# Rishi Deo Pandey & Ors v. The State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 888
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-17
- **Case number:** C.M.W.P. No. 74060 of 2010
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishi-deo-pandey-ors-v-the-state-of-u-p-ors-43229
- **Pages:** 5

## Headnote

Board Act 1982-appointment on post of L.T.
Grade teacher-after publication of vacancy
in two newspapers-duly approved by DIOSsubsequently
confirmed
by
Regional
Committee-appointment made in 1991getting
salary
thereafter-can
not
be
disturbed-as Division Bench classification
about applicability of requirement of Radha
Raizada case prospectively.
Held: Para-23
After careful consideration of the matter,
I find that the submission of the learned
counsel
for
the
petitioners
merits
acceptance. Accordingly, I am of the
view that the petitioners, who were
working continuously since 1991 with
the approval of the DIOS and the
Regional
Level
Committee,
no
interference
is
called
for
in
their
continuance. With regard to the case of
Gajraj Singh, the DIOS has rightly held
that he has raised his claim after 15
years.
Case Law discussed:
[(1983) 3 U.P.L.B.E.C 1722];(1994)3 U.P.L.B.E.C

## Text

888
 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
C.M.W.P. No. 74060 of 2010
Rishi Deo Pandey & Ors.
 ...Petitioners
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Nitya Prakash Tiwari, Sri D.K. Singh,
Sri Indrasen Singh Tomar, Sri Vivek
Kumar Birla, Sri V.K. Singh
Counsel for the Respondents:
C.S.C., Sri Uma Nath Pandey
U.P. Secondary Education Services Selection
Board Act 1982-appointment on post of L.T.
Grade teacher-after publication of vacancy
in two newspapers-duly approved by DIOSsubsequently
confirmed
by
Regional
Committee-appointment made in 1991getting
salary
thereafter-can
not
be
disturbed-as Division Bench classification
about applicability of requirement of Radha
Raizada case prospectively.
Held: Para-23
After careful consideration of the matter,
I find that the submission of the learned
counsel
for
the
petitioners
merits
acceptance. Accordingly, I am of the
view that the petitioners, who were
working continuously since 1991 with
the approval of the DIOS and the
Regional
Level
Committee,
no
interference
is
called
for
in
their
continuance. With regard to the case of
Gajraj Singh, the DIOS has rightly held
that he has raised his claim after 15
years.
Case Law discussed:
[(1983) 3 U.P.L.B.E.C 1722];(1994)3 U.P.L.B.E.C
1551.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1. Three petitioners, who are
working as Assistant Teachers, have
joined this writ petition seeking issuance
of writ of certiorari quashing the orders
dated
14.6.2010
and
3.12.2010
respectively,
whereby
the
District
Inspector of Schools1 had stopped the
salary of the petitioners and later on found
that their appointment was illegal.
2. Essential facts are that the
National Inter College, Harraiya, District
Basti2
is
a
recognized
and
aided
institution.
The
said
institution
is
imparting education upto the level of
Intermediate classes. It receives financial
aid from the State funds. The institution is
governed by the provisions the U.P. Act
No. II of 19213 as well as U.P. Act No. 5
of 19824
3. It is averred in the writ petition
that six posts of the LT Grade Assistant
Teacher fell vacant. The Committee of
Management sent requisition to the U.P.
Secondary Education Services Selection
Board5 through DIOS on 5.6.1989,
2.5.1990 and 27.4.1991 to fill up the said
vacancies. When no select list was sent by
the Board, the Committee of Management
initiated the recruitment process for the
appointment on adhoc basis in terms of
the provisions of the Commission Act,
1982.
4. The vacancies were advertised on
6.6.1991
in
a
newspaper
'Dainik
Gramdoot'
in
addition
to
the
advertisement on the notice board. A copy
of the newspaper is on record as
Annexure-3. The petitioners claim that
they were found suitable on the basis of
2 All] Rishi Deo Pandey & Ors. Vs. The State of U.P. & Ors.
889
their qualification and quality point
marks. The Committee of Management
sent papers to the DIOS for financial
approval. When no communication was
received, it issued the appointment letter.
It is stated that the petitioners have sent
repeatedly representations for their salary
on the ground that there is a deemed
approval of their appointment as there
was no communication from the office of
the DIOS turning down the resolution of
the Committee of Management for the
appointment of the petitioners.
5. The petitioners having no other
option, preferred a writ petition no. 36189
of 2002 before this Court which was
disposed of on 23.2.2005 issuing a
direction upon the DIOS to consider the
representation of the petitioners. The
DIOS after affording an opportunity to the
concerned parties, accorded the approval
vide his order dated 29.4.2006 till the
regular selected candidates join the post.
In compliance of the order of the DIOS, it
is
stated
that
the
petitioners
are
continuously
receiving
their
salary
regularly.
6. It appears that one Dhirendra
Kumar Singh has also claimed that he was
also appointed as adhoc teacher in the
same institution, preferred a writ petition
no. 27015 of 2002.This Court dismissed
his writ petition vide order dated
19.3.2009.
The
Court
directed
the
Regional Committee constituted under
Government Order dated 19.12.2000, to
look into the matter of payment of salary
to other seven persons who along with the
petitioners were alleged to have been
appointed
by
the
Committee
of
Management on 7.7.1991 and were
getting salary under the orders of the
DIOS.
7. In compliance thereof, the
Regional Level Committee passed an
order on 22.3.2010 and it found that the
petitioners are receiving their salary and
their appointment was approved by the
DIOS who had also affirmed the said
order vide his communication dated
11.2.2010
to
the
Regional
Level
Committee.
8. In pursuance of the order of the
Regional
Level
Committee,
the
petitioners
continued
to
work
uninterruptedly and they were also paid
their salary regularly. It appears that one
Sri Gajraj Singh preferred a writ petition
in 2005 claiming that he was also
appointed as adhoc teacher since 1992.
The said writ petition was dismissed by
this Court vide its order dated 3.3.2007.
Dissatisfied with the order of this Court,
he preferred a Special Appeal, which was
withdrawn by him with a liberty to
approach the DIOS. After withdrawal of
the
Special
Appeal,
Gajraj
Singh
preferred a representation before the
DIOS, who rejected his claim on
3.11.2009 on the ground that his claim is
barred by laches as his appointment was
made in 1982 but first time he approached
the Hon'ble Court and the appropriate
authority after a lapse of more than 15
years.
9. Sri Gajraj Singh being aggrieved
with the order dated 3.11.2009, preferred
a writ petition no. 26178 of 2010 before
this Court that one Yashwant Singh, who
is similarly placed person, is receiving
salary but the petitioner's case has been
rejected. This Court vide order dated
10.5.2010 directed the petitioner therein
to implead Sri Yashwant Singh. The
Court has also issued a direction to the
DIOS to appear before the Court on
890
 INDIAN LAW REPORTS ALLAHABAD SERIES
19.5.2010 along with all relevant records
pertaining to the payment of the petitioner
and Yashwant Singh along with his
affidavit explaining how the salary is
being paid to Yashwant Singh.
10.
Against the said order, Sri
Yashwant Singh preferred a Special Appeal
No. 928 of 2010 but the said appeal was
dismissed on the ground that no interim order
has been passed by the learned Single Judge
stopping his salary, therefore, there is no final
order. It appears that in pursuance to the order
passed by this Court on 10.5.2010 whereby
the DIOS was directed to produce the record
and file his personal affidavit, the DIOS
passed the impugned order dated 14.6.2010
stopping the salary of all the petitioners.
11. From the record, it appears that
the petitioners have preferred a Special
Appeal Defective No. 921 of 2010 before
this Court challenging the order of the
DIOS. This Court observed that it will be
open to the appellants to move before the
learned Single Judge for impleading them
as parties for varying the orders by proper
application or to challenge the order dated
14.6.2010 by filing a fresh writ petition.
With the said observation the said appeal
was disposed of on 8.10.2010. In the
meantime, the DIOS by the impugned
order has held that the entire selection
process held in the year 1991 was vitiated
on the ground that no advertisement was
made in the newspaper. There is no
document indicating the constitution of
the Selection Committee and thus, the
appointment of the petitioners was
contrary to law. A counter affidavit has
been filed wherein the reasons mentioned
in the impugned order has been reiterated.
12. Heard Sri H.P. Sahi, Advocate
holding brief of Sri V.K. Singh, learned
counsel
for
the
petitioner,
learned
Standing Counsel and perused the record.
13. Learned counsel for the
petitioners submits that the petitioners'
appointment was made in the year 1991
following the procedure for appointment
on
adhoc
basis
after
issuing
an
advertisement in a local newspaper and
the notice on the board. He further
submits that the appointment of the
petitioners was approved by the DIOS and
the Regional Level Committee. Thus, it
was not open to the DIOS to cancel their
appointment.
14. Learned Standing Counsel
submits that the order of the DIOS is void
as advertisements were not published in
the newspaper and the procedure was not
followed. He has also invited the attention
of the Court to the various paragraphs of
the counter affidavit.
15. Undisputedly, in the institution
six vacancies of the Assistant Teachers
arose. The Committee of Management
sent their requisition to the Board for
appointment. This fact has not been
denied in the counter affidavit. When no
candidate was made available from the
Board, the Committee of Management
appointed the petitioners on adhoc basis
after issuing an advertisement in a single
newspaper and on notice board. The
papers relating to their appointment were
sent to the DIOS, who has accorded
approval on 26.4.2006, which is on record
as Annexure-7 to the writ petition.
16. It is also not disputed that since
29.4.2006, all the petitioners are receiving
their salary from the Salary Payment
Account and they are continuously
working in the institution. Two other
2 All] Rishi Deo Pandey & Ors. Vs. The State of U.P. & Ors.
891
teachers also approached this Court and in
one of the petitions, this Court had
directed the Regional Level Committee to
consider their case. This Court has also
taken a note of the fact that the petitioners
were also appointed in the same selection.
17. The Regional Level Committee
considered the entire matter and came to
hold that the petitioners' appointment
have been made with the approval of the
DIOS. The Regional Level Committee
has got verification from the then DIOS,
who was working at that time as a Joint
Director. The then DIOS has verified the
fact that the petitioners' appointment were
approved by him, thus, the Regional
Level
Committee
accepted
their
appointments as valid.
18. As regards the case of Gyanendra
Kumar, his matter was sent to the DIOS,
who had found that he has claimed his salary
after 15 years, therefore, on the ground of
delay, Gyanendra Kumar's case was rejected
by the DIOS. Later on the DIOS, in
compliance of the interim order has stopped
the salary of the petitioners vide its order
dated 10.5.2010. This Court has only asked
the DIOS to explain the fact and did not issue
any direction to stop the salary of the
petitioners. It appears that the DIOS has
passed an order stopping the salary of the
petitioners to save his neck. In my view, the
DIOS has transgressed his jurisdiction by
entering into validity of the appointment of
the petitioners, which could not have been
reopened by him in view of the fact that in
compliance of the order of this Court, the
Regional Level Committee has found that
the appointments of the petitioners are valid
and legal.
19. It would be relevant to mention
that DIOS was one of the members of
Committee
in
the
Regional
Level
Committee which has been constituted
under the Government Order dated
22.12.2000, therefore, the DIOS could not
have upturned the order of the Regional
Level Committee in which he was a
member.
20. Regard being had to the fact that
the Regional Level Committee had also
earlier passed an order in compliance of
the order of this Court, the proper course
before the DIOS was to send the matter to
the Regional Level Committee to consider
the matter afresh. Moreover, this Court
vide its order dated 10.5.2010 did not
issue any direction to the DIOS to go into
the validity of the order passed by the
Regional Level Committee.
21. The petitioners are working
since 1991 with the approval of the DIOS.
In-so-far the finding of the DIOS that
there was no evidence that advertisement
was issued in the two newspapers, the
petitioners have relied upon a judgment
rendered in the case of Ashika Prasad
Shukla Vs. District Inspector of Schools,
Allahabad
and
another
[(1998)
3
U.P.L.B.E.C. 1722]. A Division Bench of
this Court took the view that the statutory
provision provides only the advertisement
on the notice board. However, the Full
Bench in the case of Radha Raizada Vs.
Committee of Management (1994) 3
U.P.L.B.E.C. 1551 had laid-down the law
that for fair and proper selection, it is
incumbent
upon
the
Committee
of
Management to issue advertisement in
two newspapers although there is no
statutory requirement for publication of
the advertisement in two newspapers.
22. In view of the said law which
was laid-down for the first time in the
892
 INDIAN LAW REPORTS ALLAHABAD SERIES
year 1994 and later on a Division Bench
in 1998 has explained the law that the
requirement held in the case of Radha
Raizada (Supra) would be prospective in
nature.
23. After careful consideration of
the matter, I find that the submission of
the learned counsel for the petitioners
merits acceptance. Accordingly, I am of
the view that the petitioners, who were
working continuously since 1991 with the
approval of the DIOS and the Regional
Level Committee, no interference is
called for in their continuance. With
regard to the case of Gajraj Singh, the
DIOS has rightly held that he has raised
his claim after 15 years.
24. For the foregoing reasons, the
writ petition deserves to be allowed
and,accordingly, it is allowed. The
impugned orders dated 14.6.2010 and
3.12.201 are set aside.
25. However, the matter is remitted
back to the DIOS to verify whether the
petitioners are continuously working in
the institution. If it is found that they are
continuously working and they have been
paid their salary, no interference would be
made in their working.
--------