# Rama Shanker Prasad v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-03
- **Case number:** WRIT - A No. 6792 of 2020
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shanker-prasad-v-state-of-u-p-ors-45351
- **Pages:** 7

## Headnote

A. Service Law -U.P. Secondary Education
Services Selection Board Rules, 1998 -
Rule 10, 14 - Uttar Pradesh Secondary
Education (Services Selection Boards) Act,
1982
-
Section
2
-
Process
of
selection/Promotion
-
Violation
of
principles of natural justice and not
providing complete opportunity of hearing
is not germane in cases where there is
clear
infraction
of
the
statutory
provisions. (Para 22)

Where a benefit is obtained by committing
fraud, the Authorities are not obliged to comply
with the principles of natural justice before
cancelling the advantage obtained by such
fraud. (Para 23, 24)

In the present case, it is apparent that the
benefit
of
promotion
was
obtained
by
committing
fraud
in
collusion
with
the
Management Committee and in violation of the
statutory rules and regulations. The act of the
Management
Committee
in
favouring
the
petitioner
is
fraught
with
illegalities
and
irregularities, therefore, cancellation of such
promotion order cannot be faulted on the
ground of violations of principles of natural
justice saying that petitioner was not given full
opportunity of hearing before passing of the
impugned order. (Para 25)

B. Definition of 'year of recruitment' read
with the provisions contained in Rule
14(1) - S. 2(1) of the Act of 1982, defines 'year
of recruitment', as a period of 12 months
commencing from first day of July of a Calendar
year, therefore as per facts, both the posts, that
of Lecturer in Physics and Lecturer in Sanskrit
which respectively fell vacant on 31.8.2019 and
20.9.2019 actually became available in the same
'year of recruitment'. Therefore, the argument
that since post of Lecturer, Physics had fallen
vacant at an earlier point of time has no
meaning in terms of the definition of 'year of
recruitment', which is when read with the
provisions contained in Rule 14(1), makes it
apparent that any vacancy which has occurred
during the same recruitment year, is to be
considered together for being filled up by
promotion and for that purpose all teachers,
working in trained graduates Grade or certificate
of teaching Grade possessing the prescribed
qualification for the post and having completed
five years continuous service as such on the first
day of the year of recruitment, are to be
considered. (Para 15)

From the perusal of the impugned order dated
23.07.2020, Court observed that Sri Mahtab
Ahmad is senior to the petitioner and, therefore
his name should have been recommended for
promotion to the post of Lecturer, Sanskrit to fill
the vacancy of a Lecturer under 50% quota
prescribed for promotion. (Para 18, 20)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

10 All. Rama Shanker Prasad Vs. State of U.P. & Ors.
409
comes to the Court to obtain relief on an ex parte
statement he should make a full and fair disclosure
of all the material facts - facts, not law. He must
not misstate the law if he can help it - the Court is
supposed to know the law. But it knows nothing
about the facts, and the applicant must state fully
and fairly the facts, and the penalty by which the
Court enforces that obligation is that if it finds out
that the facts have not been fully and fairly stated
to it, the Court will set aside any action which it
has taken on the faith of the imperfect statement."

51. In India in case of All India State Bank
Officers Federation vs. Union of India, 1990
Supp. SCC 336, it has been held that the party
who invokes the extraordinary jurisdiction of the
Supreme Court under Article 32 or of a High
Court under Article 226 of the Constitution, is
suppose to be truthful, frank and open. He must
disclose all material facts without any reservation
even if they are against him. He cannot pick and
choose the facts he likes to disclose and to
suppress (keep back) or not to disclose (conceal)
other facts. The very basis of the writ jurisdiction
rests in disclosure of true and complete (correct
facts). It is also held that if material facts are
suppressed or distorted, the very functioning of the
writ courts and exercise would become
impossible.

52. In case of Hindustan Transport
Corporation vs. State of Uttar Pradesh as
reported in AIR 1984 SC 953, it has been held that
non-disclosure and suppression will not only
invite rejection of the petition, but over and above,
dismissing the petition, the Court may direct the
petitioner to pay heavy costs also.

53. In view of the aforesaid discussion,
present writ petition needs to be dismissed with
cost of Rs. 10,000/- against each of the above
named five petitioners whose roll numbers and
registration numbers are mentioned in para-10 of
the writ petition which are as under:-

Petitioners
Name
Roll No.
Registration No.
1.
Alok
Kumar
Singh
516103
10600934061
2. Shashank
Shekhar
Singh
512868
10601817318
3.Upendra
Kumar
Singh
298786
10601824071
4
Anuj
Dwivedi
303262
10603846527
5.
Nirmal
Kumar
Jaiswal
428234
10603062851

54. The above named petitioners are
directed to deposit the cost within 30 days before
the High Court Legal Services Authority, failing
which Registrar General shall direct the Collector
of the concerned district where the concerned
petitioners are residing to recover the cost as
arrears of land revenue from the petitioners.

In view of the above, the writ petition is
dismissed.
----------

(2020)10ILR A409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2020

BEFORE
THE HON'BLE VIVEK AGARWAL, J.

WRIT - A No. 6792 of 2020

Rama Shanker Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
410 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Shantanu Khare, Sri Ashok Khare, Sri
Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Sandeep Kumar Agrahari, Sri
Vinod Kumar Upadhyay, Sri Radha Kant
Ojha, Sri Harish Chandra Dubey

A. Service Law -U.P. Secondary Education
Services Selection Board Rules, 1998 -
Rule 10, 14 - Uttar Pradesh Secondary
Education (Services Selection Boards) Act,
1982
-
Section
2
-
Process
of
selection/Promotion
-
Violation
of
principles of natural justice and not
providing complete opportunity of hearing
is not germane in cases where there is
clear
infraction
of
the
statutory
provisions. (Para 22)

Where a benefit is obtained by committing
fraud, the Authorities are not obliged to comply
with the principles of natural justice before
cancelling the advantage obtained by such
fraud. (Para 23, 24)

In the present case, it is apparent that the
benefit
of
promotion
was
obtained
by
committing
fraud
in
collusion
with
the
Management Committee and in violation of the
statutory rules and regulations. The act of the
Management
Committee
in
favouring
the
petitioner
is
fraught
with
illegalities
and
irregularities, therefore, cancellation of such
promotion order cannot be faulted on the
ground of violations of principles of natural
justice saying that petitioner was not given full
opportunity of hearing before passing of the
impugned order. (Para 25)

B. Definition of 'year of recruitment' read
with the provisions contained in Rule
14(1) - S. 2(1) of the Act of 1982, defines 'year
of recruitment', as a period of 12 months
commencing from first day of July of a Calendar
year, therefore as per facts, both the posts, that
of Lecturer in Physics and Lecturer in Sanskrit
which respectively fell vacant on 31.8.2019 and
20.9.2019 actually became available in the same
'year of recruitment'. Therefore, the argument
that since post of Lecturer, Physics had fallen
vacant at an earlier point of time has no
meaning in terms of the definition of 'year of
recruitment', which is when read with the
provisions contained in Rule 14(1), makes it
apparent that any vacancy which has occurred
during the same recruitment year, is to be
considered together for being filled up by
promotion and for that purpose all teachers,
working in trained graduates Grade or certificate
of teaching Grade possessing the prescribed
qualification for the post and having completed
five years continuous service as such on the first
day of the year of recruitment, are to be
considered. (Para 15)

From the perusal of the impugned order dated
23.07.2020, Court observed that Sri Mahtab
Ahmad is senior to the petitioner and, therefore
his name should have been recommended for
promotion to the post of Lecturer, Sanskrit to fill
the vacancy of a Lecturer under 50% quota
prescribed for promotion. (Para 18, 20)

Writ petition dismissed. (E-4)

Precedent followed:

1. U.P. Junior Doctors' Action Committee Vs B.
Sheetal Nandwani (Dr.), AIR 1991 SC 909 (Para 23)

2. U.O.I. Vs. O. Chakradhar, (2002) 3 SCC 146
(Para 24)

Precedent distinguished:

1. Pati Ram Pal Vs District Inspector of Schools
& ors., 1993 (1) UPLBEC 319 (Para 9, 21)

2. B.P. Tripathi Vs St. of U.P. & ors., 1985
UPLBEC 669 (Para 10, 21)

Present petition challenges order dated
23.07.2020, by which the petitioner's
promotion has been set aside.

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

1. Heard Sri Ashok Khare, learned Senior
Advocate assisted by Sri Siddharth Khare for
the petitioner and Sri Radha Kant Ojha, learned
Senior Advocate assisted by Sri Harish
Chandra Dubey for the respondent no.5.
10 All. Rama Shanker Prasad Vs. State of U.P. & Ors.
411

2. Petitioner who is a Assistant
Teacher in L.T. Grade, a post on which he
was appointed on 03.12.2010 on the
recommendations of the U.P. Secondary
Education Services Selection Board and
was recommended to be appointed in the
Balmiki Inter College, Balua, District-
Chandauli has filed this petition mentioning
therein that he possesses a Post-graduate
Degree in physics and is fully qualified for
holding the post of Lecturer in Physics.

3. It is submitted that there are 10
sanctioned post of Lecturer in the Balmiki
Inter College, Balua. In the year 2019, the
U.P. Secondary Services Selection Board
(hereinafter referred to as ''Board') notified
the select list of Principals of privately
managed aided Institutions. In the select list
published by the Board, two Lecturers of
the Balmiki Inter College, Balua namely
Virednra
Pratap
Tiwari,
Lecturer
in
Sanskrit and Ashok Kumar Singh, Lecturer
in Physics were selected for appointment as
Principal of different Institutions. It is
submitted that Sri Ashok Kumar Singh,
Lecturer in Physics joined at his place of
posting as Principal on 31.08.2019 while
Sri Virendra Pratap Tiwari joined at his
place of posting as Principal on 20.09.2019.

4. It is submitted that since vacancy in
the cadre of Lecturer in the subject of
Physics had occurred on 31.08.2019,
therefore, petitioner being the senior most
Assistant Teacher in L.T. Grade possessing
requisite qualifications for promotion to the
post of Lecturer in Physics should have
been promoted and to this effect petitioner
had moved an application before the
College-Authority, therefore when the
Committee of Management convened its
Meeting on 19.01.2020 it passed a
Resolution recommending the name of the
petitioner for promotion to the post of
Lecturer, Physics, copy of such resolution
is enclosed as Annexure-2.

5. It is petitioner's case that when the
Resolution passed by the Committee of
Management was forwarded to the District
Inspector
of
Schools
for
onward
transmission
to
Regional
Promotion
Committee, then vide communication dated
19.05.2020, District Inspector of Schools,
Chandauli raised various objections which
were duly replied by the Management vide
reply
dated
29.05.2020.
Thereafter,
according to the petitioner, Joint Direction
of Education, Varanasi Region, Varanasi,
vide order dated 05.06.2020 approved the
proposed promotion of the petitioner as a
result of which, the District Inspector of
Schools informed the Management of
Balmiki Inter College to pass orders of
promotion for the petitioner as Lecturer,
Physics and accordingly the Management
of the College had issued appointment
order dated 08.06.2020 in favour of the
petitioner and accordingly petitioner had
joined on the post of Lecturer, Physics on
08.06.2020.

6.

It
is
submitted
that
a
communication was sent by the former
M.L.C. who has been impleaded as
respondent no.6 addressed to the Joint
Director
of
Education,
5th
Mandal,
Varanasi highlighting the irregularities in
the promotion process when District
Inspector of Schools, taking cognizance of
such
communication
asked
the
Management of the Inter College to submit
its explanation along with all the relevant
documents.

7. To this D.O. letter, reply was
furnished by the College Management
pointing out that Ashok Kumar Singh was
appointed on the vacant temporary post on
412 INDIAN LAW REPORTS ALLAHABAD SERIES
11.01.1996 and he continued to work upto
31.08.2019. He was paid salary in terms of
the orders of the High Court. It is
mentioned that on 01.09.2019 when the
post of Lecturer, Physics became vacant,
then promotion of the petitioner was made
under the prescribed 50% quota for
promotion.

8. It is petitioner's contention that
thereafter, vide order dated 22.06.2020, it
was proposed to cancel the promotion of
the petitioner and thereafter vide order
dated
23.07.2020,
promotion
of
the
petitioner has been set aside.

9. Petitioner's contention is that since
the post of Lecturer, Physics had fallen
vacant on 31.08.2019 and that of the
Lecturer, Sanskrit on 20th September,
2019, therefore, in terms of the provisions
contained in Rule 14 of the U.P. Secondary
Education Services Selection Board Rules,
1998 (hereinafter referred to as ''1998'
Rule), case of the petitioner was considered
and he was promoted. It is submitted that
petitioner's case is identical to the judgment
of Division Bench of this Court in case of
Pati Ram Pal Vs. District Inspector of
Schools and others as reported in 1993 (1)
UPLBEC 319 wherein, referring to the
provisions contained in U.P. Intermediate
Education Act, 1921 and the regulations
framed
under
Chapter
2
and
more
specifically Regulation 6(1) which provides
that if the vacancy of L.T. Grade teacher is
caused by promotion and the promoted
teacher was teaching Hindi then it is not
necessary that the post be filled by
promoting only Hindi teachers.

10. Similarly, reliance has been
placed on the judgement of Division Bench
of this Court in case of B.P. Tripathi Vs.
State of U.P. and others as reported in
1985 UPLBEC 669 wherein, it has been
held,
again
in
reference
to,
U.P.
Intermediate Education Act, 1921 and
Regulation 6(1) and 6(5) that even if the
vacancy occurred due to death of teacher
teaching English and Hindi, yet for filling
the vacancy, all teachers eligible for being
promoted may be considered and it is not
necessary that teachers teaching that
particular subject only be considered.

11. In view of such facts, learned
counsel for the petitioner submits that
impugned
order
is
arbitrary
and
discriminatory and in fact, the decision has
been taken ex parte. It is also submitted that
since the vacancy of Lecturer in Physics
came into existence, first in point of time
i.e. on 31.08.2019 in contrast to the
vacancy of the Lecturer in Sanskrit which
arose on 20th September, 2019 i.e. on a
subsequent date, therefore, the post of
Lecturer falling vacant, 1st in time was
required to be filled by promotion. Thus,
the decision of the Management Committee
to fill that first post through promotion
cannot be faulted with.

12. In fact, learned counsel for the
petitioner during the course of argument
has placed weightage on this argument only
that since the vacancy of Lecturer in
Physics arose first in time, therefore, the
decision of the Management to fill it
through promotion cannot be faulted with.

13. On the other hand, learned
counsel for the respondents has drawn
attention of this Court to the definitions
mentioned in Section 2, of the Uttar
Pradesh Secondary Education (Services
Selection Boards) Act, 1982 and submits
that
as
per
Section
2(l),
''year
of
recruitment', means a period of 12 months
commencing from first day of July of a
10 All. Rama Shanker Prasad Vs. State of U.P. & Ors.
413
Calender year. He submits that it is not the
date on which a vacancy occurs which is to
be given preference but it is the year of
recruitment during which a particular
vacancy/vacancies arise which are relevant
for the purposes of the Act of 1982 and the
Rules of 1998.

14.

Learned
counsel
for
the
respondent, therefore, submits that Rule 10
of the Rules of 1998 in Clause-B provides
that vacancies of Lecturer Grade are to be
filled, 50% by direct recruitment; and 50%
by promotion from amongst substantively
appointed teachers of the trained graduate
Grade. Thus, there is no illegality in the
impugned order dated 23.07.2020.

15. After hearing arguments of
learned counsel for respective parties and
going through the material available on
record, it is evident that the fact of the
matter is that Section 2(l) of the Act of
1982, defines ''year of recruitment', as a
period of 12 months commencing from first
day of July of a Calender year, therefore,
both the posts that of Lecturer in Physics
and Lecturer in Sanskrit which respectively
fall vacant on 31.08.2019 and 20.09.2019
actually became available in the same ''year
of
recruitment'.
Therefore,
the
first
argument that since post of Lecturer,
Physics had fallen vacant at an earlier point
of time has no meaning in terms of the
definition of the ''year of recruitment',
which is when read with the provisions
contained in Rule 14(1), then it is apparent
that any vacancy which has occurred
during the same recruitment year then, they
are to be considered together for being
filled up by promotion for which purpose
all teachers working in trained graduates
Grade or certificate of teaching Grade
possessing the prescribed qualification for
the post and having completed five years
continuous service as such on the first day
of the year of recruitment are to be
considered for promotion to the Lecturers
Grade.

16. For ready reference Rule 14 of the
Rules of 1998 is reproduced here-in-under:-

Rule 14 of the Rules of 1998
provides a procedure for recruitment by
promotion and Rule 14(1)(2)&(3) reads as
under:-

"14. Procedure for recruitment
by promotion. -(1) Where any vacancy is to
be filled by promotion, all teachers working
in Trained graduates grade or Certificate
of Teaching grade, if any, who possess the
qualifications prescribed for the post and
have completed five years continuous
regular service as such on the first day of
the year of recruitment shall be considered
for promotion to the Lecturers grade or the
Trained graduates grade, as the case may
be, without their having applied for the
same.

Note. - For the purposes of this
sub-rule, regular service rendered in any
other recognised institution shall be
counted for eligibility, unless interrupted
by removal, dismissal or reduction to a
lower post.

(2) The criterion for promotion
shall be seniority subject to the rejection of
unfit.

(3)
The
Management
shall
prepare a list of teachers referred to in
sub-rule (1), and forward it to the Inspector
with a copy of seniority list, service
records, including the character rolls, and
a statement in the pro forma given in
Appendix 'A'."

17. This when sub-rule 2 of Rule 14 is
read, it implies that a list of all the
Lecturers in different subjects working in
414 INDIAN LAW REPORTS ALLAHABAD SERIES
the College is to be prepared in the order of
seniority and promotion is to be granted on
the basis of seniority in the feeder cadre
subject to the rejection of unfit.

18. As is evident from the order dated
23.07.2020 that Sri Mahtab Ahmad is
senior to the petitioner and, therefore his
name should have been recommended for
promotion to the post of Lecturer, Sanskrit
so to fill the vacancy of a Lecturer under
50% quota prescribed for promotion, then
the petitioner has no case in the light of the
provisions contained in Rule 14 of 1998
Rules when, they are read in the light of the
definition of the ''recruitment year', as
provided under Section 2(l) of the Act of
1982.

19. It is not the case of the petitioner
that in the cadre of Assistant Teacher, L.T.
Grade, he is senior to said Sri Mahtab
Ahmad i.e. respondent no.5.

20. In absence of any challenge to the
seniority of Sri Mahtab Ahmad in the
feeder cadre of Assistant Teacher, L.T.
Grade over the petitioner, when Scheme of
Promotion is examined as contained in
Rule 14 then it is evident that the
Management of the College acted illegally
and arbitrarily in forwarding the name of
the petitioner for promotion to the post of
Lecturer, Physics in preference to the
respondent no.5 who is admittedly senior to
the petitioner in the feeder cadre.

21. Therefore, the ratio of the law laid
down in case of B.P. Tripathi (supra) and
Pati Ram Pal (supra) in fact are against the
petitioner and have no application to his
benefit. Thus, the impugned order dated
23.07.2020 cannot be faulted with.

22. Other grounds like violation of
principles of natural justice and not
providing complete opportunity of hearing
to the petitioner is not germane in cases
where there is clear infraction of the
statutory provisions.

23. In this regard, law laid down by
Hon'ble Supreme Court in case of U.P.
Junior Doctors' Action Committee Vs. B.
Sheetal Nandwani (Dr.) as reported in AIR
1991 SC 909 is relevant wherein, it has
been held that where a benefit is obtained
by committing fraud, the Authorities are
not obliged to comply with the principles of
natural
justice
before
cancelling
the
advantage obtained by such fraud.

24. Similarly, in the case of Union of
India Vs. O. Chakradhar as reported in
2002 (3) SCC 146, it has been held that
where because of widespread illegalities
and irregularities committed in conducting
a selection, the process is cancelled, the
same cannot be faulted on the ground of
violation of principles of natural justice
because individuals in the select list were
not given an opportunity of being heard
before such cancellation.

25. In the present case, it is apparent
that the benefit of promotion was obtained
by committing fraud in collusion with the
Management Committee and in violation of
the statutory rules and regulations. The act
of the Management Committee in favouing
the petitioner is fraught with illegalities and
irregularities, therefore, cancellation of
such promotion order cannot be faulted on
the ground of violations of principles of
natural justice saying that petitioner was
not given full opportunity of hearing before
passing of the impugned order.
10 All. Saurabh Gupta Vs. UIDAI & Ors.
415

26. Thus, the petition fails and is,
accordingly, dismissed.
----------
(2020)10ILR A415
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2020

BEFORE
THE HON'BLE RAJAN ROY, J.

Service Single No. 8234 of 2020

Saurabh Gupta ...Petitioner
Versus
UIDAI & Ors. ...Respondents

Counsel for the Petitioner:
Shireesh Kumar

Counsel for the Respondents:
Suryabhan, Zoheb Hossain

A. Service Law - Adhaar (Targeted delivery
of Financial and other subsidies, benefits
and services) Act, 2016: Section 1(3),
2(e), 21(1)/54(1)/54(2)(x), 11, 18, 22, 59
- Adhaar and other laws (Amendment)
Act, 2019 - Appointment & selection -
Unique Identification Authority of India
(appointment of officers and employees)
Regulations, 2020: Regulation 2(1)(b), 3,
5, 11

The petitioner came on deputation in the year
2014 when UIDAI was still functioning as an
attached office of the Planning Commission/
Department of Electronics and Information
Technology of the Government of India and his
selection as also tenure of deputation were
governed by the aforesaid Department of
Personnel
and
Training
(DoPT)
Office
Memorandum's (OM) dated 17.06.2010 which
was subsequently modified by OM dated
17.02.2016 and this fact was mentioned in the
OM dated 10.10.2013 in pursuance to which the
petitioner applied for deputation. Clause 6 of the
DoPT OM dated 17.02.2013 therefore did not
make these OM's inapplicable, at least till
11.07.2016 i.e., prior to Act, 2016 coming into
force. (Para 25)
The exercise of selection and appointment of
the petitioner on deputation was initiated by
UIDAI after its constitution by the notification
dated 28.01.2009 but prior to 12.07.2016,
therefore, this action is to be treated as validly
done under the Act, 2016 in view of Section 59.
The tenure of deputation of the petitioner
continued to be governed by the DoPT OM's
dated 17.06.2010and 17.02.2016. (Para 30, 31)

In case of appointment on deputation based
on
selection,
repatriation
to
parent
organization is permissible on ground of
unsatisfactory work or unsuitability. There has
to be some rationale behind such decision.
There is o specific provision of recruitment
and appointment by way of deputation but a
general provision contained in Section 21 as
amended by the Act, 2019 which specifies the
terms
and
conditions
of
officers
and
employees of UIDAI by regulations to be
made by the UIDAI. There is nothing in the
Regulation, 2020 which expounds that a
person on deputation cannot be repatriated,
not even on grounds of unsuitability and
unsatisfactory work. More so, the Court
observed that even in the absence of any
specific
provision
of
repatriation
of
a
deputationist or curtailment of deputation in
the Regulation, 2020 it cannot be said that
such
a
person
cannot
be
repatriated.
Absorption under the Regulations, 2020
is not a matter of right but is based on
consideration by a selection committee
on being find suitable for the position.
Further, the petitioner has not been
absorbed in the borrowing department
not has his lien been terminated in the
parent organization, therefore, he could,
for justifiable reasons based on his
unsuitability and unsatisfactory work, be
repatriated to his parent organization by
a bonafide decision of the competent
authority. (Para 33, 34, 36, 37, 38)

Order of the deputation mentioned that the
deputation of the petitioner was for a period of
3 years or until further orders. The words 'until
further orders' is indicative of the clear intent
that deputation could be curtailed prior to 3
years and could be repatriated even earlier.
(Para 39)