# Ram Rama Pal v. D.I.O.S., Allahabad and others

- **Citation:** (2007) 2 ILRA 451
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-17
- **Case number:** Civil Misc. Writ Petition No. 24458 of 1989
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-rama-pal-v-d-i-o-s-allahabad-and-others-40901
- **Pages:** 4

## Headnote

452 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
U.P.
High
School
and
Intermediate
College
(Payment
of
Salaries
and
Teachers & other Employees) AC 1971Section-3-Payment of Salary-petitioner
appointed by Principal as class 4th
employee-appointment on substantive
vacancy-payment of salary denied by
D.I.O.S.-On grounds firstly no approval
secondly the said post ought to have
fulfilled by compassionate appointmentheld-for class 4th employee the Head of
Institution is the appointing authorityapproval of D.I.O.S. not required under
law-when employee died in the 1989, No
existences
of
Regulation
101-107
inserted vide notification dated 2.2.95entitiled for salary from the date of
appointment
with
all
consequential
benefits.

Held: Para 8

Thus at the time when the petitioner was
appointed in the year 1989 there was no
Regulation
such
as
Regulation
101
providing for obtaining prior approval of
the DIOS to the appointments of class IV
employees at the institution. This aspect
of the matter was considered by the
Division Bench of this Court in case of
Om Prakash Vs. DIOS, Budaun [1982
UPLBEC 232] and it was clearly held that
the appointment of class IV employees
i.e. of Chaukidar made by the Principal of
the institution requires no approval of
the DIOS as there is no provisions to this
effect and, therefore, such appointees
are entitled for salary. The aforesaid
decision has duly been followed by the
another decision of this Court in case of
Mool Chandra Maurya vs DIOS, Jaunpur
[1991 (1) UPLBEC 50]. Therefore, no
approval by the DIOS was necessary to
the petitioner's appointment.
Case law discussed:
1982 UPLBEC-232
1991 (1) UPLBEC-50

## Text

2 All] Ram Rama Pal V. D.I.O.S., Allahabad and others
451
18. In the aforesaid factual matrix,
as the finding of fact has been recorded by
the learned Single Judge that the appellant
had not worked and the said finding
seems to be correct otherwise there was
no occasion for the Manager of the
institution to ask Mr. Sri Krishna Dixit on
26.05.2005 to hand over the charge to the
appellant and there was no need to pass an
order by the Additional Director of
Education on 20.06.2003 for ensuring that
the appellant does not get the salary. The
salary has been paid to him definitely in
violation thereof.

19. Recovery of the salary received
by the appellant at such a belated stage is
admittedly very harsh and the Court must
be alive of the existing circumstances that
such a refund may cause great hardship to
him but in view of the fact that we have
already reached the conclusion that he
was not even eligible to make an
application for want of experience and
there was no occasion for making the
appointment
of
Head
Master
after
upgradation of the Junior High School to
High
School
and
subsequently
Intermediate, the entire proceedings had
been nothing but fraud upon the Statute.
In such circumstances, recovery of the
salary paid to him cannot be held to be
unjustified.

20. In sum and substance, we are of
the view that after upgradation of an
institution from Junior High School to
High School and then to Intermediate, the
lower section of the institution, i.e. Junior
High School looses its existence and
merges into the higher section and in that
eventuality, the question of making the
appointment of Head Master for the
Junior High School, a Principal for the
High School and another Principal to run
the Intermediate classes would lead to
complete chaotic situation and absurdity.
Thus, the appointment on the post of
Head Master could not be made. The
appellant did not possess the eligibility,
i.e. experience as required under the law
in making an application to the said post
and had illegally been appointed. Further,
the
serious
illegality/irregularity
in
advertising the vacancy existed and the
possibility of committing fraud cannot be
ruled out. As the appointment of the
appellant had been made in total violation
of law and without possessing the
eligibility, the recovery of salary received
by him in contravention of the order
passed by the Statutory Authority does
not warrant any interference.

21. In view of the above, the appeal
is
misconceived
and
accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2006

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 24458 of 1989

Ram Rama Pal

...Petitioner
Versus
District Inspector of Schools, Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Srivastava
Sri M.B. Saxena
Dr. Y.K. Srivastava

Counsel for the Respondents:
Sri Tribeni Prasad
S.C.
452 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
U.P.
High
School
and
Intermediate
College
(Payment
of
Salaries
and
Teachers & other Employees) AC 1971Section-3-Payment of Salary-petitioner
appointed by Principal as class 4th
employee-appointment on substantive
vacancy-payment of salary denied by
D.I.O.S.-On grounds firstly no approval
secondly the said post ought to have
fulfilled by compassionate appointmentheld-for class 4th employee the Head of
Institution is the appointing authorityapproval of D.I.O.S. not required under
law-when employee died in the 1989, No
existences
of
Regulation
101-107
inserted vide notification dated 2.2.95entitiled for salary from the date of
appointment
with
all
consequential
benefits.

Held: Para 8

Thus at the time when the petitioner was
appointed in the year 1989 there was no
Regulation
such
as
Regulation
101
providing for obtaining prior approval of
the DIOS to the appointments of class IV
employees at the institution. This aspect
of the matter was considered by the
Division Bench of this Court in case of
Om Prakash Vs. DIOS, Budaun [1982
UPLBEC 232] and it was clearly held that
the appointment of class IV employees
i.e. of Chaukidar made by the Principal of
the institution requires no approval of
the DIOS as there is no provisions to this
effect and, therefore, such appointees
are entitled for salary. The aforesaid
decision has duly been followed by the
another decision of this Court in case of
Mool Chandra Maurya vs DIOS, Jaunpur
[1991 (1) UPLBEC 50]. Therefore, no
approval by the DIOS was necessary to
the petitioner's appointment.
Case law discussed:
1982 UPLBEC-232
1991 (1) UPLBEC-50

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri M.B. Saxena, learned
counsel for the petitioner and learned
Standing Counsel for the respondent
No.2.

2. The petitioner was appointed as
peon in Ishwar Sharan Intermediate
College, Allahabad. The appointment
letter was issued by the Principal
(respondent
No.2)
on
17.5.1989
(Annexure 1 to the writ petition). The
petitioner joined his duties in pursuance
of
the
said
appointment
letter
on
18.5.1989. The said appointment of the
petitioner is said to be against a clear
substantive vacancy. The DIOS vide letter
dated 4.7.1989 raised certain objections
against the aforesaid appointment of the
petitioner. The objections so raised by the
DIOS were duly replied by the Principal
and proper clarification was given.
However, the DIOS insisted that the post
be offered to one Shiv Lochan the
dependent of an employee of K.P. Inter
College
who
had
died-in-harness.
Accordingly, the salary bills of the
petitioner submitted by the college along
with the other staff members were not
cleared and no payment of salary was
made to the petitioner.

3. In the above background the
petitioner filed the present writ petition
commanding the DIOS to pay salary to
the petitioner from the date of his
appointment i.e. 17.5.1989. The Hon'ble
Court vide interim order dated 20.3.1991
directed the DIOS to pay the salary to the
petitioner in accordance with law subject
to the final decision of the writ petition.
Accordingly
the
petitioner
started
receiving salary.

4. The petitioner in the writ petition
has also contended that the objection on
which his salary was withheld by the
DIOS was not tenable and had ceased to
2 All] Ram Rama Pal V. D.I.O.S., Allahabad and others
453
exist when the petitioner was appointed.
The dependent of Khandan Lal who diedin-harness while in service in K.P.
Intermediate College i.e. Shive Lochan
had already been appointed in K.P.
Intermediate College itself on 12.2.1987
and his appointment had also been
approved by the DIOS vide letter dated
7.2.1987. He had even joined his duties.
The petitioner further contents that the
time of his appointment the provisions of
Regulation 101-107 of the Regulations
were not in existence. It has also been
contended there was no provision under
the U.P. Intermediate Education Act or
the regulations framed therein for seeking
any formal approval of the DIOS to the
appointment of class IV employees at the
relevant time.

5. Learned Standing counsel has
placed reliance upon Paragraphs 3, 6 and
9 of the counter affidavit filed on behalf
of the DIOS by Sri H. S. Dubey, Assistant
Supervisor in the office of DIOS,
Allahabad. It has been stated therein that
the petitioner was appointed by the
resolution
of
the
Committee
of
Management dated 12.5.1989 and since
the appointing authority of the class IV
employee is the principal of the college,
the resolution of the Committee of
Management is without jurisdiction and,
therefore, the petitioner cannot be said to
have been validly appointed. No other
defence has been taken in the counter
affidavit.

6. It is admitted on record that the
appointment of the petitioner dated
17.5.1989 has been made by the principal
of the college and not by the committee of
Management. This appointment has not
been disapproved by any specific order of
the DIOS. The petitioner has been
appointed by the Principal and, therefore,
even if the Committee of Management
has passed a resolution in support thereof
it would not affect the appointment of the
petitioner. Therefore, the defence taken
by the DIOS in the counter affidavit has
no substance and is not acceptable.

7. The only objection taken to the
petitioner's appointment was in relation to
the appointment of Sri Shiv Lochan on
compassionate ground. The said Shiv
Lochan had already been appointed in the
K.P. Intermediate College itself where his
father was an employee. This fact has not
been disputed in the counter affidavit.
Therefore, the said ground of objection
had ceased to exist and as such the DIOS
was not justified in withholding the salary
of the petitioner on this ground.

8. It is not the case of the
respondents that the appointment of the
petitioner was not against any substantive
sanctioned post or was in excess of the
sanctioned posts. It is also not their case
that the procedure prescribed for the
appointment was not followed. Now the
only question which remains to be seen is
as to whether any formal approval from
the DIOS to the appointment of the
petitioner, who was appointed as a class
IV employee was necessary under the
relevant provisions. Learned Standing
counsel
has
placed
reliance
upon
Regulation 101 under Chapter III of the
Regulations
framed
under
the
Act.
Regulations 101 to 107 which were
inserted w.e.f 28.8.1992 vide Government
notification No.400/15-7-2(1)/90 dated
30.7.1992 and Regulations 101 and 103 to
107
have
been
substituted
vide
notification No.300/15-7-2(1)/90 dated
2.2.1995. Thus at the time when the
petitioner was appointed in the year 1989
454 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
there
was
no
Regulation
such
as
Regulation 101 providing for obtaining
prior approval of the DIOS to the
appointments of class IV employees at the
institution. This aspect of the matter was
considered by the Division Bench of this
Court in case of Om Prakash Vs. DIOS,
Budaun [1982 UPLBEC 232] and it was
clearly held that the appointment of class
IV employees i.e. of Chaukidar made by
the Principal of the institution requires no
approval of the DIOS as there is no
provisions to this effect and, therefore,
such appointees are entitled for salary.
The aforesaid decision has duly been
followed by the another decision of this
Court in case of Mool Chandra Maurya
vs DIOS, Jaunpur [1991 (1) UPLBEC
50]. Therefore, no approval by the DIOS
was
necessary
to
the
petitioner's
appointment.

9. Apart from the above the U.P.
High Schools and Intermediate Colleges
(Payment of Salaries of Teachers and
other employees) Act 1971, which has
been enforced w.e.f 1st August 1971 vide
Section 3 of the said Act provides that the
salary of a teacher or other employee of
an institution after 31st day of March
1971 shall be paid to him on monthly
basis by the office of DIOS on submission
of bills by the management of recognized
institution. In view of the above it is a
primary responsibility of the DIOS to pay
salary
to
the
petitioner
when
his
appointment is not in any way unlawful.

10. In view of the above, the writ
petition is allowed and the District
Inspector
of
School,
Allahabad
(respondent No.1) is directed to make
payment of salary to the petitioner w.e.f
the date of his appointment which
happens
to
be
17.5.1989 with
all
consequential
benefits.
The
salary
received by the petitioner in pursuance of
the interim order of the High Court shall
duly adjusted.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2007

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Second Appeal No. 108 of 2007

Sri Atul Kumar Jain ...Plaintiff-Appellant
Versus
Cantonment Board, Meerut Cantt.

 ...Defendant/Opp.Party

Counsel for the Appellant:
Sri Siddhartha

Counsel for the Opposite Party:

(A) Cantonments Act 1924-Section 185Notice-before
demolition
of
unauthorized construction-Notice served
upon the wife and not upon appellantheld-sufficient-construction erected by
plaintiff and his wife-No legal obligation
of separate service.

Held: Para 5

In
the
allegedly
unauthorised
constructions erected by the plaintiff his
wife is also one of the occupiers and if
the notice has been served upon her that
notice can rightly be treated as sufficient
service and no legal objection in respect
thereto is entertainable at all. Therefore,
the findings recorded by the court below
with regard to the service of the notice
as sufficient, are wholly justified and do
not require any interference in this
second appeal.

(B) Specific Relief Act-Section 41 (h)-
maintainability of suit for injunctionorder of demolition passed by the Board-