# Ram Piarey v. State of U.P. & Ors

- **Citation:** Writ-A No. 16680 of 1991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-15
- **Case number:** Writ-A No. 16680 of 1991
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-piarey-v-state-of-u-p-ors-45156
- **Pages:** 11

## Headnote

A. Service law- U.P. Secondary Education
Services
Commission
(Removal
of
Difficulties)
(Second)
Order,
1981
-
Section 18 of the Act, 1982 read with
Clause 2 of - Appointment short term
vacancy must be filled observing the
provisions of law

Absence of Assistant Teacher (C.T. Grade), Sri
Harish Chand Pandey without prior permission
from the competent authority resulted in a short
term vacancy which could be filled by the
Management following the procedure prescribed
under Section 18 of Act, 1982 read with Clause
2
of
U.P.
Secondary
Education
Services
Commission (Removal of Difficulties) (Second)
Order, 1981. Non observance of such procedure
has rendered the ad hoc appointment of
Shatrughan Singh or Ram Piarey patently illegal
and void ab initio

B.
Ban
on
appointment
-
State
Government has power to declare any
post as of dying cadre or even ban
appointment on such posts

Writ Petition rejected. .(E-10)

List of cases cited

## Text

3-5 All. Ram Piarey Vs. State of U.P. & Ors.
991
considered view that the petitioners are not
entitled to any relief and the petitions must
fail.

21.

The
writ
petitions
are
consequently dismissed.
----------
(2020)03-05ILR A991
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Writ-A No. 16680 of 1991
&
Writ-A No. 11177 of 2017
&
Writ-A 34882 of 2017

Ram Piarey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri D.V. Singh, Sri J.P. Yadav, Sri Raj
Mohan Saggi, Sri V.K. Singh

Counsel for the Respondents:
Sri P.P. Srivastava, Sri A.K. Srivastava, Sri
D.V. Singh, S.C., Sri S.P. Bharti

A. Service law- U.P. Secondary Education
Services
Commission
(Removal
of
Difficulties)
(Second)
Order,
1981
-
Section 18 of the Act, 1982 read with
Clause 2 of - Appointment short term
vacancy must be filled observing the
provisions of law

Absence of Assistant Teacher (C.T. Grade), Sri
Harish Chand Pandey without prior permission
from the competent authority resulted in a short
term vacancy which could be filled by the
Management following the procedure prescribed
under Section 18 of Act, 1982 read with Clause
2
of
U.P.
Secondary
Education
Services
Commission (Removal of Difficulties) (Second)
Order, 1981. Non observance of such procedure
has rendered the ad hoc appointment of
Shatrughan Singh or Ram Piarey patently illegal
and void ab initio

B.
Ban
on
appointment
-
State
Government has power to declare any
post as of dying cadre or even ban
appointment on such posts

Writ Petition rejected. .(E-10)

List of cases cited

1. Dr. Ramji Dwivedi Vs. St. of U.P. & ors 1983
(3) SCC 52

2. Durgesh Kumari Vs. St. of U.P. & ors 1995 (3)
UPLBEC 1387

3. Prabhat Kumar Sharma & ors. Vs. St. of U.P.
& ors. A.I.R. 1996 SC 2638

4. Shesh Mani Shukla Vs. D.I.O.S., Deoria & ors
J.T. 2009 (10) S.C. 309

5. Jahaj Pal Vs. District Inspector of Schools &
ors. 2019 (3) ADJ 424

6. U.O.I. & anr. Vs. Raghuwar Pal Singh 2018
(15) SCC 463

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Raj Mohan Saggi,
Advocate
for
petitioner
and
learned
Standing Counsel, Sri S.P. Bharti and Sri
Arvind Yadav, Advocates for respondents
in Writ Petition No. 16680 of 1991
(hereinafter referred to as "First Petition");
Sri Arvind Yadav, Advocate for petitioner
and learned Standing Counsel, Sri R.M.
Saggi and Sri S.P. Bharti, Advocates for
respondents in Writ Petition No. 11177 of
2017 (hereinafter referred to as "Second
Petition"); and, Sri Uma Nath Pandey,
Advocate
for
petitioner
and
learned
Standing Counsel as well as Sri Arvind
Yadav, Advocate for respondents in Writ
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition No. 34882 of 2017 (hereinafter
referred to as "Third Petition").

2. First Petition has been filed by sole
petitioner-Ram Piarey praying for a writ of
mandamus commanding respondents to
permit him to continue to function as Ad
hoc Teacher in C.T. Grade at Janta
Uchchattar Madhyamik Vidyalaya, Deokali
Kala, District Basti (hereinafter referred to
as "College") and pay salary w.e.f.
12.12.1989,
i.e.,
from
the
date
of
appointment till a candidate duly selected
by Commission joins the post.

3. Brief facts as borne out from
pleadings of First Petition are that College
is a recognized, aided, secondary education
institution governed by the provisions of
U.P. Intermediate Education Act, 1921
(hereinafter referred to as "Act, 1921").
For the purpose of payment of salary of
teaching and non-teaching staff it is
governed by the provisions of Uttar
Pradesh High Schools and Intermediate
College (Payment of Salaries of Teachers
and
Other
Employees)
Act,
1971
(hereinafter referred to as "Act, 1971") and
for recruitment of Teaching staff it is
governed by the provisions of U.P.
Secondary Education Services Selection
Board Act, 1982 (hereinafter referred to as
the "Act, 1982").

4. One, Sri Harish Chandra Pandey,
Assistant Teacher (C.T. Grade) suddenly
absented from College causing a short term
vacancy. The Committee of Management of
College treated said vacancy to be substantive
and requisition and sent information to District
Inspector of Schools, Basti (hereinafter referred
to as "DIOS") so as to forward requisition to
U.P. Secondary Education Services Selection
Board (hereinafter referred to as "Board") but
did not receive any recommendation within two
months. Consequently Management proceeded
to make ad hoc appointment under Section 18
of Act, 1982, vide resolution dated 01.10.1989.
Vacancy was notified on notice board of
College and thereafter Selection Committee
made recommendation placing names of Sri
Shatrughan Singh at Serial No. 1, Ram Piarey
(petitioner) at Serial No. 2 and Sri Shyam
Narayan Singh at Serial No. 3. Appointment
letter was issued to Sri Shatrughan Singh on
12.11.1989 which was allegedly received by
him on 13.11.1989 but he did not join within
the period of 15 days. Thereafter Management,
in its meeting dated 03.12.1989, resolved to
cancel said appointment letter issued to Sri
Shatrughan Singh and decided to issue
appointment letter to next candidate, i.e.,
petitioner. Consequently appointment letter
dated 05.12.1989 was issued to petitioner,
pursuant whereto he joined on 12.12.1989.
Intimation was given by Management of
College to DIOS vide letter dated 15.12.1989
stating that appointment letter issued to Sri
Shatrughan Singh was cancelled since he did
not join and petitioner has now been appointed,
therefore, his appointment be approved. DIOS
however neither communicated any approval to
petitioner's
appointment
nor
made
any
arrangement for payment of salary. It appears
that DIOS did not recognize appointment in
view of Government Order dated 11.08.1989
whereby fresh appointment in C.T. Grade was
banned on the ground that C.T. Grade has been
declared a dying cadre. It is also stated in the
First Petition that a radiogram was issued by
Government on 20.06.1989 stopping all
appointments in C.T. Grade in State of U.P.

5. Petitioner when filed First Petition
made reference to some writ petitions
pending at that time wherein validity of
aforesaid radiogram dated 20.06.1989 was
challenged, i.e., Writ Petitions No. 22054
of 1989, Dr. Hari Govind Mishra and
others vs. District Inspector of Schools,
3-5 All. Ram Piarey Vs. State of U.P. & Ors.
993
Deoria and 2639 of 1990, Subhash and
another vs. District Inspector of Schools,
Deoria and others, alleging that since he is
continuously working, entitled for payment
of salary.

6. When First Petition initially came
up before this Court for admission on
30.05.1991, Court connected it with Writ
Petition No. 2639 of 1990 and directed it to
be listed alongwith that. Subsequently on
16.12.1991 First Petition was further
directed to be connected with Writ Petition
No. 22244 of 1990.

7. Respondent-3 initially filed counter
affidavit sworn on 26.03.1992 stating that
Sri Harish Chand Pandey though absented
without any prior permission but no
substantive vacancy occurred since he was
never terminated and no such information
was
given
to
DIOS.
Therefore,
Management's action of assuming that a
substantive vacancy has occurred was
clearly illegal and entire exercise of ad hoc
appointment is also illegal. It was also
pointed out that in anticipation of approval,
Sri Shatrughan Singh was given ad hoc
appointment vide appointment letter dated
12.11.1989 which was not approved by
DIOS vide letter dated 13.07.1990 and it
was challenged by Sri Shatrughan Singh in
Writ Petition No. 22244 of 1990, which
was pending.

8. Another counter affidavit has been
filed on behalf of Respondent-3 in First
Petition, sworn on 21.07.2010. It is stated
tharein that Sri Harish Chand Pandey,
Assistant Teacher C.T. Grade absented
himself without prior permission from
01.07.1989 to 16.10.1989. During aforesaid
period of absence of about three and half
months, Management itself proceeded to
make ad hoc appointment by placing an
advertisement on the notice board of
College,
inviting
applications
from
09.10.1989 to 16.10.1989. Total four
applications
were
received
pursuant
whereto selection was made and Sri
Shatrughan Singh was issued appointment
letter dated 12.11.1989 appointing him on
ad hoc basis as Assistant Teacher C.T.
Grade.
Appointment
letter
of
Sri
Shatrughan Singh which was forwarded to
DIOS was returned by DIOS vide letter
dated 13.07.1990 disapproving the same on
that ground that C.T. Grade has already
been declared a dying cadre and no fresh
appointment can be made on said post. In
the
meantime
Sri
Shatrughan
Singh
claimed that he had already joined on
15.11.1989 and challenging DIOS letter
dated 13.07.1990 he filed Writ Petition No.
22244 of 1990 wherein an interim order
was passed on 24.08.1990 to the following
effect:

"In the meantime it is directed
that till a duly selected candidate joins the
post in question or the services of the
petitioner are terminated in accordance
with law the petitioner shall be allowed to
continue on the said post and paid salary
which is due to him, in if he has functioned
on the said post. If he functions on the said
post, he shall be entitled to get salary in
accordance to law."

9. Respondent-3 has further stated in
his counter affidavit that Ram Piarey was
never appointed nor could have been
appointed on the said post of Assistant
Teacher C.T. Grade. In order to comply
with aforesaid interim order, necessary
instructions were issued to Management
but
neither
Management
allowed
Shatrughan Singh to work nor forwarded
salary bill. In this regard a letter dated
16.07.1991 was also sent by DIOS
994 INDIAN LAW REPORTS ALLAHABAD SERIES
informing that Management's claim for
seeking approval for appointment of Ram
Piarey is not correct and it should proceed
in accordance with interim order passed by
this Court in Writ Petition No. 22244 of
1990. Since Management did not allow
Shatrughan Singh to work, DIOS passed
order dated 09.12.1991 attaching Sri
Shatrughan Singh to his office and salary
was paid to him.

10. Management also filed counter
affidavit
sworn
by
Dinesh
Chandra
Srivastava, Manager of the then Committee
of Management of College stating that due
to absence of Sri Harish Chand Pandey, a
substantive vacancy arose, whereupon
intimation was given to DIOS and
Management then proceeded to make ad
hoc appointment under Section 18(1)(b) of
Act, 1982 vide resolution dated 01.10.1989
and appointed Sri Shatrughan Singh vide
appointment letter dated 12.11.1989 but he
failed
to
join.
Thereafter
another
appointment
letter
was
issued
on
05.12.1989 appointing Sri Ram Piarey as
Assistant Teacher C.T. Grade. Ram Piarey
joined College on 12.12.1989 and working
regularly. With regard to compliance of
interim order dated 24.08.1990 it is said
that Management enquired into matter and
found that Sri Shatrughan Singh was not
working in College hence he could not
have been paid salary since interim order
was conditional that if Shatrughan Singh
was working on the post only then he was
entitled for salary.

11. It is also evident from record that
Writ Petition No. 22244 of 1990 has
already been dismissed as infructuous on a
statement
made
by
counsel
of
Sri
Shatrughan Singh on 06.07.2004 and the
order reads as under:

"Counsel for the petitioner stated
that in view of the orders of District
Inspector
of
Schools,
Basti
dated
05.02.2002, the petitioner has get L.T.
Grade. The prayers made in the writ
petition
have,
therefore,
become
infructuous. The writ petition is dismissed
as infructuous." (emphasis added)

12. Second Petition has been filed by
Committee of Management of College and
Sri
Rahul
Srivastava,
Manager
of
Committee of Management impleading Sri
Shatrughan Singh and Sri Ram Piarey, both
as Respondents-4 and 5. It has also
reiterated the initial facts as stated in First
Petition that due to unauthorized absence of
Sri
Harish
Chand
Pandey,
Assistant
Teacher (C.T. Grade), Management treated
to have occurred a substantive vacancy and
passed resolution on 01.10.1989 for making
ad hoc appointment. After advertisement of
vacancy on the notice board of College,
selection was held wherein a merit list was
prepared in which Shatrughan Singh was
placed at Serial No. 1; Ram Piarey at Serial
No. 2 and Shyam Narayan Singh at Serial
No. 3. Appointment letter dated 12.11.1989
was issued to Shatrughan Singh, who failed
to
join.
Thereafter
resolution
dated
03.12.1989 was passed and Ram Piarey
was
issued
appointment
letter
dated
05.12.1989
who
joined
College
on
12.12.1989. Documents were forwarded to
DIOS seeking approval of appointment of
Ram Piarey on 15.12.1989. However,
DIOS
vide
letter
dated
13.07.1990
cancelled selection of Respondent-4 and
returned documents on the ground that C.T.
Grade has declared dying cadre, therefore,
no appointment could be made. DIOS did
not take any notice of appointment of Ram
Piarey. The letter dated 13.07.1990 sent by
DIOS, reads as under:
3-5 All. Ram Piarey Vs. State of U.P. & Ors.
995

^^vkids i= la[;k&'kwU; fnukad 20-1189 ftlds vUrxZr fo|ky; ds lh0Vh0 xzsM ds
lgk;d v/;kid Jh gfj'pUnz ik.Ms; tks fnukad
1-7-89 ls vpkud ykirk gks x;s gSa] ds fjDr
LFkku ij Jh 'k=q/u flag] ,e0,0 ch0,M0 dh
lh0Vh0 xzsM esa fnukad 12-11-89 ls izLrkfor rnFkZ
vLFkk;h fu;qfDr izdj.k dks vLohd`r djrs gq,
ewy :i esa bl funsZ'k ds lkFk okil fd;k tkrk
gS fd 'kklu ,oa foHkkx }kjk lh0Vh0 xzsM ds
leLr inksa dks e`r Dying Cadre Js.kh dk
?kksf"kr dj fn;k x;k gSA QyLo:i lh0Vh0 xszsM
esa fdlh fjfDr ij fu;qfDr fd;s tkus dk fo/kkur%
dksbZ vkSfpR; ugha mRiUu gksrk gSA**

"With reference your letter No.
Nil dated 20.11.1989 proposed resolution
dated 12.11.1989, for ad hoc appointment
of Shatrughan Singh M.A. B.Ed. in C.T.
Grade on the vacancy caused by Assistant
Teacher Sri Harish Chand Pandey in C.T.
Grade who has all of sudden absented from
01.07.1989, is rejected and is being
returned in original with direction that all
the posts of C.T. Grade have been declared
as "dying cadre" by the Government and
the department. Consequently, there does
not
arise
any
justification
for
any
appointment legally against any vacancy in
C.T. Grade. (English translation by Court)
(emphasis added)

13. This order of DIOS was challenged
by Sri Shatrughan Singh in Writ Petition No.
22244 of 1990 wherein a conditional interim
order was passed on 24.08.1990.

14. DIOS sent another letter dated
27.02.1991 enquiring from Management of
College as to how selection and appointment
was made in C.T. Grade when it was already
declared a dying cadre and why Shatrughan
Singh was not allowed to sign attendance
register. Thereafter, Ram Piarey filed First
Petition. DIOS passed order on 16.07.1991
directing Management to ensure payment of
salary to Shatrughan Singh. College informed
DIOS vide letter dated 11.03.1991 that
Shatrughan Singh has never joined post and
instead Ram Piarey was appointed who has
joined post and working. DIOS put pressure on
Management to allow Shatrughan Singh to join
and thereafter passed order on 15.11.1991
making accounts to be operated by single
operation. Another order was passed by DIOS
on 09.12.1991 directing that Shatrughan Singh
shall stand attached with the office of DIOS
w.e.f. 02.08.1990. Said order dated 09.12.1991
passed by DIOS reads as under:

^^vkids izkFkZuki= fnukad 10-09-91] 20-0991 ,oa 7-10-91 rFkk bl dk;kZy; Lrj ls fuxZr gq,
iwoZ vkns'kksa o funsZ'kksa ds ifjizs{; esa ;g lwfpr fd;k
tkrk gS fd turk b.Vj dkyst nsodyka ds
vf/kdkfj;ksa dks vko';d funsZ'k ds mijkUr Hkh dk;ZHkkj
xzg.k ugha djk;k x;kA QyLo:i vkidks fnukad 2-890 ds iwokZUg ls bl dk;kZy; ls lEc) fd;k tkrk
gSA vki d`i;k vkt dh frfFk ls viuh mifLFkfr dk
;ksxnku v/kksgLrk{kjh ds dk;kZy; esa vfxze vkns'kksa
rd lqfuf'pr djsaA osru Hkqxrku ds izdj.k ij ckn
esa fopkj lEHko gksxkA vkns'k dk Rofjr lvuqikyu
lqfuf'pr djsaA**

"With
reference
to
your
applications dated 10.09.91, 20.09.91 &
7.10.91
and
orders/directions
issued
earlier on the level of this office, it is
informed that even after there being
necessary directions for the officers of the
Janta Inter College, Devkalan, joining was
not given. Hence, you are attached to this
office w.e.f. 2.8.90 (Forenoon). Please
ensure your presence from today in the
office of the undersigned till further orders.
Matter related to the payment of salary
shall be considered later. Immediate
compliance of the order be ensured."

 (English translation by Court)

(emphasis added)

15. During pendency of Second
Petition, DIOS passed order on 05.02.2002
granting L.T. Grade to Sri Shatrughan
996 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh and he got his Writ Petition No.
22244 of 1990 dismissed as infructuous on
06.07.2004.

16. It appears that subsequently Joint
Director of Education, Basti (hereinafter
referred to as "JDE") made inspection of
the office of DIOS on 21.07.2016 and
passed an order on 22.07.2016 observing
that Shatrughan Singh was found working
in the office of DIOS though he was said to
have been appointed as Assistant Teacher
(C.T. Grade) in the College, hence this
arrangement is illegal and DIOS could not
have allowed Shatrughan Singh to remain
attach with his office and should not have
paid salary, instead should have appointed
an Authorized Controller in the College,
Management was not complying with the
order of DIOS. Consequently, notice was
issued to Management which was replied
by
Management
vide
letter
dated
23.06.2016 and 05.08.2016. Management
as well as both persons, Shatrughan Singh
and Ram Piarey, were then directed by
DIOS to appear in his office for oral
hearing. Management again submitted
representation dated 20.10.2016 alongwith
his evidence.

17. Thereupon Shatrughan Singh filed
a Writ Petition No. 45383 of 2016
challenging Joint Director of Education's
letter dated 22.07.2016. This writ petition
was disposed of vide judgment dated
21.09.2016, which reads as under:

"Heard learned counsel for the
petitioner
and
the
learned
Standing
Counsel for the respondents.

The petitioner was posted as an
Assistant Teacher in Janta Inter College,
Devkali Kala, Sant Kabir Nagar but it
appears that the management of the
institution was not letting him to work and
pay his salary therefore under some order
passed by the District Inspector of Schools,
Sant Kabir Nagar, he was attached to the
office of the District Inspector of Schools,
Sant Kabir Nagar and was allowed to work
as an office assistant and paid salary under
Section 3(3) of the Payment of Salaries Act,
1971. Thereafter, it appears, an inspection
was carried out and the continued
attachment of the petitioner in the office of
the District Inspector of Schools, Sant
Kabir Nagar was not found to be justified
and, therefore, the Joint Director of
Education, Basti Region, Basti called for
report from District Inspector of Schools,
Sant Kabir Nagar by impugned notice
dated 22nd July, 2016 and, in the
meantime, attached the petitioner to his
own office.

The case of the petitioner is that
there is no fault on the part of the petitioner
if he had been attached to the office of the
District Inspector of Schools, Sant Kabir
Nagar but he apprehends that his salary
may not be paid on account of the order of
attachment.

As, admittedly, report has been
called for from the District Inspector of
Schools, Sant Kabir Nagar and not from
the petitioner, the apprehension of the
petitioner is misplaced. It is expected that
the Joint Director, Basti Region, Basti
would
pass
appropriate
order
in
accordance with law to ensure that the
petitioner is placed at an appropriate
place. Accordingly, this writ petition is
disposed of giving liberty to the petitioner
to file a fresh writ petition if any penal
action is taken against him."

18. Thereafter JDE passed order dated
31.01.2017 observing that attachment of
Shatrughan Singh in the office of DIOS
was not justified and, therefore, Shatrughan
Singh should be allowed to join the College
3-5 All. Ram Piarey Vs. State of U.P. & Ors.
997
since he was appointed by Management
and payment of salary should be made on
his working in the College. The Second
Petition has been filed by Management
challenging this order of JDE.

19. Third Petition has been filed
by Shatrughan Singh. I do not find it
appropriate to reiterate the facts upto
the stage when JDE passed order dated
31.01.2017 which has been challenged
by Management in Second Petition and
only subsequent events which have led
to Third Petition would be relevant. It is
stated by Shatrughan Singh-petitioner
in Third Petition that he was relieved
vide order dated 09.02.2017 passed by
JDE with further direction to join
College forthwith and Management was
directed to allow Shatrughan Singh to
join and then take steps for payment of
salary. DIOS also passed order dated
13.02.2017 directing Management to
ensure joining of Shatrughan Singh in
the College. Shatrughan Singh appeared
before Management of College on
17.02.2017 but he was refused to join,
whereupon
Shatrughan
Singh
filed
representation
before
DIOS
on
20.02.2017. DIOS in furtherance sent a
report vide letter dated 09.03.2017 to
JDE requesting for appropriate order in
the matter. JDE sent letter dated
23.03.2017 directing DIOS to take
appropriate steps to ensure joining of
Shatrughan
Singh
in
College.
Thereupon DIOS sought permission to
initiate
proceedings
against
Management for single operation of
accounts. Show cause notice dated
26.05.2017 was issued by DIOS to
Management and thereafter DIOS sent
letter dated 06.06.2017 recommending
appointment of Authorized Controller
in College. JDE vide order dated
03.07.2017
superseded
Management
and appointed Authorized Controller in
exercise of power under Section 6(3) of
Act, 1971. Thereafter surreptitiously
JDE passed order dated 12.07.2017
recalling his order dated 03.07.2017.
Shatrughan
Singh
has
filed
Third
Petition challenging this order dated
12.07.2017 passed by JDE.

20. After hearing learned counsel
for parties, in my view, the issues
which need to be considered in this
matter are:

(I) Whether their occurred any
vacancy whatsoever due to alleged
unauthorized absence of Sri Harish
Chand Pandey, Assistant Teacher C.T.
Grade and if so the nature of vacancy,
whether it was a short term vacancy or
substantive
vacancy
and
which
procedure for ad hoc appointment was
to be followed by Management.

(II) Whether it was open to
Management to make any ad hoc
appointment on the post of Assistant
Teacher (C.T. Grade) when C.T. Grade
was declared a dying cadre and fresh
appointments thereon were banned/
stopped by State Government.

(III) Whether appointment of
Shatrughan Singh or as the case may be
of Sri Ram Piarey, at all, was made
validly by Management so as to entitle
any of them or both of them to claim
right to hold the post and/or to claim
salary from State Exchequer.

21. The above facts clearly show that
here is a Management of a College which
acted patently illegal since its very
inception and thereafter even educational
authorities added further illegality by their
unmindful
actions
and
by
non
998 INDIAN LAW REPORTS ALLAHABAD SERIES
communication of appropriate directions or
orders well in time.

22. Now coming to first question, it is
an
admitted
case
of
parties
that
substantively appointed Assistant Teacher
(C.T. Grade), Sri Harish Chand Pandey,
suddenly absented himself without prior
permission from competent authority, i.e.,
Management of College. Said absence per
se did not result either in termination of
service of Sri Harish Chand Pandey nor any
order of termination was ever passed by
competent authority. Therefore, at the best
it can be said that absence of Sri Harish
Chand Padey, Assistant Teacher C.T.
Grade had resulted in a short term vacancy
which could have been filled in by
Management
following
the
procedure
prescribed under Section 18 of Act, 1982
read with Clause 2 of U.P. Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981
(hereinafter referred to as the "Second
Order"). The first question, therefore, is
answered
by
holding
that
alleged
unauthorized absence of Harish Chand
Pandey, Assistant Teacher (C.T. Grade)
resulted in a short term vacancy and ad hoc
appointment could have been made only
after following procedure prescribed under
Section 18 read with Clause 2 of Second
Order.

23. Coming to second question, it is
evident from record that by radiogram
dated 20.06.1989 appointment on C.T.
Grade were banned by State Government.
It is also not in dispute that C.T. Grade has
been
declared
a
dying
cadre
vide
Government Order No. 3299/15-7/8911(1361)/89 Shiksha Anubhag-7 dated
11.08.1989.
The
power
of
State
Government
banning
appointment
of
Teachers has been upheld by Supreme
Court with reference to Section 9 of Act,
1921 in Dr. Ramji Dwivedi vs. State of
U.P. and others 1983 (3) SCC 52 wherein
a radiogram of 07.04.1981 whereby all
appointments were stopped, upheld by
Supreme Court. Subsequently a Division
Bench of this Court in Durgesh Kumari
V. State of U.P. and others 1995(3)
UPLBEC 1387 has also recognized and
upheld power of State Government of
banning appointments of Teachers in
recognized aided educational institutions.
Therefore, when by radiogram dated
20.06.1989 appointment in C.T. Grade
were
stopped/
banned
by
State
Government, in my view, Management
could not have proceeded to make ad hoc
appointment on the post of Assistant
Teacher
(C.T.
Grade)
since
all
appointments are stopped. The second
question, therefore, is answered by holding
that appointment in C.T. Grade were
banned and order of State Government for
banning such appointments by issuing
radiogram was valid.

24. Now coming to third question,
here also I find no hesitation in stating that
even ad hoc appointment made by
Committee of Management is patently
illegal, void ab initio and nullity since
entire exercise is in the teeth of statutory
provisions, namely Section 18 of Act, 1982
read with Second Order, which has not
been followed at all.

25. If ad hoc appointment in a short
term vacancy could have been made by
Management with reference to Section 18
of Act, 1982, it was incumbent upon it to
follow the procedure prescribed in Clause 2
of Second Order. Clause 2 reads as under:

"2. Procedure for filling up
short term vacancies.--(1) If short term
3-5 All. Ram Piarey Vs. State of U.P. & Ors.
999
vacancy in the post of a teacher, caused by
grant of leave to him or on account of his
suspension duly approved by the District
Inspector of Schools or otherwise, shall be
filled by the Management of the institution,
by promotion of the permanent senior most
teacher of the institution, in the next lower
grade. The Management shall immediately
inform the District Inspector of Schools of
such promotion alongwith the particulars
of the teacher so promoted.

(2) Where any vacancy referred
to in clause (1) cannot be filled by
promotion, due to non-availability of a
teacher in the next lower grade in the
institution,
possessing
the
prescribed
minimum qualifications, it shall be filled by
direct recruitment in the manner laid down
in clause (3).

(3)(i) The management shall
intimate the vacancies to the District
Inspector of Schools and shall also
immediately notify the same on the notice
board of the institution, requiring the
candidates to apply to the manager of the
institution alongwith the particulars given
in Appendix 'B' to this Order. The selection
shall be made on the basis of quality point
marks specified in the Appendix to the
Uttar
Pradesh
Secondary
Education
Services
Commission
(Removal
of
Difficulties) Order, 1981, issued with
Notification No. Ma-4993/XV-7-1 (79)-
1981, dated July 31, 1981, hereinafter to be
referred to as the First Removal of
Difficulties Order, 1981. The compilation
of quality point marks shall be done under
the personal supervision of the Head of
Institution.

(ii) The names and particulars of
the candidate selected and also of other
candidates and the quality point marks
allotted to them shall be forwarded by the
manager to the District Inspector of
Schools for his prior approval.

(iii) The District Inspector of
Schools shall communicate his decision
within seven days of the date of receipt of
particulars by him failing which the
Inspector will be deemed to have given his
approval.

(iv) On receipt of the approval of
the District Inspector of Schools or, as the
case may be, on his failure to communicate
his decision within seven days of the receipt
of papers by him from the manager, the
management shall appoint the selected
candidate and an order of appointment
shall be issued under the signature of the
Manager.

Explanation.--For the purpose of
this paragraph--

(i) the expression 'senior most'
teacher means the teacher having longest
continuous service in the institution in the
Lecturer's grade or the Trained graduate
(L.T.) grade, or Trained undergraduate
(C.T.) grade or J.T.C. or B.T.C. grade, as
the case may be;

(ii) in relation to institutions
imparting instructions to women, the
expression 'District Inspector of Schools'
shall mean the 'Regional Inspectress of
Girls Schools';

(iii) 'short term vacancy' means a
vacancy which is not substantive and is of a
limited duration."

26. Apparently aforesaid procedure
has not been followed and, therefore,
whether it is the ad hoc appointment of
Shatrughan Singh or that of Ram Piarey,
both are nullity in the eyes of law and non
of them can be said to have been validly
appointed at all, therefore, have no right
either to hold post or to claim salary from
State Exchequer.

27. The effect of non compliance of
any part of Removal of Difficulties Order
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
has been considered by the Apex Court in
Prabhat Kumar Sharma & others Vs.
State of U.P. & others, A.I.R. 1996 SC
2638 wherein it has been held that the
procedure for ad hoc appointment under the
Removal of Difficulties Order is mandatory
and if the said procedure is not observed
strictly, the appointment, if any, shall be
void ab initio and would not confer any
right upon the incumbent either to hold the
post or to claim salary. This decision was
reiterated and followed by the Apex Court
recently in Shesh Mani Shukla Vs.
D.I.O.S., Deoria & others, J.T. 2009 (10)
S.C. 309. A Five Judges Bench of this
Court very recently has also taken similar
view in Jahaj Pal vs. District Inspector of
Schools and others, 2019(3) ADJ 424.

28. Recently Supreme Court in Union
of India and another vs. Raghuwar Pal
Singh, 2018(15) SCC 463 said that an
appointment which has not been made in
accordance with procedure prescribed, is a
nullity and for cancelling such appointment
even principle of natural justice are not
applicable.

29. This Court finds it strange that
DIOS concerned at no point of time even
made any attempt to analyze the statutory
provisions as also the action taken by
Management so as to make the things clear
and to give a clear direction to the parties.
On the contrary he (DIOS) also acted in
such a disarranged manner that benefit was
given to one or other party in a most illegal
manner. It shows some kind of collusion
also on the part of Management vis-a-vis
Ram Piarey and educational authority i.e.,
DIOS vis-a-vis Shatrughan Singh. In my
view, neither appointment of Shatrughan
Singh nor that of Ram Piarey was made
legally so as to entitle them for any benefit
whatsoever and all otherwise orders passed
by educational authorities are nullity in the
eyes of law.

30. In the circumstances, I have no
hesitation in dismissing First and Third
Petitions, i.e., Writ Petitions No. 16680 of
1991 and 34882 of 2017.

31. Since Shatrughan Singh has been
paid salary in a most illegal and arbitrary
manner, inasmuch as there is no provision
under which DIOS could have attached a
Teacher
of
a
Secondary
Education
Institution in his office and pay salary,
therefore, the aforesaid salary paid to
Shatrughan Singh is wholly illegal. I am
clearly of the view that aforesaid salary
which has been paid from State Exchequer
must be recovered from concerned erring
parties for which I hold Committee of
Management, concerned DIOS as also
Shatrughan Singh, individually as also
jointly responsible. Let entire amount of
salary which has been paid to Shatrughan
Singh, illegally, be recovered from all
three, namely, Committee of Management,
concerned DIOS as also Shatrughan Singh,
in equal proportion, and for this purpose
Principal Secretary, Secondary Education,
U.P. Government shall take appropriate
steps forthwith and ensure recovery as
directed above within six months. He shall
also file a compliance report to this Court
immediately after six months.

32. So far as Committee of
Management's writ petition is concerned,
here also it is evident that Management had
also acted in a most erratic and illegal
manner at every stage. However, in view of
the fact of dismissal of First and Third
Petition
holding
appointments
of
Shatrughan Singh and Ram Piarey, both as
illegal, there is no occasion now to allow
Shatrughan Singh to join College and in
3-5 All. Ram Dinesh Singh & Anr. Vs. State of U.P. & Ors.
1001
fact the Second Petition, i.e., Writ Petition
No. 11177 of 2017 stands infructuous and
is dismissed accordingly.
----------

(2020)03-05ILR A1001
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2020

BEFORE

THE HON'BLE ANIL KUMAR, J.

Writ-A No. 17620 of 2008

Ram Dinesh Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri P.K. Upadhyay, Sri Ratnesh Kumar
Pandey

Counsel for the Respondents:
C.S.C., Sri Ravi Shankar Prasad

Constitution of India- Article 226 -
administrative
action
suffering
from
illegality,
irrationality
and
procedural
impropriety are subject to judicial review

Writ Petition rejected.(E-10)

List of cases cited:

1. Council of Civil Service Unions (CCSU) Vs.
Minister for the Civil Service [1984] 3 All ER 935

2. Mohd. Yunus Vs. Mohd. Mustaqim & ors. AIR
1984 SC 38

3. Indian Overseas Bank Vs. Indian Overseas
Staff Canteen Workers' Union (2000) 4 SCC 245

4. U.O.I. Vs. Rajendra Prabhu (2001) 4 SCC 472

5. Tata Cellular Vs. U.O.I. (1994) 6 SCC 651
6. Heinz India Private Ltd. & anr. Vs. St. of U.P.
& ors. (2012) 5 Supreme Court Cases 443

7. Reid Vs. Secy. Of St. for Scotland (1999) 1
ALL ER 481 (HL)

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

1. Heard learned counsel for the
parties and perused the record.

2. By means of present writ petition,
petitioners have prayed for quashing of the
impugned order dated 26.12.2007 passed
by respondent no.3/Director of Education
(Basic), U.P. at Allahabad.

3. Facts, in brief, of the present case
are that in the city of Fatehpur, there is an
Institution known as Thawaishwar Purva
Madhyamik Vidyalaya, Thawai, Fatehpur
(in short 'Institution') is a recognized Basic
Junior High School from the State of U.P
under U.P. Basic Education Act, 1972.

4. As per the case of the petitioners,
on 12.02.1989 three vacancies for the post
of Peon was advertised in the Local
Newspaper (Dainik Varta) of District
Fatehpur by the Principal/ Manager of the
Institution.
In
pursuance
of
said
advertisement, petitioners were appointed
by order dated 01.07.1989 issued by the
Manager of the Institution, as contained in
annexure no.3 to the writ petition.

5. Learned counsel for the petitioner
submits that since the date of their joining,
the petitioners were performing their duties
regularly on the post of Peon. When the
Institution has been brought under grant-inaid list on 01.12.2006, the petitioners were
under the impression that their names were
sent by the Manager of the Institution to the
respondent no.4. It came to the knowledge