# Ravindra Singh v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 781
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-29
- **Case number:** Special Appeal No. 79 of 2010
- **Bench:** Ferdino I. Rebello, C.J. A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-singh-v-state-of-u-p-and-others-41695
- **Pages:** 7

## Headnote

Act,
1921
or
Subsequent Amendments by various
difficulties
removal
order-The
question whether the appointment of
the Appellant was against a temporary
vacancy or as Short Term Vacancy and
whether
the
procedure
for
appointment as was existing at the
time the vacancy followed?

After
examining
the
various
difficulties removal order-and the Act
it is clear-no requirement of notifying
the vacancy or publication in 2 news
papers as held by the Full Bench
"Kumari Radha Raizada" (1994 ALJ
1077). Nothing has been placed before
the court by the State showing the
manner
and
the
conditions
of
appointment prescribed for filing in
the Temporary Vacancies-other than
that followed by the Management-the
Management as is apparent from the
facts or record, has advertised the
post in question cannot be saidprocedure
for
appointment
on
Temporary/Short
Term
Vacancy
without authority of law
782 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Held Para 14

Considering these aspects of the matter,
we are clearly of the opinion that under
the Act 1921 and/or Amendment Act
1975, and/or various Orders passed to
remove the difficulties, there was no
requirement that the vacancy should be
notified by publication in two newspapers.
Nothing has been placed before us by the
State
showing
the
manner
and
the
conditions of appointment prescribed for
filling in the temporary vacancies other
than that followed by the Management.
The Management, as is apparent from the
facts on record, had advertised the post in
question. In our opinion, therefore, it
cannot be said that the procedure for
appointment on temporary vacancy/shortterm vacancy was without authority of law
Case Law Discussed:
1994 ALJ 1077

## Text

2 All] Ravindra Singh V. State of U.P. and others
781

(i) There will be no recovery from
the
persons
who
have
already
superannuated or are going to attain the
age of superannuation within five years
from today.

(ii) In respect of the employees, who
will be superannuating after five years,
from such employees, 50 % arrears paid
as dearness allowance less component of
fixed pay can be recovered.

(iii) The amount of arrears, which
can be recovered from the employees,
shall be in easy installments spread over a
period of five years.

(iv) In respect of the employees
working in the U.P. State Bridge
Corporation
or
other
governmental
bodies, who have not yet been paid
arrears and in respect of whom the
recommendations
of
the
Sixth
Pay
Commission are still pending though
made applicable to regular employees, the
respondents,
whether
it
be
the
Government or the Corporation, are
directed to complete the process within a
period of three months from today and
make applicable the revised pay from the
date the work charged employees in the
State are being paid.

Appeal Allowed
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No. 79 of 2010

Ravindra Singh

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

Counsel for the Appellant:
Sri Ashwani K. Misra, Adv.
Sri Atul Khaneja

Counsel for the Respondents:
Dr. Y.K. Srivastava,
C.S.C.

U.P.
Intermediate
Act,
1921
or
Subsequent Amendments by various
difficulties
removal
order-The
question whether the appointment of
the Appellant was against a temporary
vacancy or as Short Term Vacancy and
whether
the
procedure
for
appointment as was existing at the
time the vacancy followed?

After
examining
the
various
difficulties removal order-and the Act
it is clear-no requirement of notifying
the vacancy or publication in 2 news
papers as held by the Full Bench
"Kumari Radha Raizada" (1994 ALJ
1077). Nothing has been placed before
the court by the State showing the
manner
and
the
conditions
of
appointment prescribed for filing in
the Temporary Vacancies-other than
that followed by the Management-the
Management as is apparent from the
facts or record, has advertised the
post in question cannot be saidprocedure
for
appointment
on
Temporary/Short
Term
Vacancy
without authority of law
782 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Held Para 14

Considering these aspects of the matter,
we are clearly of the opinion that under
the Act 1921 and/or Amendment Act
1975, and/or various Orders passed to
remove the difficulties, there was no
requirement that the vacancy should be
notified by publication in two newspapers.
Nothing has been placed before us by the
State
showing
the
manner
and
the
conditions of appointment prescribed for
filling in the temporary vacancies other
than that followed by the Management.
The Management, as is apparent from the
facts on record, had advertised the post in
question. In our opinion, therefore, it
cannot be said that the procedure for
appointment on temporary vacancy/shortterm vacancy was without authority of law
Case Law Discussed:
1994 ALJ 1077

(Delivered by Hon'ble Ferdino I. Rebello, C.J.)

1. The appellant was petitioner no.1
in Writ Petition No. 39090 of 2007, which
came to be disposed of along with other
petitions
by
common
order
dated
04.12.2009. The appellant was initially
appointed as L.T. Grade Teacher against a
short-term vacancy (temporary vacancy).
The appellant along with others filed Writ
Petition No. 39090 of 2007 for quashing
the order dated 27.07.2007 and for a writ,
order or direction in the nature of
mandamus commanding the respondents
not to stop their salary. This appeal will
be restricted to the claim of the appellant.
The learned Single Judge in the impugned
order has noted the claim of the appellant
that he was appointed as an ad hoc L.T.
Grade Teacher against a vacancy caused
due to promotion of one Lallan Prasad
Shukla, who was working in Mahatma
Gandhi
Inter
College,
Sakhwania,
Kushinagar, from L.T. Grade Teacher to
Lecturers Grade, which was approved on
24.02.1981. The learned Judge has further
noted the case of the appellant that his
appointment was made after following the
procedure prescribed under the Second
Removal of Difficulties Order, 1981.The
District Inspector of Schools refused to
accord approval to the appointment of the
appellant. Against the said decision, a writ
petition came to be filed, which was
disposed of by requiring the District
Inspector of Schools to examine the
matter. The District Inspector of Schools
passed
an
order
approving
the
appointment of the appellant. However,
by a subsequent order dated 09.11.1999,
the District Inspector of Schools withheld
the salary of the appellant. Another writ
petition was filed by the appellant
wherein an interim order was granted on
09.11.2000. Thereafter, an order was
passed by the District Magistrate for
payment of salary on 15.02.2001. The
Secretary, Secondary Education by order
dated 19.02.2001 held that the District
Magistrate had no power to issue any
direction qua teachers of Intermediate
Colleges. The matter was referred to the
State
Government.
A
report
was
submitted by the authorities and it was
pointed out that the appointment of the
appellant was not in accordance with law.
The State Government, however, issued
an order sanctioning salary to the
appellant, and by order dated 17.02.2004
directed the absorption of the appellant in
other
institution.
Vide
order
dated
27.02.2007,
the
State
Government
recalled its order dated 17.02.2004. The
stand of the State had been that the
appointment of the appellant along with
others was not in accordance with law
and, therefore, he was not entitled to
salary.
2 All] Ravindra Singh V. State of U.P. and others
783

2. A supplementary affidavit was
filed on behalf of the appellant and others.
As regards the appellant, it was pointed
out that the vacancy was advertised on
30.10.1980 in a local newspaper, namely,
'Hindustan Ka Swaroop' published from
Deoria, and that the quality point marks
had been awarded and the appellant was
selected. The learned Single Judge
proceeded on the footing that the
advertisement of the vacancy did not
satisfy the requirement of law as laid
down by a Full Bench of this Court in the
case of Kumari Radha Raizada & Ors.
Vs.
Committee
of
Management,
Vidyawati Darbari Girls Inter College
& Ors., 1994 All. L.J. 1077. Hence, the
present appeal.

3. At the hearing of the appeal, on
behalf of the appellant, learned counsel
submits
that
the
learned
Judge
misdirected himself in law inasmuch as
the judgment in Km. Radha Raizada
(supra) relied upon had no application, as
the appointment of the appellant was
made in the year 1980, whereas the
amendment, which was considered in the
case of Km. Radha Raizada (supra),
namely, the Uttar Pradesh Secondary
Education Services Commission and
Selection Board Act, 1982 (hereinafter
referred to as the 'Act 1982'), came into
force with effect from 14th July, 1981. It
is, therefore, submitted that the procedure
laid down in Km. Radha Raizada (supra)
for publication of vacancy in two
newspapers was not there when the
appellant
was
appointed
and
the
appellant's appointment was in terms of
the law then in force, namely, the
Intermediate
Education
Act,
1921
(hereinafter referred to as the 'Act 1921'),
as amended by the U.P. Secondary
Education Laws (Amendment) Act, 1975
(hereinafter
referred
to
as
the
'Amendment Act 1975').

4. To consider the question, we may
first reproduce Section 16E (11) of the
Act
1921,
as
substituted
by
the
Amendment Act, 1975, which reads as
under:-

"16-E. Procedure for selection of
teachers and head of institutions. - (1)
 .... ... .... .... .... ....

(11).
Notwithstanding
anything
contained in the foregoing sub-sections,
appointments in the case of a temporary
vacancy caused by the grant of leave to an
incumbent for a period not exceeding six
months or by death or retirement of an
incumbent
occurring
during
an
educational session, may be made by
direct recruitment or promotion without
reference to the Selection Committee in
such
manner
and
subject
to
such
conditions as may be prescribed."

5. It would, thus, be clear that the
appointment in the case of a temporary
vacancy caused by grant of leave to an
incumbent for a period not exceeding six
months or by death or retirement of an
incumbent
occurring
during
an
educational session, could be made by
direct recruitment or promotion without
reference to the Selection Committee in
such
manner
and
subject
to
such
conditions as may be prescribed. The
Amendment Act 1975 also contained
Section 22, which provided for removal
of difficulties and conferred powers on
the State Government to remove the
difficulties by an order not inconsistent
with the provisions of the Act. Thereafter,
various Orders came to be issued. The
first Order was the U.P. Secondary
784 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Education
(Removal
of
Difficulties)
Order, 1975. Order 2 (a) to 2 (g) of the
said Order read as under:-

"2.(a)
Notwithstanding
anything
contained in Section 14 of the aforesaid
Act, any substantive or leave vacancy or
any vacancy existing or occurring during
the current academic session of the Head
of Institution or, a teacher of an institution
may be filled in by the Committee of
Management, on ad hoc basis in the
manner provided hereunder till such
period, not exceeding six months in any
case, as a person duly selected in
accordance with Section 14 aforesaid is
appointed against such vacancy.

(b) The vacancy of the Head of
Institution shall be filled-

i) in case of Intermediate College, by
the seniormost teacher of the institution in
the Lecturer's grade;

(ii) in case of High School raised to
the level of Intermediate College, or a
Junior High School raised to the level of
High School, during the current academic
session, by the Headmaster of such High
School or Junior High School, as the case
may be:

Provided that the seniormost teacher
or the Headmaster, as the case may be,
possesses a good record of service and
administrative ability.

(c) The vacancy of, a teacher in the
Lecturer's grade of L.T. Grade or C.T.
Grade, shall be filled in by the seniormost
teacher of the institution in the L.T.
Grade, C.T. Grade and J.T.C./B.T.C.
grade respectively.

(d) Where any vacancy cannot be
filled in the manner laid down in the
preceding clauses, the same vacancy be
filled in on ad hoc basis for the same
maximum period as laid down in Clause
(a), by appointment of outsiders after
selection by a Selection Committee
consisting of three members, which may
be constituted for the purpose on an ad
hoc
basis
by
the
Committee
of
Management.

(e) Any person to be eligible for
being appointed under Clauses (b), (c)
and (d) shall possess the minimum
qualifications prescribed in Appendix 'A'
referred to in Regulation 1 of Chapter II
of the calendar of the Board of High
School and Intermediate Education.

f) Where an account of difference or
dispute or for any other reason, there is no
Committee of Management in effective
control of the affairs of an institution or
has not been recognized as such by the
Inspector and no Authorised Controller
has
been
appointed
by
the
State
Government in respect of such institution,
the
powers
of
the
Committee
of
Management in the foregoing clauses
shall in the case of appointment of the
Head of institution be exercised by the
Inspector and in the case of appointment
of, a teacher be exercised by the Head of
the Institution concerned.

(g) All appointments made under the
foregoing clauses shall as soon as may be
reported
to
the
Inspector
giving
particulars
of
qualifications
and
experience in respect of each person and
the Inspector shall have the power to
disapprove any appointment made in
contravention of the foregoing provisions
upon which the appointment in question
2 All] Ravindra Singh V. State of U.P. and others
785
shall cease. The decision of the Inspector
in this regard shall be final."

6. By the U.P. Secondary Education
(Removal of Difficulties) Second Order,
1976, the period of ad hoc appointment
was extended. Subsequent Orders were
also issued. This continued to be a law till
the Act 1982 came into force.

7.

On
behalf
of
the
State
respondents, learned counsel submits that
the concept of short-term appointment
came, for the first time, in view of the Act
1982 and the question, therefore, for
payment of salary to the appellant
appointed against a short-term vacancy
would not arise. It is also submitted that
there is no material on record to show that
there was a short-term vacancy and, as
such, the appointment of the appellant,
being not against a regular vacancy, is
illegal.

8. The question that we have been
called upon to answer would be, whether
the Appellant was appointed against a
temporary vacancy, now described as
Short Term Vacancy, and the procedure
for appointment, as was existing at the
time the vacancy was advertised, was
followed?

9. The appellant, in the writ petition
filed along with others, in paragraph 3 has
clearly set out that he was appointed as
Assistant Teacher on 26.12.1980 on a
short-term vacancy that arose due to
promotion of Sri Lallan Prasad Shukla to
the Lecturers Grade in Mahatma Gandhi
Inter College, Sakhwania, Kushinagar. In
answer to that, the District Inspector of
Schools in the affidavit has merely set out
that the contents of paragraph 3 of the
writ petition need no comments. Apart
from that, the appellant had, along with
others, relied on a document issued by the
Additional Director of Education, which
mentions, at serial no.2, the name of the
appellant and that his appointment has
been shown against a short-term vacancy.
A supplementary affidavit was also filed
by the appellant, wherein it was pointed
out that one Dasratha Nand Sahai, who
was posted as Lecturer of Hindi got
appointed as Lecturer in a Degree College
at Barhaj, Deoria and, therefore, he
resigned from the post of Lecturer from
the Mahatma Gandhi Inter College and, as
such, a vacancy arose and on the said
vacancy, the Committee of Management
recommended the name of Shri Lallan
Prasad Shukla for promotion as Lecturer
on ad hoc basis, who was duly qualified.
Financial approval to his appointment was
granted on 24.02.1981. Consequent to the
vacancy caused by ad hoc promotion of
Lallan Prasad Shukla, the post of L.T.
Grade Teacher was advertised. Five
candidates applied and the appellant's
name was proposed for appointment, as
he had secured highest marks. All this
material clearly establishes that the
Appellant
was
appointed
against
a
temporary vacancy and continued in the
short term vacancy. These aspects, it
appears, have not been considered by the
learned Single Judge.

10. It has also been brought to our
notice that the order dated 27.07.2007,
impugned in the writ petition, also
considered the order passed in Writ
Petition No. 61288 of 2006. That was a
petition filed by one Veer Bahadur Singh,
who was appointed on the post of
Assistant Clerk in Sri Krishn Intermediate
College,
Semara,
Kushinagar.
The
grievance of the petitioner in the said writ
petition was against the decision of the
786 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

District Inspector of Schools, that there
was no post. He had prayed in the said
petition to direct the respondents to permit
him to continue in service. The issue
involved in this appeal, therefore, has no
connection with the order in Writ Petition
No. 61288 of 2006. To that extent, the
impugned order based on irrelevant
material, is also liable to be quashed and
set aside on that count.

11. The question, then, for our
consideration is, whether the judgment of
the Full Bench in Km. Radha Raizada
(supra) would apply to the facts of the
present case. The Full Bench framed four
questions for consideration, which read as
under:-

"(a) Whether S. 33 of the U.P. Act
No. 5 of 1982 suffers from vice of
excessive delegation of legislative power
and as such it is void?

(b) If the answer to question No. (a)
is in negative, whether Removal of
Difficulties Orders published on 31st July,
1981, removal of Difficulties (Second)
Order published on 11th September,
1981, and Removal of Difficulties (Third)
Order published on 30th January, 1982
issued by the Government tend to amend,
scheme and essential features of the Act
and as such are ultra vires the provisions
of Section 33 of the Act?

(c) What would be the criteria and
procedure for ad hoc appointment of a
teacher or Principal either under the
Removal of Difficulties Order or under S.
18 of the U.P. Act No. 5 of 1982?

(d) Whether any approval of prior
approval of the District Inspector of
Schools or Regional Inspectress of Girls
Schools, as the case may be, is necessary
for making ad hoc appointment of a
teacher or Principal either under the
Removal of Difficulties Order or under S.
18 of the Act?

12. The learned Full Bench was
pleased to answer questions (c) and (d)
together which are relevant for our case.
The learned Bench noted that the Act,
which replaced the U.P. Ordinance No. 8
of 1981, came into force with effect from
14th July, 1981. It is in that context, as
there were difficulties, the First Removal
of Difficulties Order was issued by
notification
dated
31st
July,
1981.
Therefore, the issue considered and
answered had no connection either with
the Amendment Act 1975 or with the Act
1921, and the judgment would, therefore,
clearly be not applicable to the facts of the
present case.

13. The Full Bench judgement in
Km. Radha Raizada (supra) came up for
consideration in the case of Ashika
Prasad
Shukla
Vs.
The
District
Inspector of Schools, Allahabad &
Anr., [(1998) 3 ESC 2006 (All)]. But,
however, again it was in respect of an
appointment made after coming into force
of the Act 1982. The learned Full Bench
in Km. Radha Raizada (supra) noted that
the procedure of advertisement, which
had been followed by putting a notice on
the notice board of the institution did not
give equal opportunity to all eligible
candidates of the District, Region or the
State to apply for consideration for
appointment against the said short-term
vacancy and, therefore, directed that the
Management,
after
intimating
such
vacancies to the District Inspector of
Schools, should notify the same at least in
two
newspapers
having
adequate
2 All] State of U.P. and another V. Narendra Singh
787
circulation in Uttar Pradesh, in addition to
notifying the same on the notice board of
the institution. Thus, it is by judicial
interpretation, in order to meet the test of
Article 16 of the Constitution of India, the
requirement was put for advertising the
vacancy
in
two
newspapers
having
circulation in the State. If at the relevant
time the Management had followed the
procedure for advertising a temporary
vacancy, in the absence of a challenge to
that procedure, that procedure cannot be
faulted.

14. Considering these aspects of the
matter, we are clearly of the opinion that
under the Act 1921 and/or Amendment Act
1975, and/or various Orders passed to
remove the difficulties, there was no
requirement that the vacancy should be
notified by publication in two newspapers.
Nothing has been placed before us by the
State showing the manner and the
conditions of appointment prescribed for
filling in the temporary vacancies other than
that followed by the Management. The
Management, as is apparent from the facts
on record, had advertised the post in
question. In our opinion, therefore, it cannot
be said that the procedure for appointment
on temporary vacancy/short-term vacancy
was without authority of law.

15. Accordingly, the impugned order
of
the
learned
Single
Judge
dated
04.12.2009 in Writ Petition No. 39090 of
2007, insofar as it relates to the appellant, is
set aside. Consequently, rule made absolute
in the following terms:-

"The order dated 27.07.2007 is
quashed insofar as the appellant herein,
petitioner no.1 in Writ Petition No. 39090
of
2007,
is
concerned.
The
State
respondents are directed to pay the appellant
the arrears of past salary and continue to
pay him salary till the time he continues to
occupy the post."
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2010

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE DEVENDRA KUMAR ARORA, J.

Writ Petition No. 134 (S/B) of 2002

State of U.P and another
 ...Petitioner
Versus
Narendra Singh

 ...Respondents

U.P.
Govt.
Servant(Disposal
of
Representation
against
the
Annual
Confidential Reports of Allied matters)
Rules 1995 Rule-5-Delay in disposal of
Representation against adverse entryshall be deem no disqualification for
consideration crossing efficiency bar
and other service matter-service tribunal
committed no illegality by quashing the
order-passed beyond statuary periodpetition dismissed-without considering
individual case of employees.

Held Para 26

Accordingly, all the writ petitions are
hereby dismissed with the observation
that
in
the
cases
where
the
representation against the adverse entry
has not been disposed of in accordance
with provisions of Rule 4 of U.P.
Government
Servants
(Disposal
of
Representation
against
Annual
Confidential Reports and allied Matters)
Rule, 1995, such report shall not be
treated as adverse for the purposes of
promotion, crossing of efficiency bar and
other service matters of the government
servant concerned as per the mandate of
Rule 5 of Rules, 1995.
Case Law Discussed:
AIR 1954 SC 322, AIR 1961 SC 1527, (1999)3
SCC 422, (1959) 359 US 535: 3 L Ed 2d 1012,