# Ram Pratap Singh v. State of U.P

- **Citation:** (2021) 7 ILRA 420
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-19
- **Case number:** Service Bench No. 327 of 2000
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-singh-v-state-of-u-p-47186
- **Pages:** 6

## Headnote

A. Service Law - Statute of UP Krishi Evam
Prodyogik Vishwavidyala Adhiniyam, 1958 - Ch.
XII - Designation of Assistant Professor
granted w.e.f 13.03.1992 - Subsequently
modified to the extent that the benefit
shall be provided from the date of
issuance
of
Government
Order
i.e.
22.07.1999
-
Validity
-
Held,
the
impugned order has been passed without
taking into consideration the provisions
contained under Chapter XII of the
Statute; It does not record reasons that
why the petitioners shall be paid salary
with effect from the date of issuance of
government order - Further held, the
impugned
order
being
illegal
and
unreasoned cannot be sustained. (Para
14, 29 and 33)
B. Statute and Government Order -
Overriding effect - Government order
cannot override the provisions contained
under the statute. ((Para 27)
C.
Precedent
-
Parity
of
wrong
-
Permissibility - Held, parity of wrongs
cannot be granted to similarly situated
persons - Respondents are taking parity
of wrongs, which is not permissible in the
eyes of law. (Para 30)
Writ Petition allowed .(E-1)

## Text

420 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)07ILR A420
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Bench No. 327 of 2000

Ram Pratap Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
D.P. Singh, Sameer Kalia, Srideep Chatterjee

Counsel for the Respondent:
C.S.C., Brijesh Kr. Shukla, Hari Prakash Gupta,
N.K. Seth, S. Seth, Satyanshu Ojha

A. Service Law - Statute of UP Krishi Evam
Prodyogik Vishwavidyala Adhiniyam, 1958 - Ch.
XII - Designation of Assistant Professor
granted w.e.f 13.03.1992 - Subsequently
modified to the extent that the benefit
shall be provided from the date of
issuance
of
Government
Order
i.e.
22.07.1999
-
Validity
-
Held,
the
impugned order has been passed without
taking into consideration the provisions
contained under Chapter XII of the
Statute; It does not record reasons that
why the petitioners shall be paid salary
with effect from the date of issuance of
government order - Further held, the
impugned
order
being
illegal
and
unreasoned cannot be sustained. (Para
14, 29 and 33)
B. Statute and Government Order -
Overriding effect - Government order
cannot override the provisions contained
under the statute. ((Para 27)
C.
Precedent
-
Parity
of
wrong
-
Permissibility - Held, parity of wrongs
cannot be granted to similarly situated
persons - Respondents are taking parity
of wrongs, which is not permissible in the
eyes of law. (Para 30)
Writ Petition allowed .(E-1)
(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri S.K. Kalia, learned
Senior Advocate assisted by Sri Srideep
Chatterjee,
learned
counsel
for
the
petitioners, Sri Alok Sharma, learned
Additional Chief Standing Counsel for
respondent-State and Sri Satyanshu Ojha,
learned counsel for respondent Nos.3 and
4.

2. By means of the present writ
petition, the petitioners are challenging the
order dated 18.2.2000 with a prayer to issue
writ in the nature of Mandamus directing
the opposite parties not to give effect
impugned order dated 18.2.2000.

3. Brief facts of the case are that the
petitioners were granted appointment on
the post of Senior Research Associates in
the
scale
of
Rs.570-1100
between
February, 1986-1988. Later on, they were
granted pay scale of Rs.700-1600 of
Assistant
Professor
/
Teacher
w.e.f.
06.06.1981, which was revised in the pay
scale of Rs.2200-4000 and subsequently, it
has been revised in the pay scale of
Rs.8000-13500/- in pursuance to 5th Pay
Commission.

4. Vide resolution dated 15.10.1990,
the Board of Management of the University
resolved
that
all
the
employees
of
University should be given U.G.C. scale, as
has been given by G.B. Pant University of
Agriculture & Technology, Pantnagar,
District Udhamsinghnagar (Nainital) and
communicated a letter dated 23.10.1990 in
this regard to the State Government.

5. The University again sent a
reminder to the State Government on
7 All. Ram Pratap Singh Vs. State of U.P.
421
19.11.1990 for grant of U.G.C. Scale to the
Senior Research Assistants and in the
meeting dated 27.12.1990, the Board of
Managment of the University has resolved
that in case the State Govenrment did not
take decision for grant of U.G.C. scale to
the Senior Research Assistants, the Board
itself shall take a decision in the next
meeting.

6. Accordingly, when no action has
been taken by the State Government, the
Board of Management in its meeting dated
26.03.1991 considered the matter and
accepted with immediate effect for grant of
U.G.C. pay scale of Rs.2200-4000 to the
Senior Research Associates.

7. In pursuance thereof, vide order
dated 29.04.1991, the State Government
sought clarification that whether the Senior
Research Assistants perform the work of
teachers and with regard to upcoming
financial burden on the State Government,
reply of which was given by Vice
Chancellor of the University vide letter
dated 08.05.1991 with the statement that
Senior Research Associates are discharging
duties of teachers and demanded for
changing of nominclature of the petitioenrs
as "Teacher" and for grant of U.G.C. pay
scale to them after declaring as Teacher.

8. The State Govenrment sent another
letter dated 18.06.1991 directing the
University that in case the Senior Research
Assistants fulfill the eligibility criteria of
teachers, they will be declared Teacher
under the relevant Act.

9. Vide letter dated 15.10.1991, the
Vice Chancellor of the University had
informed the State Government that in
view of provisions contained under Section
2(k) of the Act, all the Senior Research
Associates fulfill the conditions of being a
Teacher.

10. In pursuance thereof, the State
Government sent a letter dated 29.11.1991
by
declaring
the
Senior
Research
Associates as "Teachers" under Chapter
XII of the Statute, if they fulfill necessary
conditions and in pursuance thereof, the
Board of Management also requested to the
State Government for grant of U.G.C. pay
scale to the petitioners vide resolution
dated 13.03.1992, reminder to which has
been sent vide letter dated 16.11.1992,
however, in place of granting pay scale of
U.G.C.
to
the
petitioner,
the
State
Government issued a government order on
14.10.1993 to the Unierisity informing that
name and designation of Senior Research
Associates is being converted to the post of
"Project Assistant" and they were given pay
scale of Rs.1740-3000/-.

11. Feeling aggrieved, the petitinoers
filed Writ Petition No.1082 (S/B) of 1995
before this Court, wherein, when no
counter
affidavit
was
filed
by
the
respondent, this Court granted interim
order vide order dated 07.05.1999, as
under:

" ......... We have no option but to
pass order to the effect that the respondents
shall either pay the same scale of teachers /
Assistant Professors to the petitioners or
respondents will show cause as to why the
same cannot be given to the petitioners."

12. In pursuance thereof, the State
Government vide government order dated
22.07.1991, granted the pay scale of
"Teachers"
to
the
petitioners
w.e.f.
13.03.1992.
422 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The Vice Chancellor of the
University vide order dated 27.10.1999
recommended for pay scale of Assistant
Professor
to
the
petitioners
and
in
pursuance thereof, the petitioners were
adjusted in the cadre of Assistant Professor
in Research and Extension Department vide
order dated 14.12.1999 and were getting
salary, accordingly.

14. By means of impugned order
dated 18.02.2000, the benefits provided to
petitioners of designation of Assistant
Professor with effect from 13.03.1992 was
modified to the extent that the benefit shall
be provided from the date of issuance of
Government Order i.e. 22.07.1999 and their
designation shall be "Senior Research
Assistant" on the place of Teacher /
Assistant Professor. Being aggrieved, the
present writ petition has been filed before
this Court.

15. Assailing the impugned order,
submission of Sri S.K. Kalia, learned
Senior Advocate for the petitioners is that
the
designation
of
Teacher/Assistant
Professor was granted by following the
procedure prescribed under Chapter XII of
the Statute framed under the Universities
Act. Recommendation to the same was
made by the Academic Council which was
considered by the Board of Management as
per the provisions of Chapter XII and
thereafter, the petitioners were paid salary,
thus, by means of a government order, the
status given to petitioners cannot be taken
away. Therefore, his submission is that the
order
impugned
is
wholly
without
jurisdiction.

16. He next submitted that the order
impugned does not contain reasons in
modifying
the
benefits
granted
vide
Government Order dated 22.07.1999. The
designation
of
a
Teacher/Assistant
Professor cannot be taken away by issuing
a government order, once it has been
provided by following the procedure
prescribed under the Statute.

17. He further submitted that claim of
parity of Research Assistant cannot be
made a ground for taking right provided to
petitioners as Teacher/Assistant Professor.
He submitted that parity cannot be taken of
wrongs. In this view of the matter, his
submission is that the impugned order is
per se illegal and is liable to be set aside.

18. His last submission is that under
the Universities Act, statutes are framed
which have statutory binding effect. In case
the University decided to take any decision
otherwise, the procedure prescribed under
the Statute would have been followed.

19. On the other hand, Sri Alok
Sharma, learned Additional Chief Standing
Counsel submitted that the order impugned
does not suffer from any infirmity or
illegality. The Hon'ble Governor has
exercised his power in consonance with the
provisions provided under the Statute,
therefore the same is not liable to be
interfered by this Court.

20. He next submitted that once the
benefits have been provided to the
Research Assistants from the date of
issuance
of
government
order,
the
petitioners would have also been granted
benefit from the date of issuance of
Government Order.

21. Sri Satyanshu Ojha, learned
counsel
for
the
respondent-University
submitted that the decision of Board of
Management dated 23.03.1992 was not
approved in the subsequent meeting of the
7 All. Ram Pratap Singh Vs. State of U.P.
423
Board of Management. He next submits
that
although
the
University
has
considered claim of the petitioners fro
grant of designation of Teacher/Assistant
Professor but under Chapter XII of the
Statutes,
the
procedure
has
been
prescribed to make selection on the post
of
Professor,
Reader
and
Lecture,
therefore,
the
designation
of
Teacher/Assistant
Professor
to
the
petitioners cannot be held to be illegal.

22. He next submitted that the post on
which the petitioners have been redelegated
to hold is not available in the University
and that has been declared to be dying
cadre.

23. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

24. In regard to first submission
advanced by learned Senior Counsel for the
petitioners that the designation of teachers
was granted to the petitioners in accordance
with
the
precedure
prescribed
under
Chapter XII of the Statute framed under
Universities
Act
and
recommendation
made by the academic council and
consideration of Board of Management.
For
ready
reference,
the
provisions
contained under Chapter XII of the Statute
framed under First Statutes of The
Narendra Deva Krishi Evam Prodyogik
Vishwavidyalaya,
Faizabad
is
being
quoted below:

"CHAPTER - XII

CLASSIFICATION OF THE
TEACHERS OF THE UNIVERSITY

"Section 28(d):

1. The Board of Management
shall, from time to time, determine after
considering the recommendation of the
Academic Council in this behalf, the
classification of the teaching staff of the
University and appropriate designations,
i.e.
Professors,
Associate
Professors/
Readers, Assistant Professor / Lecturers
and the like. The Board shall also have
power to later or modify such classification
in any particular case.

2. The teachers of the University
shall be employed on a whole-time basis on
the scales of pay approved for the
University provided that the proportion of
time of the teachers to be devoted to
teaching,
research
and
extension
or
administrative duties should be specified in
their contract of employment."

25. On its perusal, it is evident that
the Board of Management shall consider
the
recommendations
made
by
the
Academic
Council
in
regard
to
classification
of
designations
like
Professors, Associate Professors/ Readers,
Assistant Professors / Lecturers and shall
have the power to alter or modify such
classification in any particular case.

26. On perusal, it is further transpired
that the teachers of the University shall be
employed on a whole time basis on the pay
scale approved for University provided that
the proportion of time of teachers to be
devoted to teaching, research and extension
or administrative duties and that should be
specified in their contract of employment.

27. In accordance with the provisions
contained under aforesaid statute, the
Academic Council of the University
considered the claim of the petitioners and
424 INDIAN LAW REPORTS ALLAHABAD SERIES
the same was placed in the meeting of
Board of Management and thereafter, the
petitioners were paid salary, therefore, by
means of a government order, the right
given to the petitioners, as per statute 12
cannot be taken away. The government
order cannot override the provisions
contained under the statute. Thus, the
submissions advanced by learned Senior
Counsel for the petitioners has substance in
the matter.

28. In regard to his second submission
that impugned order does not record
reasons, I have perused the impugned
order.

29. On its perusal, it is reflected that
without taking into consideration the
provisions contained under Chapter XII
of the Statute, the impugned order has
been passed. The impugned order does
not
record
reasons
that
why
the
petitioners shall be paid salary with effect
from the date of issuance of government
order. It also does not contain reasons
that once by following the procedure
prescribed under the statute and as per
govnerment order dated 22.07.1999 the
designation
of
Teacher
/
Assistant
Professor was granted to the petititoners,
how without assigning cogent reasons the
same can be withdrawn by issuing
subsequent government order.

30.

In
regard
to
submission
advanced that parity cannot be taken of
wrongs, the Court is of the opinion that
the law in this regard is very much settled
that parity of wrongs cannot be granted to
similarly situated persons, therefore, in
the present case the respondents are
taking parity of wrongs, which is not
permissible in the eyes of law.

31. The University was established
under
the
act
and
statute
framed
thereunder in pusuance to government
order dated 22.07.1999. The procedure
prescribed under Chapter XII of the
statute framed under the University Act,
the academic council after consideration
of
claim
of
the
petitioners
made
recommnedation
to
the
Board
of
Management and the same was accepted
and salary was paid to the petitioners,
therefore, the entire proceeding initiated
subsequent thereto cannot be held to be
justified.

32. The submisison advanced by
learned counsel for the respondents to the
effect that the decision of Board of
Management dated 23.03.1992 was not
approved in the subsequent meeting of
Board of Management cannot be a ground
for denial of benefits provided to the
petitioners.

33. On over all consideration of
submissions advanced by learned counsel
for the parties and material available on
record, the impugned order passed by the
respondent dated 18.02.2000 being illegal
and unreasoned cannot be sustained and
is hereby set aside.

34. The writ petition succeeds and is
allowed.

35. The respondents are directed to
treat the petitioners to be Teacher /
Assistant Professor, respectively, and to
pay
all
consequential
benefits
as
admissible to their post within a period of
three months from the date of production
of a certified copy of this order.

36. No order as to costs.
----------
7 All. The State of U.P. Vs. Sri Gokaran P Tiwari
425
(2021)07ILR A425
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE DINESH KUMAR SINGH, J.

Special Appeal No. 423 of 2005
And
Special Appeal No. 408 of 2005
And
Special Appeal No. 52 of 2008

The State Of U.P. ...Petitioner
Versus
Sri Gokaran P Tiwari ...Respondent

Counsel for the Petitioner:
C.S.C., Bilendra Singh

Counsel for the Respondent:
Y.K. Misra

A. UP Intermediate Education Act, 1921 -
Section 9 - Ch. II Reg. 19, Ch. III, Reg.
101 - Post of Laboratory Assistant and
Clerk - Claim of appointment, though
there is no sanctioned post - No prior
approval of DIOS - Validity - Held, the
respondents-petitioners had no legal right
for appointment or consideration for
appointment
on
nonexistent
posts
-
Learned Single Judge has grossly erred in
issuing a writ of Mandamus, directing the
authorities to create posts, on which the
respondent-petitioners were appointed.
(Para 8 and 11)
B. Constitution of India,1950 - Article 226
- Writ - Mandamus - Scope and ambit - A
writ
of
Mandamus
lies
to
secure
performance of public duty imposed by
law. If there is no statutory duty of the
authority, writ of Mandamus cannot be
issued - The writ of Mandamus is issued
to command; and not to inquire and
adjudicate - In a petition for writ of
Mandamus, the petitioner does not
have to establish a legal right but it is for
enforcement of the existing legal right - It
is issued only where public duty is clear,
unqualified and specific. [Para 10 (vii)]
Special Appeal allowed. (E-1)
Cases relied on :-
1. St. of Bihar & ors. Vs Devendra Sharma;
(2020) 15 SCC 466
2. St. of Karn. Vs Umadevi (3); (2006) 4 SCC
page-1
3. Rita Mishra & ors. Vs Director, Primary
Education, Bihar & ors.; 1987 SCC Online Pat
159
4. R. Vishwanatha Pillai Vs St. of Kerala & ors;
(2004) 2 SCC 105
5. Ashwani Kumar Vs St. of Bihar; (1997) 2 SCC
1
6. Director of Education & ors.. Vs Gajadhar
Prasad Verma (1995) 1 SCC 465

(Delivered by Hon'ble Ritu Raj Awasthi, J.
&
Hon'ble Dinesh Kumar Singh, J.)

1. The cases are taken up through
Video Conferencing.

2. Since the common questions of law
and facts are involved in these three special
appeals, they are being heard and decided
by a common judgment.

3. Learned Single Judge has allowed
the writ petitions filed by the respondentspetitioners and has directed for payment of
salary as well as creation of posts, on which
they were appointed, de hors the statutory
Rules.

4. Facts:-