# Sanjay Kumar Singh & Ors v. District Basic Education Officer, Jaunpur & Ors

- **Citation:** (2024) 5 ILRA 530
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Writ A No. 23843 of 2018
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-singh-ors-v-district-basic-education-officer-jaunpur-ors-52139
- **Pages:** 13

## Headnote

A. Service Law - Appointment - Post of
Assistant Teacher - Selection was made
after
obtaining
prior
approval
and
appointment was also accorded approval -
Salary was stopped - Validity challenged -
Neither approval was ever recalled nor the
petitioner
was
ever
suspended
or
terminated - No material to proof collusion
with St. authorities in any manipulation
was produced - Effect - Held, the
appointment of the petitioners cannot be
said to be illegal as after due selection
interviews were made in presence of the
nominee of the District Basic Education
Officer. Thereafter, approval was granted
on 21.8.2003 after duly being satisfied by
the District Basic Education Officer - The
salary
of
the
petitioners
cannot
be
withheld or stopped unless petitioners are
suspended or dismissed from service -
High Court issued mandamus to pay
arrears of salary and allow all the
consequential benefits. (Para 19, 26, 31, 32
and 46)
Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,829 of 43,731. This is a partial read: ask again with offset=39829 for what follows._

530 INDIAN LAW REPORTS ALLAHABAD SERIES
Lucknow through the Civil Judge (Senior
Division), Lucknow by the Registrar
(Compliance).
----------
(2024) 5 ILRA 530
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Writ A No. 23843 of 2018

Sanjay Kumar Singh & Ors. ...Petitioner
Versus
District Basic Education Officer, Jaunpur &
Ors. ...Respondents

Counsel for the Petitioner:
Adarsh Singh, Indra Raj Singh

Counsel for the Respondents:
Abhishek Srivastava, C.S.C., Mrigraj Singh

A. Service Law - Appointment - Post of
Assistant Teacher - Selection was made
after
obtaining
prior
approval
and
appointment was also accorded approval -
Salary was stopped - Validity challenged -
Neither approval was ever recalled nor the
petitioner
was
ever
suspended
or
terminated - No material to proof collusion
with St. authorities in any manipulation
was produced - Effect - Held, the
appointment of the petitioners cannot be
said to be illegal as after due selection
interviews were made in presence of the
nominee of the District Basic Education
Officer. Thereafter, approval was granted
on 21.8.2003 after duly being satisfied by
the District Basic Education Officer - The
salary
of
the
petitioners
cannot
be
withheld or stopped unless petitioners are
suspended or dismissed from service -
High Court issued mandamus to pay
arrears of salary and allow all the
consequential benefits. (Para 19, 26, 31, 32
and 46)
Writ petition allowed. (E-1)

List of Cases cited:

1. Radhey Shyam Yadav Vs St. of U.P. & ors.;
2024 AIR (SC) 260

2. Civil Appeal No. 3904 of 2013; Nahar Singh &
ors. Vs St. of U.P. & ors. decided on 14.07.2017

3. Special Leave Petition (Civil) Diary No. 7348 of
2024; Basic Shiksha Adhikari, District Basti & anr.
Vs Uday Pratap Singh & ors. decided on
16.04.2024

4. Special Appeal (Defective) No. 870 of 2023;
Basic Shiksha Adhikari, District Basti & anr. Vs
Uday Pratap Singh & ors. decided on 19.01.2024

5. Civil Appeal Nos. 7634-7635 of 2022; Professor
(Dr.) Srejith P.S. Vs Dr. Rajasree M.S. & ors.
decided on 21.10.2022

6. St. of Odisha & ors. Vs Sulekh Chandra
Pradhan etc.; 2022 LiveLaw ( SC) 393

7. Misc. Application Diary No. 4303/2024; Devesh
Sharma Vs U.O.I.decided on 08.04.2024

8. Special Appeal (Devective) No. 890 of 2023;
St. of U.P. & ors. Vs Ram Avtar Singh & ors.
decided on 09.01.2024

9. Civil Appeal No. .. of 2024 (Arising out of SLP
(C) Nos. 22241-42 of 2016; Vinod Kumar & ors.
Vs U.O.I.decided on 30.01.2024

10. Sandeep Kumar Vs G.B. Pant Institute of
Engineering and Technology, Ghurdauri; 2024 0
Supreme (SC) 346

11. C/M Dadaur Inter College, Dadaur, Rae
Bareilly Vs District Inspector of Schools, Rae
Bareily & ors.; 1985 UPLBEC 1378

(Delivered by Hon'ble Piyush Agrawal, J.)

1. Heard Sri Adarsh Singh, learned
counsel for he petitioners and Sri Abhishek
Srivastava, learned Chief standing counsel
for the State-respondents.
5 All. Sanjay Kumar Singh & Ors. Vs. District Basic Education Officer, Jaunpur & Ors.
531

2. By means of the present writ
petition, the petitioners have prayed to issue
a writ, order or direction in the natue of
mandamus commanding the respondent
no.1- District Basic Education Officer,
Jaunpur to grant salary to the petitioners on
the posts of Assistant Teachers in the
institution namely, Keshav Nath Senior
Basic
School,
Horaiya,
Ram
Nagar
Vidhmauwa, Jaunpur along with arrears,
within stipulated time as may be fixed by
Hon'ble Court as well as permit them to
work.

3. Counsel for the petitioners
submits that on 25.5.2003 Authorised
Controller was appointed in the Institution
in question. Thereafter permissioin was
sought for apppointment of four Assistant
Teachers by the Athorised Controller vide
letter dated 28.7.2003. The approval was
accorded by the District Basic Education
Officer, Jaunpur on 29.7.2003. Thereafter
advertisement with regard to appointment of
Assistant Teachers was published in the
newspaper in which interview was fixed for
14.8.2003.

4. The petitioners being duly
qualified and eligible applied for the posts.
The Selection Committee including the
nominee of the District Basic Education
Officer, Jaunpur conducted the interview.
After conclusion of the interview, the
petitioners were found most suitable
candidates amongst all the candidates and
their names were recommended by the
Selecton Committee.

5. On 15.8.2003 the Authorised
Controller of the Institution forwarded all
the requisite papers pertaining to selection
of the petitioners on the posts of Assistant
Teacher to the District Basic Education
Officer, Jaunpur for approval. On 21.8.2003
the District Basic Education Officer,
Jaunpur
after
verifying
the
requisite
documents and after duly satisfied accorded
approval for selection of the petitioners on
the post of Assistant Teachers. Thereafter
the petitioners joined on the post of
Assistant Teachers in the Institution in
question and were discharging their duties
diligently. Salary was paid to the petitioners
by the Finance and Accounts Officer in the
office of the District Basic Education
Officer, Jaunpur.

6. He further submits that one Bachai
Singh has filed Civil Misc. Writ Petition No.
4888 of 2007 before this Court and by order
dated 31.1.2007 payment of salary to the
petitioners was stayed. By order dated
11.4.2018 the said writ petition was
dismissed and the interim order stood
vacated.

7. He further submits that some
enquiry was made behind the back of the
petitioners but neither any disciplinary
proceedings were initiated nor suspension
order was passed nor services of the
petitioners were terminated till date nor
approval granted by the District Basic
Education Officer, Jaunpur on 21.8.2003
was recalled.

8. He further submits that in
pursucance of the ex parte report of the year
2008, first information reports had been
lodged against the petitoners and charge
sheet had been submitted to which
application under section 482 Cr. P.C. had
been filed in which interim order had been
passed.

9. He further submits that for
approval of appointment of the petitioners as
Assistant Teachers papers were forwarded
by the Authorised Controller and on his
532 INDIAN LAW REPORTS ALLAHABAD SERIES
application approval was granted by the
District Basic Education Officer, Jaunpur,
who happens to be State Authorities. He
further submits that apart from bare
allegation absolutely no material is on
record to show how the petitioners had
colluded for any manipulation, therefore, the
petitioners should not be penalised for none
of their fault.

10. In support of his submissions
counsel for the petitones relied upon the
judgments of the Apex Court in A(i)
Radhey Shyam Yadav vs. State of U.P.
And others (2024 AIR (SC) 260; (ii) Civil
Appeal No. 3904 of 2013 ( Nahar Singh
and othrs vs. State of U.P. And others)
decided on 14.7.2017; (iii)Special Leave
Petition (Civil) Diary No. 7348 of 2024
(Basic Shiksha Adhikari, District Basti
and another vs. Uday Pratap Singh and
others) decided on 16.4.2024; (B)Division
Bench judgment of this Court in Special
Appeal (Defective) No. 870 of 2023 (Basic
Shiksha Adhikari, District Basti and
another vs. Uday Pratap Singh and
others) decided on 19.1.2024.

11. Per contra, learned Chief
Standing counsel submits that while making
appointment of the petitioners, provisions of
the Act and Rules have not been complied
with. He specifically referes to Rules, 4,5,
and 7 of the Uttar Pradesh recognized Basic
Schools (Junior High Schools) (Recruitment
and conditions of Service of Teachers)
Rules, 1978. He further submits that in
absence
of
compliance
of
specific
provisions
the
appointment
of
the
petitioners are illegal as well as bad in law,
therefore, the salary of the petitioners have
rightly been stopped.

12. He futher submits that in
pursuance of the order dated 31.1.2007 of
this Court an enquiry was conducted and
enquiry report was prepared on 24.3.2008, a
copy of which has been filed along with the
counter affidavit. He futher submits that in
the said enquiry various defects/deficiencies
in the process of appointment of the
petitoners were found. The advertisements
were not made in two news papers as well as
required details were also not mentioned in
it. He further submits that the petitioners do
not have the requisite qualifications to be
appointed as Assistant Teachers, therefore,
the appointment is void ab initio.

13. He further submits that in
pursuance of the enquiry report dated
24.3.2008 first information report was
lodged in which charge sheet has been
submitted and congnizance has been taken
by the officer concerned.

14. In support of his contention he
has relied upon the judgments of the Apex
Court in (A) (i) Civil Appeal Nos. 76347635 of 2022 (Professor (Dr.) Srejith P.S.
vs. Dr.Rajasree M.S. And others) decided
on 21.10.2022,; (ii) State of Odisha and
others vs. Sulekh Chandra Pradhan etc.
(2022 LiveLaw( SC) 393); (iii) Devesh
Sharma vs. Union of India (Misc.
Application (Diary No. 4303/2024 decided
on 8.4.2024; (B) Division Bench Judgment
of this Court in Special Appeal (Devective)
No. 890 of 2023 (State of U.P. And others
vs. Ram Avtar Singh and others) decided
on 9.1.2024.

15. Rebutting the submission of the
learned Chief Standing Counsel, counsel for
the petitoners submits that the appointments
of the petitioners cannot be said to be illegal.
He further submits assuming without
admitting for the sake of argument that the
appointment of the petitioners can be said to
be irregular only. He further submits that in
5 All. Sanjay Kumar Singh & Ors. Vs. District Basic Education Officer, Jaunpur & Ors.
533
pursuance of ex parte enquiry report dated
24.3.2008 only first informaton report has
been lodged against the petitioners as they
are beneficiary but no action against the
erring officer has been brought on record. In
support of his submission he has relied upon
the judgment of the Apex Court in Civil
Appeal No. .. of 2024 (Arising out of SLP
(C) Nos. 22241-42 of 2016) (Vinod Kumar
and others vs. Union of India) decided on
30.1.2024.

16. He further submits that it is not
in dispute that neither the petitoners were
suspended nor charge sheets were issued to
them, nor the petitoners' services have been
terminated. In support of his submission he
has relied upon the recent judgment of the
Apex Court in Sandeep Kumar vs. G.B.
Pant
Institute
of
Engineering
and
Technology, Ghurdauri (2024 0 Supreme
(SC) 346. He further submits that the Apex
Court has held that if the procedure
prescribed under the Rules has not been
complied with the services of the petitioners
cannot be terminated. He prays that a writ of
mandamus be issued to the respondents for
payment of salary to the petitoners regularly.

17. After hearing the learned
counsel for the parties, the Court has
perused the record.

18. It is not in dispute that in the
Institution in question the Authorised
Controller was appointed by the District
Basic Education Officer who sought
permission for filling up the vacancies of the
Assistant Teachers. After due approval on
29.7.2003 by the District Basic Education
Officer the advertisement was issued. The
selection was held in presence of the
nominee of the District Basic Education
Officer. After concluding the interview
selected names of the candidates were
forwarded by the authorised controller for
approval by the District Basic Education
Officer. It is also not in dispute that by order
dated
21.8.2003
the
District
Basic
Education Officer after verification of the
requisite documents and after duly satisfied
granted approval for selection of the
petitioners on the post of Assistant Teachers.
Thereafter the petitioners joined their duties
and payment of salary was also made to
them. But payment of salary was stopped in
pursuance of order dated 31.1.2007 passed
in Writ Petition No. 4888 of 2007. On
11.4.2018 the said writ petition was
dismissed and stay order stook vacated.

19. It is a matter of record that an
enquiry was instituted in pursuance of the
order dated 31.1.2007 passed by this Court
in public interest litigation in which a report
was prepared on 24.3.2008. In pursuance
thereof the only action was taken against the
petitioners by way of stopping their salary
and were restrained from discharging their
duties but nothing has been brought on
record that after the report was prepared in
the year 2008 any notice was issued to the
petitioners. It is also not in dispute that no
material have been brought on record on
behalf of the State to show that either the
petitioners were suspended from services or
charge sheets were issued to them or
services of the petitioners were terminated.
Further the respondents have not brought on
record any material to show that the
approval granted on 21.8.2003 by the
District
Basic
Education
Officer
for
appointment of the petitoners on the post of
Assistant Teachers has been recalled.

20. Further it is not in dispute that
after the report dated 24.3.2008 alleging that
the petitioners were in collusion with the
State Authorities but no departmental action
has been taken agianst the erring officers of
534 INDIAN LAW REPORTS ALLAHABAD SERIES
the State. No material has been broght on
record to show that any action has been
taken against the erring officers except filing
of first information report against the
petitioners. The affidavits filed by the
respondents, not a single word has been
whispered about the same. Further in-turn
the respondent authorities gave a safe
passage
to
the
erring
officers
to
superannuate. Even after retirement no
acton has been taken against the erring
officers within the stipulated time povided
in the Service Rules. The conduct of the
respondent authorities shows that the
petitioners are only made scape goat leaving
aside the role of the erring officers.

21. On the aforementioned facts the
Court proceeds to examine the arguments
raised as well as judgments relied upon by
the counsels.

22. The record of the case in hand
shows that there is only bald allegation
about colluding of the petitioners with the
State Authorities but no material has been
brought on record.

23. The Apex Court in the judgment
of Radhey Shyam Yadav (supra) has held
in the relevant pagraph nos. 5, 6, 8, 10, 14,
15, 33 and 34 as follows:

5. Thereafter, responding to the
letter of the School, the District Basic
Education Officer by his letter of
20.11.1998 accorded permission to issue
advertisement for appointment of three
posts
of
Assistant
Teachers.
On
25.11.1998, an advertisement was issued.
The School, thereafter, on 08.12.1998,
wrote a letter to the District Basic
Education Officer to nominate a Member
for the selection of the teachers.
 In response, the District Basic
Education Officer nominated the Assistant
District
Basic
Education
Officer,
Bahorikpur as a Member of the Selection
Committee. The Selection Committee duly
met
and
considered
the
twelve
applications received by it. Seven out of
the twelve applicants, including the three
appellants herein, participated in the
interview.
 By its letter of 27.12.1998, the
Selection Committee informed the District
Basic
Education
Officer
that
the
appellants, on basis of their ability, have
been selected and their case was being
submitted for approval. The order in
which the Selection Committee has sent
subjectwise names were as follows:

i. Lal Chandra Kharwar -
Science and Math

ii. Radhey Shyam Yadav -
English

iii. Ravindra Nath Yadav - Agric
& Gen.Topic

It is not disputed that by an order
of
09.06.1999,
the
District
Basic
Education Officer granted approval for
the appointment of the appellants. As
stated earlier, they were appointed on
25.06.1999
and
were
working
continuously.

6. The undisputed case is that
from October, 2005, their salaries were
stopped from being disbursed, forcing them
to file Writ Petitions in the High Court,
namely, Civil Misc. Writ Petition No. 10286
of 2007 and Civil Misc. Writ Petition No.
18641 of 2008. The three appellants, in all,
filed two writ petitions. In the writ petitions,
the prayer was for a writ of mandamus
commanding the respondents to pay the
arrears of salary from July, 1999 to
January, 2002 and continue to pay salary
from October, 2005. It was their case that
5 All. Sanjay Kumar Singh & Ors. Vs. District Basic Education Officer, Jaunpur & Ors.
535
from the date of appointment till January
2002, their salary had not been released.

8. Apart
from
this
bare
allegation, absolutely no material was
placed on record to show how the
appellants
had
colluded
or
were
blameworthy for any manipulation.

10. The Learned Single Judge, by
order dated 10.09.2013, held that if based
on the forged order, proceedings were
initiated for the selection of Assistant
Teacher, then the entire selection needs to
be cancelled. It was also held that since
forgery was committed by the persons
involved in the selection of Assistant
Teachers and since the selection process
was not fair, being based on a forged letter,
the candidates who were selected in the
selection process are not entitled to be
appointed and retained on the post of
Assistant Teacher, and holding so, the writ
petitions were dismissed. The appellants
filed writ appeals. By the impugned order,
the appeals were dismissed reiterating the
findings of the learned Singe Judge.

14. We have given our thoughtful
consideration to the matter and considered
the submissions of the rival parties and
perused the records. The correspondence
between the School and the Directorate of
Education culminated in the order of
26.12.1997. There is a dispute about the
number of posts that were sanctioned.
According to the State, two posts were, in
fact, sanctioned and it was the School that
manipulated it, to make it three. We will
proceed on the basis that the version of the
State is correct.

The
nominee
of
the
State
participated in the selection process. Twelve
candidates had applied and ultimately three
appellants were empanelled for selection.
Due approval was given for the appointment
and admittedly they discharged their duties
on
their
post
from
25.06.1999
till
September, 2005. Even according to the
State, admittedly, till date there is no order
terminating their services. What impelled
the appellants to go to the High Court was
the stoppage of their salary.

15. There is not an iota of
material
to
demonstrate
how
the
appellants, who were applicants from the
open market, were guilty of colluding in the
manipulation.

33. This
judgment
in
Sachin
Kumar (supra) is clearly distinguishable
from the case at hand. First of all, Sachin
Kumar (supra) involved the cancellation of
the
selection
process
before
any
appointments were made. No rights were
crystallized to any of the candidates. The
issue was about the validity of the
cancellation of the selection process. Sachin
Kumar (supra) falls in that genre of cases
concerning validity of cancellation of the
selection
process
due
to
largescale
irregularities. The Case at hand is
proximate to the facts and ratio in Suresh
Raghunath Bhokare (supra) and cases of
that ilk set out hereinabove.

34. We feel that the appellants
were not at fault and the State could not
have abruptly stopped their salaries.
Accordingly, we set aside the judgments of
the High Court dated 15.09.2021 in Special
Appeal Nos. 1435/2013 and 1445/2013 and
direct that the State shall pay the salaries
of the appellants for the period from
25.06.1999 till January, 2002 in full. We
also direct that insofar as the period from
October 2005 till today is concerned, the
State shall pay the appellants 50% of the
backwages. Since the appointment order
and the approval order are still in force, we
declare that the appellants have always
been and are deemed to be in service. Apart
from 50% backwages, as ordered above, we
direct that all consequential benefits,
includig seniority, notional promotion, if
536 INDIAN LAW REPORTS ALLAHABAD SERIES
any, and fitment of salary and other service
benefits due, be granted to the appellants.
We direct the State to comply with these
directons within four weeks from today. We
also direct tht the appellants be allowed to
commence work within the said period of
four weeks." (Emphasis supplied)

24. The record further reveals that
State Authorities took a conscious decsion
after being satisfied, accorded approval for
selection of petitioners vide order dated
21.8.2003 on the posts of Assistant Teacher.

25. The Apex Court in the case of
Md. Zamil Ahmad (supra) has held in the
relevant paragraph nos. 15, 19, 21 and 22as
follows:

Firstly, the appellant and wife of
the deceased at the time of seeking
compassionate appointment did not conceal
any fact and nor filed any false or incorrect
document/declaration. On the other hand,
both of them disclosed their true family
relations and conditions prevailing in the
deceased family on affidavit.

19) In the light of aforementioned
reasons, which rightly persuaded the State
to grant compassionate appointment to the
appellant, we do not find any justification on
the part of the State to dig out the appellant's
case after 15 years of his appointment and
terminate his services on the ground that as
per the State policy, the appellant did not
fall within the definition of the expression
"dependent
of
deceased"
to
claim
compassionate appointment.

21) In our considered view, the
aforesaid facts would clearly show that it
was a conscious decision taken by the State
for giving an appointment to the appellant
for the benefit of the family members of the
deceased
who
were
facing
financial
hardship due to sudden demise of their
bread earner. The appellant being the only
close relative of the deceased could be given
the appointment in the circumstances
prevailing in the family. In our view, it was
a right decision taken by the State as a
welfare state to help the family of the
deceased at the time of need of the family.

22) In these circumstances, we are
of the view that there was no justification on
the part of the State to woke up after the
lapse of 15 years and terminate the services
of the appellant on such ground. In any
case, we are of the view that whether it was
a conscious decision of the State to give
appointment to the appellant as we have
held above or a case of mistake on the part
of the State in giving appointment to the
appellant which now as per the State was
contrary to the policy as held by the learned
Single Judge, the State by their own
conduct having condoned their lapse due to
passage of time of 15 years, it was too late
on the part of the State to have raised such
ground for cancelling the appellant's
appointment and terminating his services.
It was more so because the appellant was
not responsible for making any false
declaration and nor he suppressed any
material fact for securing the appointment.
The State was, therefore, not entitled to take
advantage of their own mistake if they felt it
to be so. The position would have been
different if the appellant had committed
some kind of fraud or manipulation or
suppression of material fact for securing the
appointment. As mentioned above such was
not the case of the State.
(Emphasis supplied)

26. The appointment of the
petitoners cannot be said to be illegal as after
due selection interviews were made in
presence of the nominee of the District Basic
Education Officer. Thereafter on 21.8.2003
approval was granted after duly being
5 All. Sanjay Kumar Singh & Ors. Vs. District Basic Education Officer, Jaunpur & Ors.
537
satisfied by the District Basic Education
Officer.

27. The Apex Court in the case of
Vinod Kumar (supra) has held in the
relevant paragraph nos. 7 and 8 as follows:

7. The judgement in the case Uma
Devi (supra) also distinguished between
"irregular" and "illegal" appointments
underscoring
the
importance
of
considering certain appointments even if
were not made strictly in accordance with
the prescribed Rules and Procedure,
cannot be said to have been made illegally
if they had followed the procedures of
regular appointments such as conduct of
written examinations or interviews as in
the present case.

8. In light of the reasons recorded
above, this Court finds merit in the
appellants' arguments and holds that their
service conditions, as evolved over time,
warrant a reclassification from temporary
to regular status. The failure to SLP(C)
Nos.22241-42 OF 2016 Page 9 of 9
recognize the substantive nature of their
roles and their continuous service akin to
permanent employees runs counter to the
principles of equity, fairness, and the intent
behind employment regulations. (Emphasis
supplied)

28. The appointment cannot be
disturbed on the ground of lack of
qualification as held by the Apex Court in
Nahar Singh (supra) in relevant paragraph
nos. 2 and 3 as follows:

 Having regard to the fact that the
petitioners have been in service for a long
period we are of the view that their
appointments ought not to be disturbed only
on
the
ground
of
allged
lack
of
qualification which is contested by the
petitioners. (Emphasis supplied)

Accordingly, the special leave
petitions are disposed of by directing that
the services of the petitoners be not
disturbed on the above grounds.

29. It is not the case of the respondents
that
any
misrepresentation
or
fraud
committed by the petitioners in getting their
appointments as held by the Division Bench
of this Court in the case of Uday Pratap
Singh (supra) in relevant paragraph no. 10,
which is quoted below:

10. Facts as have been noticed
above are not in issue. It remains undisputed
that respondent claimed compassionate
appointment in the year 2000 and was
offered such appointment in 2003. The
father of the respondent had clearly given an
affidavit wherein it was mentioned that he
was employed in the Education Department
of the State. From such material it can
clearly be deduced that the factum of the
father
of
the
respondent
being
in
Government Service was a fact clearly made
known to the authorities and it can therefore
not be asserted by the appellant that there
was any fraud or misrepresentation made
on part of the respondent. (Emphasis
supplied)

30. Against the said order in Uday
Pratap Singh (supra) the State went in
appeal before the Apex Court, which has
been dismissed on 16.4.2024.

31. In view of the judgments referred
hereinabove, the respondents have failed to
bring on record any material as to how the
petitioners have been colluded with the State
Authorites in any manipulation. Further the
approval
was
granted
by
the
State
Authorities has not yet been withdrawn. It is
538 INDIAN LAW REPORTS ALLAHABAD SERIES
also not in dispute that the petitioners were
interviewed in the presence of the nominee
of the State Authorities and thereafter State
Authorities approved their appointments as
Assistant Teacher as well as the said
approval dated 21.8.2003 has not been
withdrawn.

32. The salary of the petitioners cannot
be withheld or stopped unless petitioners are
suspended or dismissed from service. The
Division Bench of this Court in the case of
Committee of Management of Dadaur
Inter College, Dadaur, Rae Bareilly vs.
District Inspector of Schools, Rae Bareily
and others (1985 UPLBEC 1378) has held
in the relevant paragraph no. 6 as follows:

6.
We
have
examined
the
arguments of Mr. B. C. Saxena and we find
no merit in his contention. Given the fact
that opposite-parties 3 to 8 are abscond- ing
from duty and are not attending the teaching
job, it is open to the petitioners to initiate
disciplinary proceedings against them.
Regulation No. 36 of the Regulations framed
under the Act lays down the procedure for
initiating disciplinasy proceedings against
the teachers. If opposite-parties Nos. 3 to 8
were absconding and were guilty of
insubordination and they neglected the
discharge of their duties, they could be
suspended and proceeded with depart-
mentally but unless opposite-parties 3 to 8
are dismissed or they are suspended, their
salary cannot be withheld. Unless the said
teachers are dismissed there would no
vacancy to justify the making of fresh
appointments. If the delinquent teacher is
suspended, he will be entitled to subsistence
allowance and will not be entitled to full
salary. Unless the delinquent teachers are
suspended or are dismissed from service,
the payment of salary to them cannot be
withheld.
Mr.
Saxena
made
an
impassioned appeal that the teachers who
were not co-operating with the working of
the institution should not be allowed
payment of salary as that would result in
spoiling the discipline of the institution. In
our opinion, this contention is not tenable.
The difficulty in the way of the petitioner is
that the teachers againt whom charges are
levelled are still holding their appointment
in
the
institution.
No
departmental
proceedings have so far been taken against
them. Their appointment has neither been
terminated nor have they been suspended.
In view of these facts it cannot be said that
opposite-parties Nos. 3 to 8 are not entitled
to salary payable to them. As long as they
are teachers in the institution and their
appointment subsists, they are entitled to
their salary . If the said teachers misbehave
or do not discharge their duties properly, it
is always open to the Management of the
College to suspend such teachers or dismiss
them from service after departmental
inquiry. Unless this is done there is no basis
on which payment of salary to the said
teachers
can
be
refused.
We
are,
accordingly of the view that writ petition No.
1585 has no merit and deserves to be
dismissed. (Emphasis supplied)

33. The respondents have not
brought on record any material to show as to
whether in pursuance of the report dated
24.3.2008 any disciplinary inquiry was
initiated against the petitoners or the
petitioners were put to notice or were
suspended or any termination order was
passed against them. Even the respondents
have not taken any action agianst the erring
officers except filing of first information
report against the petitioners. Record also
shows that the respondents, till date, have
not recalled the order granting approval by
the District Basic Education Officer for the
appointments of the petitioners.
5 All. Sanjay Kumar Singh & Ors. Vs. District Basic Education Officer, Jaunpur & Ors.
539
34. The Apex Court in Sandeep
Kumar (supra) has held in relevant
paragraph no. 19, which reads as under:

19. In this background, we are of
the firm view that the termination of the
services of the appellant without holding
disciplinary enquiry was totally unjustified
and dehors the requirements of law and in
gross violation of principles of natural
justice. Hence, the learned Division Bench
of the High Court fell in grave error in
dismissing the writ petition filed by the
appellant on the hypertechnical ground
that the minutes of 26th meeting of the
Board of Governors dated 16th June, 2018
had not been placed on record. (Emphasis
supplied)

35. Learned Chief Standing
Counsel has vehemently argues that while
appointing the petitioners Rules 4,5, and 7
of the Rules 1978 have not been complied
with. In support of his submissions he
placed reliance to paragraph nos. 32 and 35
of the judgment of the Apex Court in Sulekh
Chandra Pradhan (supra) which is quoted
below:

 32. It is not in dispute that the
appointment
of
all
the
applicants/respondents/teachers have been
made directly by the respective Management
without
following
the
procedure
as
prescribed under the Rules/Statute. It is a
trite law that the appointments made in
contravention
of
the
statutory
provisions are void ab initio. Reference in
this respect could be made to the judgments
of this Court in the cases of Ayurvidya
Prasarak Mandal and another vs. Geeta
Bhaskar Pendse (Mrs) and others1, J & K
Public Service Commission and others vs.
Dr. Narinder Mohan and others2, Official
Liquidator vs. Dayanand and others3,
and Union of India and another vs.
Raghuwar Pal Singh.
 35. The impugned order passed by
the High Court depicts total nonapplication
of mind. Whereas the cause title would itself
show that a Writ Petition (Civil) No.6557 of
2018 is disposed of by the impugned
judgment, the High Court observed that the
order dated 18 th May, 2017, passed by the
Tribunal in O.A. No.2266 of 2015, has not
been challenged by the State. Whereas the
teachers have hardly worked for four years
and a substantial part thereof on account of
interim orders passed by the High Court, the
High Court goes on to 5 (1997) 2 SCC
635 observe that the teachers have worked
for a period of more than 20 years. No
reasons, leave aside sound reasons, are
reflected in the impugned order while
dismissing the writ petitions filed by the
State.

36. In the case cited above by the
State, the appointment was made by the
Management Committee of the School in
the year 1988 and after the Government
Order was issued the services of the
candidates were terminated. Thereafter they
approached the High Court in which interim
order was passed permitting them to
continue in service as in interim protection
but in the case in hand the approval was
sought by the State Authority as Authority
Controller, approval was granted by the
State Authorites i.e. the District Basic
Education Officer and after adopting due
process of selection in the presence of the
nominee of the District Basic Education
Officer the selection has been undertaken.
After completing the selection process the
Authorised Controller ( appointed by the
State Authority) forwarded the names of the
selected candidates to the District Basic
Education Officer for its approval for
appointment. By the order dated 21.8.2003
540 INDIAN LAW REPORTS ALLAHABAD SERIES
the approval was accorded, therefore, the the
case referred to above is entirely different in
the facts and circumstances of the present
case and will not give any aid to the
respondents.

37. Learned Chief Standing Cunsel
has further referred to paragraph nos. 8 and
9 in (Professor (Dr.) Srejith P.S (supra)
which reads as under:

38. 8.10 At this stage, it is required
to be noted that even as per Section 13(4) of
the University Act, 2015, the Committee
shall recommend unanimously a panel of
not less than three suitable persons from
amongst the eminent persons in the field of
engineering sciences, which shall be placed
before the Visitor/Chancellor. In the present
case,
admittedly
the
only
name
of
respondent No. 1 was recommended to the
Chancellor. As per the UGC Regulations
also, the Visitor/Chancellor shall appoint
the Vice Chancellor out of the panel of
names
recommended
by
the
Search
Committee. Therefore, when only one name
was recommended and the panel of names
was not recommended, the Chancellor had
no option to consider the names of the other
candidates. Therefore, the appointment of
the respondent No. 1 can be said to be
dehors and/or contrary to the provisions of
the UGC Regulations as well as even to
the University Act, 2015. Therefore, the
appointment of respondent No. 1 on the
basis of the recommendations made by the
Search committee, which was not a duly
constituted Search Committee as per the
UGC Regulations and when only one name
was recommended in spite of panel of
suitable candidates (3-5 suitable persons as
required
under Section
13(4) of
the
University Act, 2015), the appointment of
respondent No. 1 can be said to be illegal
and void ab initio, and, therefore, the writ of
quo warranto was required to be issued.

39. In view of the above and for the
reasons stated above, the present appeals
succeed. The impugned judgment(s) and
order(s) passed by the Division Bench of
the High Court as well as that of the
learned Single Judge dismissing the writ
petition and refusing to issue the writ of
quo warranto declaring the appointment
of respondent No. 1 as Vice Chancellor
of the APJ Abdul Kalam Technological
University, Thiruvananthapuram as bad
in law and/or illegal and void ab initio
are hereby quashed and set aside. The
writ petition is allowed. There shall be a
writ of quo warranto declaring the
appointment of the respondent No. 1 as
Vice Chancellor of the APJ Abdul Kalam
Technological
University,
Thiruvananthapuram as void ab initio
and consequently, the appointment of
respondent No. 1 as Vice Chancellor of
the APJ Abdul Kalam Technological
University,
Thiruvananthapuram
is
quashed and set aside.

40. In the case cited above the
appointment of the Vice Chancellor was
made diluting some provisions where the
Apex Court has taken the view that the
provisions of U.G.C. Regulations will be
applicable and provisions cannot be diluted
but the case in hand the responents have not
approached the Court even after enquiry
report dated 24.3.2008 for issuance of writ
of quo warranto or appointments of
petitioners were illegal or dehors the rules,
therefore above cited judgments is of no aid
to the respondents specially in view of latest
judgment of Apex Court in the case of
Vinod Kumar (supra) and Sandeep
Kumar (supra).
5 All. Sanjay Kumar Singh & Ors. Vs. District Basic Education Officer, Jaunpur & Ors.
541
41. Learned Chief Standing
Counsel further argued that the petitoners do
not possess the requisite qualifiaction
therefore, the appointment is void ab initio.
He referred to paragraph nos. 9 and 10 in the
case of Ram Avtar Singh (supra) and
Devesh Sharma (supra) are of no help as
facts of the case stated hereinabove and in
view of the latest judgment of the Apex
Court in the cases of Vinod Kumar (supra)
and Sandeep Kumar (supra) as well as of
Nahar Sigh ( supra).

42. In the case in hand the approval
was sought by the State Authority as
Authority Controller, approval was granted
by the State Authorites i.e. the District Basic
Education Officer and after adopting due
process of selection in the presence of the
nominee of the District Basic Education
Officer the selection has been undertaken.
After completing the selection process the
Authorised Controller ( appointed by the
State Authority) forwarded the names of the
selected candidates to the District Basic
Education Officer for its approval for
appointment. By the order dated 21.8.2003
the approval was accorded which is still
intact. In others words the approval has not
been recalled till date.

43. Further in the case of Radhay
Shyam Yadav (supra) the Apex Court has
recently held that since the approval is still
enforce, the appellants therein were deemed
to be in service and directed to pay arrears
of salary with all consequential benefits,
including seniority, notional promotion, if
any, and fitment of salary and other service
benefites due, be granted to the appellants
therein.

44. The report was prepared on
24.3.2008. In pursuance thereof the only
action was taken against the petitioners by
way of stopping their salary and were
restrained from discharging their duties
but nothing has been brought on record on
behalf of the State to show that either the
petitioners were suspended from services
or charge sheets were issued to them or
services
of
the
petitioners
were
terminated.

45. The report dated 24.3.2008
alleging that the petitioners were in
collusion with the State Authorities but no
departmental action has been taken agianst
the erring officers of the State. In-turn the
respondent authorities gave a safe passage
to the erring officers to superannuate.
Even after retirement no acton has been
taken against the erring officers within the
stipulated time povided in the Service
Rules. The conduct of the respondent
authorities shows that the petitioners are
only made scape goat leaving aside the
role of the erring officers.

46.