lal
Tripathi was granted ad hoc promotion as
Lecturer on 26th September, 1991. Under
an order dated 3rd November, 2003, he
has been regularized on the post of
Lecturer w.e.f. 7th September, 1993 with
reference
to
section
33-C
of
UP
Secondary Education Services Board Act,
1982. (Reference Annexure-1 to the writ
petition).

6.

Sri
Shiv
Bahadur
Singh
(respondent no. 5) claims that he was
appointed as L.T. Grade teacher on 10th
December, 1974. He was confirmed on
the said post w.e.f. 10th December1975.
Thereafter he was promoted on ad hoc
basis as Lecturer (Sociology) on 25th
October, 1983 against a newly created
post of Lecturer Sociology.

7. The post of Lecture Sociology
was, however ,requisitioned to the to the
UP
Secondary
Education
Services
Selection Board, Allahabad and was
accordingly
advertised
for
direct
recruitment on 17th December, 1988
being Advertisement No. 3/1988-89.

8.

Sri
Shiv
Bahadur
Singh
(respondent no. 5) filed Civil Misc. Writ
Petition No. 1294 of 1989 challenging the
said selection. In the said writ petition an
interim order was granted by this Court
on 17th January, 1989,whereby it was
provided that in the meanwhile no
selection shall be made in pursuance to
the Advertisement dated 17th December,
1988. The interim order continued upto
13th July, 1998, when learned counsel for
the petitioner of the said writ petition,
namely, Shiv Bahadur Singh made a
statement that he does not want to press
the writ petition. The writ petition was
accordingly dismissed and the interim
order of this Court dated 17th January,
1989 was vacated.

9. It is claimed on behalf of Shiv
Bahadur Singh (respondent no. 5) that in
between he was regularized on the post of
Lecturer in view of section 33-A (1-A),
(1-B) and (1-C) as added to the UP
Secondary Education Services Selection
Board Act, 1982 w.e.f. 6th April, 1991.

10. Sangam Lal Shukla (respondent
no.6)
claims
that
he
was
initially
appointed as L.T. Grade teacher in the
institution on 10th December, .1974. He
was confirmed on the said post w.e.f. 10th
December,
1975.Thereafter
he
was
promoted on ad hoc basis as Lecturer
(Hindi) on 25thOctober, 1983 against a
newly created post of Lecturer (Hindi).

11. The post of Lecturer (Hindi) was
also requisitioned to the U.P. Secondary
Education
Services
Selection
Board,
·Allahabad
and
was
accordingly
advertised for direct recruitment on 17th
December, 1988 being Advertisement No.
3/1988-89.

12.

Sri
Sangam
Lal
Shukla
(respondent no.6) was also one of the copetitioners in Civil Misc. Writ Petition
No.
1294
of
1989,
whereby
the
advertisement was challenged. He was
also the beneficiary of the order granted,
whereby selection in pursuance to the said
advertisement was stayed. The writ
petition as recorded above was got
dismissed as withdrawn. Sri Sang am Lal
618 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Shukla claims that in between he was
regularized on the post of Lecturer
(Hindi) w.e.f. 6th Apirl, 1991 in view of
the section 33-A (1-A), (1-B) and (1-C) as
added to the U.P. Secondary Education
Services Selection Board Act, 1982 w.e.f.
6th April, 1991, as per the order of the
District Inspector of Schools dated 25th
January, 1996.

13. Sri P.S. Baghel, learned counsel
for the petitioner points out that the stand
taken by respondent nos. 5 and 6 by
means of the counter affidavit in the
present writ petition runs contrary to their
stand: taken in Civil Misc. Writ Petition
No. 1294 of 1989, wherein it is claimed
that respondent nos. 5 and 6 applied in
response to the advertisement published
by the Committee of Management for ad
hoc appointment trough direct recruitment
against the newly created posts of
Lecturers in the institution. He refers to
paragraph-13 of Civil Misc. Writ Petition
No.1294, wherein it has been stated as
follows:

"13. That all the three petitioners are
working in the institution from their
respective
dates
of
appointment
as
Lecturers. The petitioners have been
appointed on substantive posts by direct
recruitment"

14. In these set of facts Sri P.S.
Baghel, learned counsel for the petitioner
submits that the seniority list published on
8th July, 2003 is patently illegal, inasmuch
as respondent nos. 5 and 6 cannot be
treated to be senior to the petitioner, the
regularization, which has been offered in
their favour on the post of Lecturers, was
illegal as on the date the order of
regularization was passed, respondent
nos. 5 and 6 were being continued in the
institution only because of an interim
order dated 17th January, 1989, passed in
their earlier Civil Misc. Writ Petition No.
1294 of 1989, whereby selection in
pursuance to the advertisement dated 17th
December, 1988 had been stayed and the
petitioner- teachers were permitted to
continue and paid salary.

15. The claim of respondent nos. 5
and 6 for regularization as Lecturers could
not have been considered in view of the
Judgment of the Hon'ble Supreme Court
of India in the case of State of U.P. and
others Vs. Raj Karan Singh, reported in
1998 (8) SCC 529 as well as in the case of
Committee of Management, Arya Nagar
Inter College, Arya Nagar, Kanpur and
another Vs. Sree Kumar Tiwary and
another reported in (1997) 2 UPLBEC
1133. It has been further clarified that
once the respondent nos. 5 and 6 have got
their writ petition dismissed as not
pressed on 13th July, 1998 and the interim
order dated 17th January, 1989 having
been vacated, their continuance in the
institution also ceases by operation of
law. The interim order emerges in the
final order, therefore, it cannot be said
that respondent nos. 5 and 6 were in
continuous service in the institution as
Lecturers, so as to claim benefit of
regularization.

16. On behalf of respondents
reliance has been placed upon the
judgment of Hon'ble Supreme Court of
India in the case of A.K. Bhatnagar and
Others vs. Union of India and others
reported in (1991) 1 SCC 544, as well as
upon the judgment of this Court in. the
case of Vijay Narayan Sharma Vs.
District Inspector of Schools, Etawah
and others reported in 1986 UPLBEC 44
specifically Paragraphs 25 and 26, and in
2 All] Ram Lal Tripathi V. State of U.P. and others
619
the case of Rama Shanker Mishra Vs.
Joint Director of Education, Varanasi
Region, Varanasi and others reported in
2001
(43)
ALR
650
specifically
Paragraph 17, for the purposes of
alleging that validity of appointment and
promotion already granted, cannot be
challenged
while
questioning
the
seniority.

17. On the issue of seniority is
dependent the right of the parties to be
appointed as officiating Principal of the
institution,the vacancy whereof has been
caused on 30th June, 2006 with the
retirement of earlier incumbent holding
the office.

18. From the facts as recorded
above, it is no more in dispute that
respondent nos. 5 and 6 in their writ
petition no. 1294 of 1989 specifically
paragraphs 8 to 13, stated that they had
applied in pursuance to the advertisement
dated 17th December, 1988 published by
the Committee of Management for the
purposes of making ad hoc appointment
by direct recruitment on the post of
Lecturers
in
Sociology
and
Hindi
respectively, which were newly created
posts. The respondent nos. 5 and 6 were
selected and offered ad hoc appointment
in pursuance thereto. The continuance of
respondent nos. 5 and 6 as ad hoc
Lectures in the Institution subsequent to
the publication of the advertisement dated
17th December, 1988, was based upon an
interim order obtained by them in Civil
Misc. Writ Petition No. 1294 of 1989.
During the pendency of the writ petition,
their claim for regularization could not
have been considered, in view of the
judgment of the Hon'ble Supreme Court
of India in the case of State of U.P. and
others Vs. Raj Karan Singh (Supra). The
relevant portion whereof reads as follows:

"Besides, merely because a person
continues under the interim orders of the
Court, such continuance on the post
cannot and, in this case, does not confer
on him any right for continuance, it does
not enhance his case for regularization. It
is only an interim arrangement pending
decision by the Court and cannot disturb
the position in law or equities, as on the
date of the petition."

19. The Hon'ble Supreme Court of
India in the case of as well as in the case
of Committee of Management, Arya
Nagar Inter College, Arya Nagar,
Kanpur and another (Supra), has held as
follows:

"But the crucial question is: whether
the respondent was continuously serving
the institution under Clause (c) of Section
33-B (i)? Admittedly, the service of
respondent came to be terminated w.e.f
June 30, 1988. Though he had obtained
the stay order and continued to be in
service, it was not by virtue of his own
right under an order of appointment, he
continued in the office with permission of
the management."

20. The Hon'ble Supreme Court of
India has explained that continuance
under an interim order of the Court cannot
confer any right for continuance nor can it
enhance the cases of writ petitioners for
regularization. In is only an interim
arrangement pending decision by the
Court, status on the date of the petition
cannot be disturbed in law or equity.

21. The position has been made
worst by respondent nos. 5 and 6 by their
620 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
own act of getting their writ petition no.
1294 of 1989 dismissed as not pressed,
whereby the interim order dated 17th
January, 1989 was also discharged. The
Hon'ble Supreme Court of India in the
case of M/s Shree Chamundi Mopeds
Ltd. Vs. Church of South Indian Trusts
Assn. CSI Cinod Secretariat, Madras
reported
in 1992 (3) JUDGMENT
TODAY 98 has specifically held that once
the interim order is discharged/vacated
writ petition is dismissed, it is to be
presumed such an order was never
granted in the eye of law.

22. In view of the aforesaid legal
consequences flowing from continuance
in employment of respondent nos. 5 and 6
because of the grant of the interim order
and ultimately vacation of the same,
cannot be held to be in continuance
service in the Institution in the eye of law,
so as to claim benefit of Section 33-A of
the U. P. Secondary Education Services
Selection Board Act, 1982.

23. As a logical consequences, this
Court
is
inclined
to
hold
that
regularization offered to respondent nos. 5
and 6 as has been done in the facts of the
present case, cannot confer any legal right
upon respondent nos. 5 and 6 to claim to
be the lawful members of the cadre of
Lecturers.

24. Inter se seniority between
teachers of particular cadre, has to be
determined with reference to their date of
valid and substantive appointment on
their respective posts. Unless the teacher
is lawfully appointed in a grade, he cannot
be treated to be a member of the
mainstream of teachers of the cadre, so as
to claim a position in the seniority qua the
cadre concerned.

25. The legal position in that regard
has been settled by the Hon'ble Supreme
Court of India in the case of Shitala
Prasad Shukla vs. State of U.P. &
Others, reported in 1986 UPLBEC 473
specifically paragaraph 9 has held as
follows:

"9. An employee must belong to the
same stream before he can claim seniority
vis-a-vis others. One who belongs to the
stream
of
lawfully
and
regularly
appointed employees does not have to
contend with those who never belonged to
that stream. they having been appointed
in an irregular manner. Those who have
been irregularly appointed belong to a
different
stream.
and
cannot
claim
seniority vis-a-vis those who have been
regularly and properly appointed till their
appointments became regular or or
regularized by the appointing authority as
a result of which their stream joins the
regular stream. At the time of confluence
with the regular stream, from the point of
time they join the stream by virtue of the
regularization, they can claim seniority
vis a vis those who join the same stream
later. The late comers to the regular
stream cannot steal a march over the
early arrivals in the regular queue."

26. In such circumstances it is held
that respondent nos. 5 and 6 are not
members of the mainstream of lecturers in
the
institution,
they
cannot
claim
consideration
of
their
right
of
appointment as Ad-hoc Principal under
section 18 of the U.P. Secondary
Education Services Selection Board Act,
1982 against a vacancy which has been
caused on 30th June, 2006.

27. In view of the said legal position
as explained by the Hon'ble Supreme
2 All] Sunil Kumar Yadav V. State of U.P. and others
621
Court of India the judgments relied upon
by the respondents can be of no help and
are distinguishable on facts.

28. At this stage this Court may also
deal with the issue/objections raised on
behalf of respondents to the effect that the
petitioner has an remedy by way of an
appeal against the determination of the
seniority
before
the
Regional
Joint
Director of Education concerned and
therefore, the writ petition may be
dismissed on the ground of statutory
alternative remedy.

29. Since the parties have exchanged
their affidavits and have addressed the
Court on merits, this Court is satisfied that
it would not be fair, just and equitable in
the facts of the present case to insist upon
the petitioner to avail his alternative
remedy after more than three years of his .
having filed the first writ petition being
Civil Misc. Writ Petition No. 53693 Of
2003, more so when upon the dispute of
seniority, another issue qua the ad-hoc
appointment on the post of Principal has
intervened.

30. In view of the aforesaid the
seniority list issued by the Authorized
Controller of the institution dated 8th July,
2003 as well as the order 30th June, 2006
issued by the District Inspector of
Schools, Sant Ravi Das Nagar, Bhadohi
offering appointment to Sri Shiv Bahadur
Singh (respondent no.5) on the post of
officiating principal cannot be legally
sustained and are hereby quashed.

31. Both the writ petitions are
accordingly allowed. Respondents are
directed to offer ad-hoc appointment on
the
post
of
Principal,
strictly
in
accordance with Section-18 of the U.P.
Secondary Education Services Selection
Board Act, 1982 and in light of the
observations made above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2007

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 23722 of 2005

Sunil Kumar Yadav

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

Counsel for the Petitioner:
Sri Om Prakash Srivastava
Sri S.C. Srivastava

Counsel for the Respondents:
S.C.

Constitution
of
India,
Art-226-
Education- petitioner appeared in High
School examination- in Science I, II and
III paper awarded 19, 0, and 24 marks-
similarly in Social Science I and II paper
awarded 30 and 0 marks- result of
Scrutiny communicated as " no change"-
despite of repeated time granted no
counter affidavit filed- officers appeared
in person- informed to Court as the
answer sheet of both subjects missing-
average marks awarded- nothing about
action taken against such negligent and
guilty officer- held- the student who
passed in Ist division wrongly informed
to be passed in second division- for
mental shock and agony- Board to pay
compensation of Rs.50,000/- with liberty
to recover the same from the person
held liable for such negligence.

Held: Para 4

A student, who had actually passed with
good first division marks, was declared
pass with second division marks, and he