# Sant Ram v. The District Inspector of Schools and another

- **Citation:** (2010) 3 ILRA 969
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-06
- **Case number:** Civil Misc. Writ Petition No. 9213 of 1992
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sant-ram-v-the-district-inspector-of-schools-and-another-41760
- **Pages:** 6

## Headnote

C.S.C.

U.P.
High
School
and
Intermediate
(Payment of Salary) Act, 1971/U.P.
Secondary Education Board 1982-Ad-hoc
appointment made without notifying
vacancy in 2 News Paper-view of Full
Bench judgement Kumari Radha Raizada
case subsequently the Apex Court as
well as High Court-such Appointment
made in violation there to illegal and no
benefits could be arrived at.

Held: Para 20, 21 and 22

Lastly, for the same proposition the
judgement
in
the
case
of
"H.C.
Puttaswamy and others Vs. The Hon'ble
Chief Justice of Karnataka High Court,
970 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Bangalore and others reported in 1991
SC 295" has been relied upon.

At the very out set the Court may record
that Section 16 of the Selection Board
Act,
1982
declares
that
if
any
appointment is made contrary to the
provisions of the said Act the same
would be void. Section 16 of the Act
reads as follows:

16.Appointment to be made only on the
recommendation
of
the
Board.-(1)
Notwithstanding
anything
to
the
contrary contained in the Intermediate
Education Act, 1921 or the regulations
made thereunder but [subject to the
provisions of ["Sections 12, 18, 21-B, 21C, 21-D, 33, 33-1, 33-B, 33-C, 33-D, 33-E
and
33-F,
every
appointment
of
a
teacher, shall on or after the date of the
commencement of the Uttar Pradesh
Secondary Education Services Selection
Board (Amendment) Act, 2001 be made
by
the
management
only
on
the
recommendation of the Board").

In the facts of this case the Court has
found that the appointment of the
petitioner was be hors the statutory
provisions applicable as per the Act,
1982 and therefore it has to be treated
as void in view of Section 16 of 1982 Act.
No amount of judicial discretion under
Article 226 of the Constitution of India
can infuse life in a dead appointment.
Case law discussed:
1994 (3) UPLBEC 1551, 2000 (3) ESC 2075
(All), 1991 SC 295,2008 (4) ALJ 207, 2006 (4)
SCC 1, 2006 (5) SCC 493, 2006 (1) JT 331

## Text

3 All] Sant Ram V The District Inspector of Schools and another
969
petitioner attained the age of superannuation
on 30.11.1990. Thus, on the face of record,
the service period for which the petitioner
had been charged for causing loss to the
Government, relates to the period of four
years before the date of retirement.

9. In view of the above, at the face of
record, it is apparent that the impugned
chargesheet has been issued without having
prior sanction of the State Government and
secondly, the period during which the
original petitioner is alleged to have caused
loss to the Government, is of four years
before the date of retirement. Accordingly,
the impugned chargesheet seems to have
been issued in violation of provisions
contained in Regulation 351-A of the
Regulations. There is one another aspect of
the matter. During the pendency of writ
petition, the original petitioner died and is
represented by his legal heirs. Hence also, no
inquiry can be instituted after death of the
employee.

10. In view of the above the writ
petition is allowed. A writ in the nature of
certiorari is issued quashing the impugned
chargesheet dated 4.7.1991 contained in
Annexure No.4, the order dated 2.2.1993
issued by the Special Secretary, Agriculture
U.P.,
Lucknow,
for
recovery
of
Rs.1,16,188.80,
with
all
consequential
benefits. It has been brought to the notice of
this Court that the wife of the original
petitioner had died on 2.8.2009 and in case,
the writ petition is allowed, the heirs shall be
entitled for arrears of family pension till the
date of death of the wife of the original
petitioner i.e., 2.8.2009. A writ of mandamus
is issued directing the opposite parties to pay
all post retiral dues including regular family
pension in accordance with Rules. A writ in
the nature of mandamus is further issued to
the opposite parties to ensure payment of
arrears of post retiral family pension and pass
orders keeping in view the observations
made hereinabove, within three months from
the date of receipt of the certified copy of this
order. The Principal Secretary, Agriculture,
U.P., shall ensure that a speaking and
reasoned order be passed within aforesaid
period with regard to payment of post retiral
dues and arrears of family pension to the
heirs of the original petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 9213 of 1992

Sant Ram

 ...Petitioner
Versus
The District Inspector of Schools, Basti
and another

 ...Respondent

Counsel for the Petitioner:
Sri Raj Kumar Jain
Sri Rahul Jain

Counsel for the Respondents:
C.S.C.

U.P.
High
School
and
Intermediate
(Payment of Salary) Act, 1971/U.P.
Secondary Education Board 1982-Ad-hoc
appointment made without notifying
vacancy in 2 News Paper-view of Full
Bench judgement Kumari Radha Raizada
case subsequently the Apex Court as
well as High Court-such Appointment
made in violation there to illegal and no
benefits could be arrived at.

Held: Para 20, 21 and 22

Lastly, for the same proposition the
judgement
in
the
case
of
"H.C.
Puttaswamy and others Vs. The Hon'ble
Chief Justice of Karnataka High Court,
970 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Bangalore and others reported in 1991
SC 295" has been relied upon.

At the very out set the Court may record
that Section 16 of the Selection Board
Act,
1982
declares
that
if
any
appointment is made contrary to the
provisions of the said Act the same
would be void. Section 16 of the Act
reads as follows:

16.Appointment to be made only on the
recommendation
of
the
Board.-(1)
Notwithstanding
anything
to
the
contrary contained in the Intermediate
Education Act, 1921 or the regulations
made thereunder but [subject to the
provisions of ["Sections 12, 18, 21-B, 21C, 21-D, 33, 33-1, 33-B, 33-C, 33-D, 33-E
and
33-F,
every
appointment
of
a
teacher, shall on or after the date of the
commencement of the Uttar Pradesh
Secondary Education Services Selection
Board (Amendment) Act, 2001 be made
by
the
management
only
on
the
recommendation of the Board").

In the facts of this case the Court has
found that the appointment of the
petitioner was be hors the statutory
provisions applicable as per the Act,
1982 and therefore it has to be treated
as void in view of Section 16 of 1982 Act.
No amount of judicial discretion under
Article 226 of the Constitution of India
can infuse life in a dead appointment.
Case law discussed:
1994 (3) UPLBEC 1551, 2000 (3) ESC 2075
(All), 1991 SC 295,2008 (4) ALJ 207, 2006 (4)
SCC 1, 2006 (5) SCC 493, 2006 (1) JT 331

(Delivered by Hon'ble Arun Tandon, J.)

1. The Krishak Odyogik Pal Inter
College, Harharpur, District Basti is an
institution recognized under the provision of
Intermediate Education Act. The institution
is also on the aid list of the State
Government. The provisions of the U.P.
High School and Intermediate (Payment of
Salary) Act, 1971 as well as those of U.P.
Secondary Education Services Selection
Board, 1982 are fully applicable to the said
institution.

2. The substantive vacancy was caused
in the institution in L.T. Grade due to
retirement on 1st July, 1990. The Committee
of Management notified the vacancy to the
District Inspector of Schools on 25.7.1991.

3. Since the U.P. Secondary Services
Selection Board failed to recommend any
suitable
candidate,
the
Committee
of
Management invited application for the said
post and the petitioner claims to have been
appointed vide letter dated 8.10.1991. The
petitioner joined in pursuance thereof on
9.10.1991, and claims to be working since
then.

4. The District Inspector of Schools did
not accord approval to the said appointment
of the petitioner. He has therefore, approach
this Court for a writ of mandamus directing
the respondents to approve his appointment
as L.T. Grade since 9.10.1991 and further not
interfere in the working of the petitioner. The
writ Court while entertaining the present writ
petition issued an order directing the
respondents to pay salary to the petitioner as
L.T. Grate teacher or show cause within one
month.

5. Cause has been shown although only
on 18.5.1992. In the counter affidavit filed it
was stated that the requisition received from
the
Committee
of
Management
was
incomplete and therefore, it was not
forwarded to the Selection Board. It has
further been stated that in absence of the
proper requisition the Committee did not
have power to make any ad-hoc appointment
under Section 18 of the Commission Act.
Therefore, the ad-hoc appointment of the
3 All] Sant Ram V The District Inspector of Schools and another
971
petitioner is illegal and he is not entitle to
salary from the State Exchequer.

6. A rejoinder affidavit has been filed
and it has been replied that the requisition as
submitted was in prescribed proforma
complete in all respect. The District Inspector
of Schools did not raise any objection with
regards to the proforma so submitted at any
point of time. Reference is made to the
document enclosed as Annexure No.1 to the
writ petition. It has therefore, been contended
that the objection taken is unsustainable.
Counsel relies upon the judgment of this
Court in the case of "Aizaz Husain Rizvi Vs.
Selection Commission & others", which
law laid down stated to have been affirmed
by the Division Bench, wherein it has been
held that if requisition has not been
forwarded by the District Inspector of
Schools to the Selection Board then the
Committee will not loose its power to make
ad-hoc appointment under Section 18.

7. Heard learned counsel for the parties
and examined the record.

8. On examination of the requisition
which has been forwarded by the Committee
of Management under letter dated 6.8.1991
and which bears the endorsement of receipt
dated 6.8.1991. This Court finds that in the
column no.4 the college was required to
disclose the categories of posts created with
regards to the pay scale, those filled by way
of
direct
recruitment
and
promotion
separately and the actual number of persons
working. In the said column 4 the only
information supplied by the college is that
there were 32 posts out of which 9 persons
have been appointed by way of promotion in
all 31 persons are working and the vacancy
which was caused in 1990 is L.T. Grade is
required to be filled by direct recruitment.

9. The information supplied is
incomplete on the face of it. As per
requirements
of
relevant
column
the
petitioner was required to disclose the
number of posts sanction with reference to
the pay scale separately i.e. in Lecturer
Grade, L.T. Grade and C.T. Grade in the
institution and it is with reference to each of
these pay scales the petitioner was required
to supply information with regards to the
number of persons appointed by promotion
and direct recruitment separately. The
college had further informed the details of
persons appointed in the respective grade
within the reserved categories.

10. The college has not disclosed as to
how many person in L.T. Grade were
working against the duly sanctioned posts,
the number of persons appointed by
promotion and by direct recruitment in L.T.
Grade was not disclosed separately nor the
details of reservation have been furnished. In
absence of the aforesaid information the
Selection Board could not have determined
the reservation applicable to the post nor
could ascertain as to whether the vacancy
was within the quota for direct recruitment or
promotion.

11. It is needless to emphasize under
Chapter II 50% post in L.T. Grade are
required to be filled by promotion from C.T.
Grade. This 50% can only be worked out if
the number of sanctioned posts and the
persons actually working in the institution
including the method of their appointment is
known. The District Inspector of Schools is
justified in contending that the requisition
supplied was incomplete and therefore, was
not acted upon.

12. The District Inspector of Schools is
further right in stating that on such
requisitions the Committee will not get a
972 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
right to appointment a teacher on ad-hoc
basis under Section 18 of the Commissions
Act, Section 18 reads as follows:-

"18. Ad hoc Teachers.-(1) Where the
Management has notified a vacancy to the
[Board] in accordance with sub-section (1)
of Section 10 and the post of a teacher
actually remained vacant for more than two
months, the Management may appoint by
direct recruitment or promotion a teacher on
purely ad hoc basis, in the manner
hereinafter provided in this section."

13. Therefore, the first condition for
Section 18 to apply is that a requisition in the
prescribed proforma complete in all respect
is forwarded to District Inspector of Schools
as per the rules applicable. Thus in the facts
of the case where the requisition is not in
accordance with Section 10 (1) of the Act,
1982, the Committee cannot exercise powers
under Section 18 of the Act.

14. This Court further finds from the
record of the writ petition that the
appointment has been offered to the
petitioner on ad-hoc basis against a
substantive vacancy in L.T. Grade only after
the vacancy was advertised on the notice
board.

15. The Full Bench of this Court in the
case of "Km. Radha Raizada vs. Committee
of Management, Vidyawati Darbari Girls
Inter College reported in (1994) 3
UPLBEC, 1551" has specifically held that
for ad-hoc appointment under the First
Removal and Difficulties Order the vacancy
has to be advertised in two news paper and it
has been held that the advertisement of the
vacancy on the notice board of the institution
is no advertisement.

16. In view of the aforesaid, this Court
finds that there is no ground for granting the
mandamus as prayed for.

17. By means of amendment
application the petitioner has prayed for a
direction upon the respondents to regularize
the petitioner as L.T. Grade teacher in the
institution. Since the appointment of the
petitioner itself was illegal and contrary to
the statutory provisions applicable. No
direction for regularization can be issued.

18. The Court may now consider the
judgments which have been relied upon for
the purpose. Supreme Court in the case of
"Naresh Chand Vs. District Inspector of
Schools & others" after noticing that the
appointment of the person was in violation of
the provisions of the 1982 Act, the facts of
that case recorded that the teacher has
continued and had been regularized by the
education authority on the post in question.
Then the Supreme Court in para 9 issued
following directions:-

"On
the
special
facts
and
circumstances, we are of the view that
interests of justice would be served by
permitting the appellant to continue as a
Lecturer in Chemistry on ad-hoc basis, till
the vacancies are filled. Respondents 1 and 2
shall also release the salary of the appellant
for the period of such ad-hoc appointment.
Further,
as
and
when
the
Service
Commission or other authority concerned
with the selection and appointment invites
applications for filling the posts of Lecturer
in Chemistry, in the third Respondent
College, the Appellant's application for such
post shall be considered by relaxing the age
limit. Steps shall be taken to fill the vacancies
expeditiously."
3 All] Sant Ram V The District Inspector of Schools and another
973

19. A Division Bench of this Court
in the case of "Dr. Prabhu Narain
Saxena Vs. The Chancellor, Agra
University and others, reported in 2000
(3) ESC 2075(All.), in para 14 has been
held that even if the new appointment of
the employees is bad on account of some
infirmity but he has continued for long
years under the interim order of the
Court it would be unfair to remove such
an employee:

Para 14 of the judgment is quoted
below:-

"14. Lastly it may be noted that the
petitioner has been working since 21st
December, 1987. This Court admitted the
writ petition on 6.12.1988 and suspended
the operation of the impugned order of
the Chancellor dated 28.11.1988 and
since then the petitioner is continuing in
service. The petitioner was selected by
the Selection Committee on merits and it
has been approved by the Executive
Council. It has not been shown that his
selection was not on merits. In these
circumstances also it will not be proper
to dislodge him from working in the
institution. In Rajendra Prasad Srivastava
v.
District
Inspector
of
Schools,
Gorakhpur, 1994 (3) ESC 117 (All), it
was held that an employee whose initial
appointment may be bad on account of
some infirmity therein but if he has been
allowed to work for some years under the
stay order of the court, it will be unfair to
remove such an employee."

20. Lastly, for the same proposition
the judgment in the case of "H.C.
Puttaswamy and others Vs. The Hon'ble
Chief Justice of Karnataka High Court,
Bangalore and others reported in 1991
SC 295" has been relied upon.

21. At the very out set the Court
may record that Section 16 of the
Selection Board Act, 1982 declares that
if any appointment is made contrary to
the provisions of the said Act the same
would be void. Section 16 of the Act
reads as follows:-

16.Appointment to be made only
on the recommendation of the Board.-
(1) Notwithstanding anything to the
contrary contained in the Intermediate
Education Act, 1921 or the regulations
made thereunder but [subject to the
provisions of ["Sections 12, 18, 21-B, 21C, 21-D, 33, 33-1, 33-B, 33-C, 33-D, 33E and 33-F, every appointment of a
teacher, shall on or after the date of the
commencement of the Uttar Pradesh
Secondary Education Services Selection
Board (Amendment) Act, 2001 be made
by
the
management
only
on
the
recommendation of the Board").

22. In the facts of this case the
Court has found that the appointment of
the petitioner was be hors the statutory
provisions applicable as per the Act,
1982 and therefore it has to be treated as
void in view of Section 16 of 1982 Act.
No amount of judicial discretion under
Article 226 of the Constitution of India
can infuse life in a dead appointment.

23. The issue with regards to rights
of an illegal appointee dispite his
continuance under interim orders of High
Court for a long duration has been
recently considered by the Supreme Court
in its judgment in the case of "Pramod
Kumar Vs. U.P. Secondary Education
Services Commission & others reported
in 2008(4) ALJ 207". And after noticing
the judgment in the case of State of
"Secretary, State of Karnataka and
974 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
others
Vs.
Umadevi(3)
and
others
reported in 2006 (4) SCC 1", "National
Fertilizers Ltd. and others Vs. Somvir
Singh reported in 2006(5) SCC 493, and
"Mohd. Sartaj and another Vs. State of
U.P. and others reported in 2006 (1) JT
331 it has been laid down in para 19 as
follows:-

19. If the essential educational
qualification for recruitment to a post is
not satisfied, ordinarily the same cannot
be condoned. Such an act cannot be
ratified.
An
appointment
which
is
contrary to the statute/statutory rules
would be void in law. An illegality
cannot
be
regularized,
particularly,
when the statute in no unmistakable term
says so. Only an irregularity can be (See
Secretary, State of Karnataka and others
v. Umadevi (3) and others, ((2006) 4
SCC 1) National Fertilizers Ltd. And
Ors. v. Somvir Singh, ((2006) 5 SCC
493) and Post Master General, Kolkata
and Ors. v. Tutu Das (Dutta), ((2007) 5
SCC 317))."

24. The judgment in the case of
Naresh Chand (supra) lay down any
binding proposition of law as is clear
from the opening sentence of para 9
quoted above. The direction has been
issued in the facts of the case. Such
exercise of jurisdiction is referable to
Article 142 of the Constitution of India.

25. The law as explained by the
Division Bench of this Court in the case
of Dr. Prabhu Narain Saxena (supra)
stand
impliedly
overruled
by
the
judgment of the Apex Court in the case
of Proamod Kumar (supra).

26. The judgment in the case of
H.C. Puttaswamy deals with the powers
of the Hon'ble Chief Justice under
Article 229 of the Constitution of India
and is clearly distinguishable with the
facts of the case in hand.

27. The writ petition is dismissed.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2010

BEFORE
THE HON'BLE S.K. TRIPATHI, J.

Criminal Misc. Application No. 12014 of 1987

Dharmendra Singh and others

 ...Petitioner
Versus
Sant Saran Gupta and another

 ...Respondents

Counsel for the Petitioner:
Sri V.S.Singh

Counsel for the Respondents:
Sri G.S.Dwivedi
Sri A.G.A.
Sri C.P.Mishra

Code of Criminal Procedure-Section 482summoning order by magistrate-offence
under Section 415, 417,418, 420 I.P.C.-
allegations
disclose
breech
of
agreement-not constitute any criminal
charges-but
purely
civil
nature-held
complaint can not proceed.

Held: Para 9 and 10

A mere breach of promise does not
constitute any criminal charge. There is
nothing in the entire complaint to show
that the intention of the applicants were
dishonest from the very beginning. If
they changed their attitude later on, the