# Sachchidanand Sahkari Awas Samiti v. Greater Noida Industrial Development Authority & others

- **Citation:** (2004) 1 ILRA 117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-29
- **Case number:** Civil Misc. Writ Petition No. 7306 of 2003
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sachchidanand-sahkari-awas-samiti-v-greater-noida-industrial-development-40237
- **Pages:** 7

## Headnote

Constitution
of
India,
Article
226Termination of Assistant Teachers-in
Primary
School-run
by
cantonment
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
118
Board-appointment on the basis of 2
years
probation-termination
order-on
the ground those facing disciplinary
proceeding-reinstated
but
no
such
condition found place in appointment
letter-direction
issued
for
regular
absorbtion on existing or in future
vacancy.

Held- Para 20

It
is
true
that
the
petitioner
is
probationer and due to unforeseen event
his services can be terminated. But there
is
other
side
also.
Admittedly
the
services
of
the
petitioner
are
not
unsatisfactory. He has not come from
back door and is qualified. He came with
legitimate expectation to service in
employment of the Board. As stated
above 3 posts are available for such
employees. It is, therefore, just and
proper that the petitioner be absorbed
against the posts which are available or
which may become available in near
future say one year.

## Text

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1 All] Sachchidanand Sahkari Awas Samiti V. Greater Noida Industrial Development Authority & others 117

This Court accepted the rule as valid and
applicable in India in A.S. Ahluwalia v.
State of Punjab (1975) 3 SCR 82 : (AIR
1975 SC 98) and in subsequent decision
given in Sukhdev v. Bhagatram, (1975) 3
SCR 619: (AIR 1975 SC 1331), Mathew,
J., quoted the above-referred observations
of Mr. Justice Frankfurter with approval.
It may be noted that this rule, though
supportable also as emanating from
Article 14, does not rest merely on that
Article. It has an independent existence
apart from Article 14. It is a rule of
administrative law which has been
judicially evolved as a check against
exercise of arbitrary power by the
executive authority. If we turn to the
judgment of Mr. Justice Frankfurter and
examine it, we find that he has not sought
to draw support for the rule from the
equality clause of the United States
constitutional but evolved it purely as a
rule of administrative law. Even in
England,
the
recent
trend
in
administrative law is in that direction as is
evident from what is stated at pages 54041 in Prof. Wade's Administrative Law
4th Edition. There is no reason why we
should hesitate to adopt this rule as a part
of
our
continually
expanding
administrative law."

29. As is evident from paragraphs 3
and 6 of the letter dated 16.9.1996 from
the president of the petitioner society to
the General Manager (Estate), Greater
Noida, (Annexure-5 to the writ petition),
the petitioner had handed over possession
of its land to the respondent and a
certificate in this regard was issued by the
Patwari, and Greater Noida has erected
sign boards on the said land stating that
the land belongs to Greater Noida. Hence
we are of the opinion that the petitioner
handed over possession of its land to
Greater Noida.
30. As regards the statement in the
impugned letter dated 12.6.2000 that 3.06
acres land of the petitioner which lay west
of Hindon River was being considered by
the State Government for notifying it for
Noida, there is nothing on the record to
show that the said land was notified for
Noida or there is any such move. It is a
bald averment without any basis, and
hence has to be ignored.

31. For the reasons given above, this
writ petition is allowed. The impugned
order is quashed and a mandamus is
issued to the respondents to give physical
possession over the plots which have been
allotted to some of the members of the
petitioner, and to issue allotment letters to
the rest of the members of the petitioner
as
per
the
Memorandum
of
Understanding.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.9.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 7306 of 2003

Ajay Yadav

...Petitioner
Versus
Cantonment Board & another...Respondents

Counsel for the Petitioner:
Sri M.M. Sahai

Counsel for the Respondents:
Sri Shakti Dhar Dubey

Constitution
of
India,
Article
226Termination of Assistant Teachers-in
Primary
School-run
by
cantonment
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
118
Board-appointment on the basis of 2
years
probation-termination
order-on
the ground those facing disciplinary
proceeding-reinstated
but
no
such
condition found place in appointment
letter-direction
issued
for
regular
absorbtion on existing or in future
vacancy.

Held- Para 20

It
is
true
that
the
petitioner
is
probationer and due to unforeseen event
his services can be terminated. But there
is
other
side
also.
Admittedly
the
services
of
the
petitioner
are
not
unsatisfactory. He has not come from
back door and is qualified. He came with
legitimate expectation to service in
employment of the Board. As stated
above 3 posts are available for such
employees. It is, therefore, just and
proper that the petitioner be absorbed
against the posts which are available or
which may become available in near
future say one year.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. These writ petitions are based on
same facts and same questions of law are
involved in all these writ petitions. Since
in Writ Petition No. 7306 of 2003,
detailed reply of the respondents covering
the other two connected writ petitions has
been filed by way of counter affidavit,
therefore this writ petition is taken to be
the leadiong case.

2. The admitted facts in the above
noted
writ
petitions
are
that
the
Cantonment Board, Varanasi runs one
Junior High School, one Boys Primary
School, and one Girls Primary School.
The total strength of the teachers in all the
three schools is 18 as under :

(i) Junior High School
Head Master
1
Assistant Teacher 3

(ii) Boys Primary School
Head Master
1
Assistant Teacher 8

(iii) Girls Primary School
Head Master
1
Assistant Teacher 4

3. Sri Uma Shanker Ram, Head
Master and Sri G.K.Sharma, Assistant
Teacher in Junior High School retired on
2.6.2001 and 31.5.2001 respectively. One
of the vacancies of Head Masters was
filled up by promotion of Ms. Vibha
Srivastava. The resultant vacancies of two
posts of Assistant Teachers in Junior High
School were filled up by promotion of Sri
Raj Bahadur Yadav and Sri Rajesh Singh
Kushwaha. Due to above promotions two
vacancies of Assistant Teachers were
caused in the Boys Primary School while
one vacancy of Assistant Teacher was
already existing in the Boys Primary
School.

4. It appears that due to disciplinary
proceedings Sri M. Prasad and Sri H.N.
Pathak, Assistant Teacher in Primary
School were compulsorily retired from
service
on
17.7.2001.
The
above
mentioned five vacancies were to be filled
up by direct recruitment for which an
advertisement was published in 'Dainik
Jagran'
dated
18.7.2001
by
the
Cantonment Board inviting applications
for appointment of Assistant Teachers.
Out of the three vacancies, two were
reserved for general category candidates
and one was reserved for backward
candidate.
Interview
was
fixed
for
8.8.2001. One of the terms and conditions
of the advertisement was mentioned that it
is subject to "vacancies" laying down the
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1 All] Ajay Yadav V. Cantonment Board and another
119
terms and conditions of appointment of
the Assistant Teachers.
5. Pursuant to the advertisement the
petitioner being qualified applied for the
post of Assistant Teacher in the school
run by the Cantonment Board and was
selected. Vide letter dated 19.8.2001 the
petitioner was informed that he has been
selected with certain terms and conditions
enumerated in the letter. Condition nos. 3
and 4 are relevant. They were as under :
3.
vkidh fu;qfDr nks o"kZ dh ijhfo{kk vof/k ij gksxhA
4.
vkidk dk;Z vlarks"ktud ik;s tkus ij ;k vU;
fdlh dkj.ko'k fcuk fdlh iwoZ lwpuk crk;s lekIr fd;k tk
ldrk gSA

6. The contention of the petitioner is
that he did not give his willingness and
acceptance to the terms and conditions
enumerated in the aforesaid letter of offer
dated 19.8.2001 but the appointing
authority appointed the petitioner on
probation for a period of two years. The
copy of the said letter shows that the
petitioner was appointed as Assistant
Teacher on probation of two years and
that his services shall be governed by the
Cantonment Funds Service Rules, 1937
(hereinafter referred to as the CFS Rules)
as amended from time to time. The
petitioner
joined
his
services
and
continued to work till his services were
terminated by the Cantonment Executive
Officer, Varanasi under order dated
19.12.2002 with immediate effect, which
states that in pursuance of Cantonment
Board resolution nos. 19, 20 and 21 dated
18.12.2002 in consonance with condition
no. 4 of office letter dated 9.8.2001 the
temporary services of the petitioner as an
Assistant Teacher, Cantt. Board Boys
Primary School are terminated.

7. It appears that the two teachers
who had been compulsorily retired filed
appeal which were allowed and they were
ordered to be reinstated. Consequently the
Cantt.
Board
passed
resolution
for
terminating the services of the petitioner
with effect from 19.12.2002 (A/N) who
was still working as probationer. The
resolution nos. 19,20 and 21 referred to in
the order of termination by the Executive
Officer Cantt. Board are as under:-

19. The Board considered the Dte. DE,
Ministry of Defexzce, Central Command,
Lucknow letter no. PC 9878/GKS/LC 6
dated 12-12-2002 order dated 11.12.2002
of the G.O.C. -in Chief the appellate
authority in the above case, the Board
unanimously resolved that Sri G.K.
Sharma be reinstated in service as
Assistant Teacher Junior High School,
Cantt. Board, Varanasi with immediate
effect.

20. The Board Considered the Dte. DE,
Ministry of Defexce, Central Command,
Lucknow letter No. PC 9878/MP/LC6
dated 12.12.2002 order dated 11.12.2002
of
the
G.O.C.
-in-Chief,
Central
Command Lucknow on the appeal against
the penalty of compulsory retirement of
Sri M.Prasad. As per orders of the
G.O.C.-in-Chief the appellate authority in
the above case, the Board unanimously
resolved that Sri M. Prasad be reinstated
in service as Assistant Teacher Primary
School, Cantt. Board, Varanasi with
immediate effect.

21. The Board considered the Dte. DE,
Ministry of Defenxce, Central Command,
Lucknow letter No. PC 9878/HNP/LC 6
dated 12.12.2002 order dated 11.12.2002
of the GOC-in-Chief, Central Command
Lucknow on the appeal against the
penalty of compulsory retirement of Sri
H.N. Pathak. As per orders of the G.O.C.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
120
in Chief the appellate authority in the
above case, the Board unanimously
resolved
that
Sri
H.N.
Pathak
be
reinstated in service as Assistant Teacher
:Primary School, Cantt. Board, Varanasi
with immediate effect.

8. In view of Resolution No. 19, 20,
& 21 the Board further resolved:-

Consequent upon the reinstatement
of the above three Teachers as per the
orders of Appellate Authority, Sri Raj
Bahadur Yadav who was promoted to the
post of Assistant Teacher Junior High
School filling vacancy arising upon the
compulsory
retirement
of
Sri
G.K.
Sharma, Assistant Teacher Junior High
School be reverted to his earlier post i.e.
Assistant Teacher Primary School.

Earlier the resultant vacancies due to
the promotion of Sri Raj Bahadur Yadav
from Assistant Teacher Primary School to
Assistant Teacher Junior High School and
compulsory retirement of Sri H.N. Pathak
and Sri M. Prasad, Assistant Teachers
Primary School have been filed up
through direct recruitment working as
Assistant Teachers Primary School as
below:

Date of Appointment
1. Sri Abhijeet Kumar
 11.7.2001
2. Sri Surendra Kumar Tiwari 11.7.2001
3. Shri Ajay Yadav

 10.8.2001

The Board unanimously resolved to
terminate the services of Sri Abhijeet
Kumar, Sri Surendra Kumar Tiwari and
Sri Ajay Yadav as above in consonance
with condition no. 4 as mentioned in letter
dated 9.7.2001 in case of employees at Sl.
No. 1 and 2 and letter dated 9.8.2001 in
case of employee at Sl. No. 3.

9. The contention of the petitioner is
that a perusal of the impugned order dated
19.12.2002 and resolutions nos. 19,20 and
21 demonstrates that the respondents have
terminated the services of the petitioner
treating him to be temporary/part time
Assistant Teacher, whereas neither in the
advertisement dated 18.7.2001 inviting
applications for appointment of Assistant
teachers nor in the appointment letter
there is any whisper about the fact that the
appointment of the petitioner is on
temporary basis. It is submitted that the
reason given for termination of services of
the petitioner that the appointment of the
petitioner is liable to be terminated in
view of condition no. 4 of office letter
dated 9.8.2001 is incorrect, wrong and
illegal for the reasons (1) condition no. 4
will not apply in view of the fact that the
petitioner at no point of time has given his
willingness to accept the conditions
imposed vide letter dated 9.8.2001 and (2)
the impugned order of termination does
not disclose any reason for terminating
the services of the petitioner.

10. It is admitted to the respondents
that three vacancies of Assistant Teachers
at the Primary School were filled up
through direct recruitment pursuant to the
advertisement
dated
18.7.2001
on
probation of two years.

11. Sri Brij Bhushan Pandey,
aggrieved by the order approached this
Court by way of filing writ petition no.
30648 of 2002 which is pending and the
Court has declined to grant any interim
order.

12. In the case of Sri H.N. Pathak he
was also issued a show cause notice and
was
compulsorily
retired.
He
also
preferred an appeal under Section 14 of
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121
the CFS Rules and by order dated
11.12.2002 the GOC-in-C set aside the
order dated 17.7.2001 with a direction to
reinstate Sri H.N. Pathak. He also filed
writ petition no. 38496 of 2001 which is
said to be pending in this Court. The
directions are not statutory and are mere
executive instructions. It is internal
administrative procedure which is not
provided in rules.

13. It is worth mentioning that Sri
Uma Shanker Ram, Head Master, Junior
High School has already retired having
completed the age of superannuation on
31.7.2002 and another teacher Km. Shilpi
Ghose who was appointed alongwith
S/Sri
Surendra
Kumar
Tiwari
and
Abhijeet Kumar (who have obtained stay
orders respectively in writ petition nos.
1239 of 2003 and 7313 of 2003) has
already left the service inasmuch as she
got employment elsewhere. Thus three
posts have become vacant.

14. The four Assistant Teachers,
namely, Brij Bhushan Pandey,Abhijeet
Kumar, Surendra Kumar Tiwari and Ajay
Yadav who were selected after due
procedure and selection and are working
though kept on probation for a period of
two
years.
Before
completion
of
probationary period, as a result of
reinstatement of some teachers, their
services have been terminated.

15. The counsel for the respondents
contends that it is in this background that
the advertisement dated 18.7.2001 was
published and further it was specifically
mentioned
in
the
advertisement
as
condition no. 1 that the vacancies are
subject to change or subject to vacancies.
In the appointment letter also it was
specifically stated as condition no. 4 that
the services of the petitioner could be
terminated at any time and without any
information
and
reason
and
these
conditions were accepted by him as
mentioned in his letter dated 9.8.2001 as
well as in his joining report dated
22.8.2001.

"egksn;]

fouez fuosnu gS fd mDr i= ds vuqikyu esa izkkFkhZ
fnukad 10-08-2001 dks fo|ky; le; ls mifLFkr gksdj 650 ,-,e- dk;ZHkkj xzg.k dj fy;k gSA

vki dh lHkh 'krsZa eq>s Lohdkj gSaA

vr% lwpukFkZ Jheku~ th dh lsok esa lknj izsf"kr gSA
izkFkhZ
g0 lat; ;kno
22-08-2001"

16. He further submits that the four
teachers were aware of the facts when
they joined service in pursuance of the
advertisement and selection that they have
been appointed due to resultant vacancies
of four compulsory retired teachers
against whom disciplinary proceedings
were taken. As a result of appeals of the
four compulsorily retired teachers having
been allowed by GOC-in-C, the services
of the newly recruited teachers will
automatically be terminated. It is also
submitted that the Cantonment Executive
Officer was required to obtain permission
of the Directorate, Central Command,
Lucknow
before
making
four
appointments but no such permission was
at all obtained before appointing four
teachers. The Director General, Defence
Estates, Government of India, Ministry of
Defence, R.K. Puram, New Delhi issued
letter no. 9/5/c/DE/88-89 dated 3rd July,
1989 to all the Directors, D.E. intimating
them that no post should be filled without
prior approval. In the same way, the
Principal
Director,
Defence
Estates,
Central Command, Lucknow sent letter
no. 82562/Rulings/LC6 dated 5th January
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
122
1998 to all the Cantt. Executive Officers
in the Central Command including
Varanasi to the effect that prior clearance
from the Directorate for filling up the
vacancies
should
be
obtained.
The
Principal Director again repeated the
same
circular
through
letter
no.
17838/XVI/LC6 dated 22nd October, 2001
to the effect that no vacant post whether
direct recruit or promotion post will be
filled up without prior approval of the
Directorate, Central Command.
It is submitted that since

(1) The petitioner was probationer and
as such his services could have been
terminated at any point of time
during probation.

(2) The petitioner had accepted the
conditions contained in the letter of
appointment
dated
9.8.2001.
According to condition no. 4 read
with rule 8 of the CFS Rules his
services could be terminated at any
point of time.

(3) Since the GOC -in-C had allowed
the appeal of some of the teachers
(who are not connected with the
dispute) it became necessary to
terminate the services of the newly
appointed teachers.

17. He submits that the action of
terminating the services of the newly
recruited teachers cannot be challenged in
the changed circumstances particularly
when they were only probationers and had
no right to hold the post. Even if his work
was
not
unsatisfactory
there
is
justification to accept the contention of
the respondents that the services of the
petitioner could not be continued.

18. The counsel for the petitioner
submitted that neither the advertisement
nor the appointment letter bears any such
condition that the petitioner is being
appointed in place of certain teacher
against whom disciplinary proceedings
are pending. From the perusal of the
notice inviting applications and from the
conditions of the appointing letter it is
evidently clear that the candidates who
had applied for the post of Assistant
Teacher were given to understand that the
post was temporary and their services
could be terminated in case the appeals of
certain
teachers
are
allowed.
The
petitioner was not appointed against the
post of a particular teacher who had been
compulsory retired in pursuance of the
resolution of the Cantt. Board hence the
termination is not invalid.

19. Sri Dube has insisted on
following conditions contained in the
appointment letter-
(1) on
his
work
being
found
unsatisfactory
(2) for any other reason without any
prior notice and without giving any reason

20. It is true that the petitioner is
probationer and due to unforeseen event
his services can be terminated. But there
is other side also. Admittedly the services
of the petitioner are not unsatisfactory. He
has not come from back door and is
qualified. He came with legitimate
expectation to service in employment of
the Board. As stated above 3 posts are
available for such employees. It is,
therefore, just and proper that the
petitioner be absorbed against the posts
which are available or which may become
available in near future say one year.
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1 All] Ajay Yadav V. Cantonment Board and another
123
21. For the reasons stated above the
writ petition is disposed of with the above
directions. The respondent Board is
directed to reconsider the matter in the
above light. No order as to costs. This
judgment will also decide the connected
writ petition nos. 1239 of 2003, Abhijeet
Kumar vs. Cantt. Board and another and
7313 of 2003,Surendra Kumar vs. Cantt.
Board and another.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 691 of 1988

State of U.P. and others
 ...Petitioner
Versus
Uttar
Pradesh
Madhyamik
Shiksha
Parishad and others
...Opposite Party

Counsel for the Petitioner:
S.C.
Counsel for the Respondents:
Sri Banarsi Das

Constitution
of
India-Article
226
Regularisation
Service Law-daily wager-regularisationhave to face a regular selection in
accordance with the rules they cannot be
regularized without selection, non can
get regular pay scale

Held- Para 43

For getting regular appointment and
regular pay scale respondents 2 to 34
have to face a regular selection in
accordance with the rules and they
cannot be regularised without such
selection in accordance with the rules,
nor can they get the regular pay scale.

Constitution
of
India-Article
141Precedent-Binding-effect
Mere direction of the Supreme Court to
regularize an employee without laying
down any principle of law, held no
binding precedent.

Held- Para 44

No doubt in certain decisions the Courts
have given direction for regularising
daily
wagers
or
casual/temporary
employees but in our opinion such
directions do not amount to a precedent
vide
Indian
Council
of
Agricultural
Research vs. Raja Balwant Singh College,
2003(1) ESC 424, Delhi Administration
vs. Manoharlal, AIR 2002 SC 3088, etc.
What is a binding precedent is a principle
of law which has been laid down in a
decision of the Court, and a mere
direction
without
laying
down
any
principle of law is not a precedent. A
case is an authority for what it actually
decides vide Goodyear India Ltd. vs.
State of Haryana, AIR 1990 SC 781,
Sreenivasa General Traders vs. State of
A.P., AIR 1983 SC 1246 (para 29), Union
of India vs. Dhanwanti Devi, (1996) 6
SCC 44 (paragraphs 9 and 10), M/s Amar
Nath Om Prakash vs. State of Punjab and
others, AIR 1985 SC 218, etc. Everything
in a decision is not a precedent vide
State of Punjab vs. Baldeo Singh 1999
SCC (Crl) 1080.

Constitution of India-Article 39 (d)
Respondents-appointed when there was
heavier load of work e.g. during the
examination time, without undergoing
any selection in accordance with the
rules-cannot claim party in pay scale
with the regularly selected employees.

Held- Para 46

The regular clerks were appointed after
facing a selection which was held after
advertising the posts and after following
the rules. The daily wagers were not
appointed in that manner at all. In fact
the respondents appear to be purely ad