# Santosh Kumar Singh v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 781
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-22
- **Case number:** Special Appeal Defective No. 215 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta, Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-singh-v-state-of-u-p-ors-43183
- **Pages:** 9

## Headnote

U.P. Intermediate Education Act 1921Section 16-E-(II)-Rescission of removal of
difficulties order w.e.f. 25.01.99-power of
management-appointment on short term
vacancy-caused to death or leave of
incumbent-held-process
of
selection
initiated
prior
or
on
the
date
of
enforcement-shall
continue-management
can appoint against sort term vacancy for
limited period six month or till end of
academic session-law laid down by in
Subhash Chandra Tripathi-affirmed.
Held: Para-20 (a)(b)(c)(d)

## Text

2 All] Santosh Kumar Singh Vs. State of U.P. & Ors.
781
16. In the result writ petition
succeed and the impugned order of
recovery is hereby set aside.
17.
Accordingly, the writ petition is
allowed and respondents are directed to
release the balance amount of gratuity of Rs.
89728.02 in favour of the petitioner along
with interest as admissible according to the
Government Orders applicable in this behalf.
Necessary compliance of this order passed
by this Court be made within a period of
three months from the date a certified copy
of this order is filed before the competent
authority.
18. No order as to cost.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal Defective No. 215 of 2015
Santosh Kumar Singh
...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri R.C. Dwivedi
Counsel for the Respondents:
C.S.C.
U.P. Intermediate Education Act 1921Section 16-E-(II)-Rescission of removal of
difficulties order w.e.f. 25.01.99-power of
management-appointment on short term
vacancy-caused to death or leave of
incumbent-held-process
of
selection
initiated
prior
or
on
the
date
of
enforcement-shall
continue-management
can appoint against sort term vacancy for
limited period six month or till end of
academic session-law laid down by in
Subhash Chandra Tripathi-affirmed.
Held: Para-20 (a)(b)(c)(d)
20. We consequently answer the reference
in the following terms:
(a) Despite the rescission of the Removal of
Difficulties Orders by Section 33-E of U P
Act No 13 of 1999 with effect from 25
January 1999, the power of the Committee
of Management to make appointments
against short term vacancies, where the
process of appointment had been initiated
prior to 25 January 1999 by the publication
of an advertisement, would continue to be
preserved;
(b) On the enforcement of the provisions
of
Section
33-E,
the
power
of
a
Committee of Management to make ad
hoc appointments against short term
vacancies would not stand abrogated in
a case where the process of selection
had been initiated prior to 25 January
1999;
(c)
Under
Section
16-E
of
the
Intermediate Education Act, 1921, the
Committee
of
Management
is
empowered to make an appointment
against a temporary vacancy caused by
the grant of leave to an incumbent for a
period not exceeding six months or in
the
case
of
death,
termination
or
otherwise, of an incumbent occurring
during
an
educational
session.
An
appointment made under sub-section
(11) of Section 16-E as provided in the
proviso thereto shall, in any case, not
continue beyond the end of educational
session during which the appointment
was made; and
(d) The judgment of the Division Bench
in Subhash Chandra Tripathi (supra) is
affirmed
as
laying
down
a correct
interpretation of the judgment in A A
Calton (supra).
782
 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
(1983) 3 SCC 33; 1995 AWC 1035; (1990) 3
SCC 157; (2010) 13 SCC 467; AIR 1991 SC
1612; (2011) 9 SCC 613; (2015) 3 SCC 177;
[2011 (1) ESC 221 (All) (DB)].
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The present reference to the Full
Bench has been occasioned by a referring
order of a Division Bench of this Court
dated 20 March 2015. The questions
which have been referred for decision by
the Full Bench are thus:
(a) Whether even after the rescission
of Removal of Difficulties Orders under
Section 33-E of the Uttar Pradesh
Secondary Education Services Selection
Board Act, 19821 (U P Act No 5 of
1982), with effect from 25 January 1999,
the Committee of Management retains the
power to make ad-hoc appointment
against short term vacancies only because
it had published an advertisement for the
purpose prior to 25 January 1999;
(b) Whether on enforcement of
Section 33-E of the Act rescinding the
Removal of Difficulties Orders issued
earlier, the Committee of Management
has lost all powers to make ad-hoc
appointment against short term vacancies;
(c) Whether under Section 16-E of
the Intermediate Education Act 19212,
there is a power with the Committee of
Management to make ad-hoc appointment
against short term vacancies and if so then
for what period; and
(d) Whether the Division Bench in
the case of Subhash Chandra Tripathi Vs
State of U P3 has laid down the correct
law.
2.

The
Act
established
the
Secondary Education Services Selection
Board4
for
selection
of
teachers
in
institutions recognized under the Act of
1921. Section 16 of the Act provides that
notwithstanding anything to the contrary
contained in the Act of 1921 or the
regulations made thereunder but subject to
certain specified provisions of the Act, 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. Section 32
provides that the provisions of the Act of
1921 and the regulations made thereunder,
insofar as they are not inconsistent with the
provisions of the Act or its regulations, shall
continue to be in force for the purposes of
selection, appointment, promotion, dismissal,
removal, termination or reduction in rank of
a teacher. Section 33 of the Act provides that
the State Government may, for the purposes
of removing any difficulty, by a notified
order, direct that the provisions of the Act
shall, during such period as may be specified
in the order, have effect subject to such
adaptations, whether by way of modification,
addition or omission as it may deem to be
necessary or expedient. Section 33-E was
introduced into the Act by U P Act No 13 of
1999 so as to provide for the rescission of the
Removal of Difficulties Orders made under
Section 33 of the Act and is in the following
terms:
" 33-E. Rescission of Orders.- The
Uttar
Pradesh
Secondary
Education
Services
Commission
(Removal
of
Difficulties) Order, 1981, the
Uttar
Pradesh Secondary Education Services
Commission (Removal of Difficulties)
(Second) Order, 1981, the Uttar Pradesh
Secondary
Education
Services
Commission (Removal of Difficulties)
(Third) Order, 1982 and the Uttar Pradesh
2 All] Santosh Kumar Singh Vs. State of U.P. & Ors.
783
Secondary Education Services Commission
(Removal of Difficulties) (Fourth) Order,
1982 are hereby rescinded."
3. Section 33-E was introduced with
effect from 25 January 1999. Prior to the
introduction of Section 33-E, the Uttar
Pradesh Secondary Education Services
Commission (Removal of Difficulties)
Order, 19815 was issued in exercise of the
power conferred by Section 33 to remove
difficulties. Para 2 of the Removal of
Difficulties Order provided for the
vacancies on which ad hoc appointments
could be made while Para 3 referred to the
duration of ad hoc appointments. The
Uttar
Pradesh
Secondary
Education
Services
Commission
(Removal
of
Difficulties) (Second) Order, 19816 was
thereafter notified. Para 2 of Removal of
Difficulties (Second) Order provided the
procedure for filling up short term
vacancies, while Para 3 provided for the
duration of ad hoc appointments.
4. The issue which has been referred
to for adjudication before the Full Bench
relates to a situation where the process of
selection
for
making
an
ad
hoc
appointment had commenced prior to 25
January 1999 when the Removal of
Difficulties Orders stood rescinded as a
result of the insertion of Section 33-E.
5. A reference was earlier made to a
Division Bench of this Court by a learned
Single Judge in Subhash Chandra Tripathi
(supra) of the following questions:
"(a) Whether in respect short term
vacancy, appointment can be made by the
Committee of Management subsequent to
25 January 1999 when the power to make
ad hoc appointment by the Committee of
Management itself has been withdrawn by
addition of Section 33-E to U P Act No 5
of 1982; and
(b) Whether initiation of process by
an advertisement prior to 25 January 1999
can lead to suggest that even after
statutory withdrawal of the substantive
power of the Committee of Management
to make ad hoc appointment against short
term vacancy, it still retains the same after
25 January 1999, merely because the
process of selection was initiated earlier."
6. The Division Bench, by a
judgment dated 12 December 2011
answered the reference in the following
terms:
"(a) A short term vacancy for which
the process of appointment was started to
fill it up by the ad hoc appointment by the
Committee of Management of the College
prior to 25.1.1999 can be filled up and the
appointment
can
be
made
by
the
Committee of management even after the
rescission of the Removal of Difficulties
Orders by inserting Section 33-E to the U
P Act No 5 of 1982.
(b) The initiation of process by an
advertisement prior to 25.1.1999 by the
Committee of Management to fill up a
short term vacancy by ad hoc appointment
can be continued and concluded and
appointment letters issued even after
initiation of Section 33E to the UP Act No
5 of 1982 w e f 25.1.1999."
7. In taking this view, the Division
Bench relied upon a decision of the
Supreme Court in A A Calton Vs Director
of Education7. The Division Bench held
that in a situation where the selection
process had been initiated prior to the
rescission of the Removal of Difficulties
Orders on 25 January 1999
by the
insertion of Section 33-E, the Committee
784
 INDIAN LAW REPORTS ALLAHABAD SERIES
of Management would have the power to
make an ad hoc appointment on short
term vacancies. The Division Bench held
that, as a matter of interpretation, a view
which has stood the test of time and has
been applied consistently to cases coming
to the Court should not be easily
reconsidered for departure unless it was
principally wrong. A large number of
teachers were appointed on ad hoc basis
on short term vacancies for which the
selection process had commenced prior to
25 January 1999 and the endeavour of the
Court should not be to unsettle the
position of law which had held the field.
The Division Bench took note of the fact
that the position in law has in Deshraj
Singh Negi Vs State of U P8 been
adopted by a learned Single Judge and in
other decisions which should not be
lightly disturbed.
8. The reference before the Full
Bench is now by a Division Bench of this
Court. The questions which have been
formulated for decision are principally the
same as those which were answered by
the Division Bench on a reference being
made by a learned Single Judge in
Subhash Chandra Tripathi (supra).
9. In A A Calton (supra), a Selection
Committee had been constituted under
Section 16-E of the Act of 1921. The
selection was not approved by the
Regional Deputy Director of Education
and the matter was again remitted to the
Selection
Committee.
A
second
recommendation
of
the
Selection
Committee was also disapproved by the
Regional Deputy Director after which a
third recommendation was made. The
appellant,
who
was
one
of
the
recommended
candidates
but
placed
below the first candidate, challenged the
selection. The High Court allowed the
writ petition holding that the selection
made by the Selection Committee on the
third occasion was without jurisdiction.
As a result of an amendment made with
effect from 18 August 1975 by U P Act
No 26 of 1975, the power of the Director
to make an appointment under Section 16F (4) of the Act of 1921 was taken away
in the case of minority institutions. The
Supreme Court held that though the
power was expressly taken away by the
amending Act, the provisions of the
amending Act did not apply to pending
proceedings under Section 16-F and the
amendment was not made applicable
retrospectively either expressly or by
necessary
implication.
The
Supreme
Court held as follows:
"It is no doubt true that the Act was
amended by U P Act 26 of 1975 which came
into force on August 18, 1975 taking away
the power of the Director to make an
appointment under Section 16-F (4) of the
Act in the case of minority institutions. The
amending Act did not, however, provide
expressly that the amendment in question
would apply to pending proceedings under
Section 16-F of the Act. Nor do we find any
words in it which by necessary intendment
would affect such pending proceedings. The
process of selection under Section 16-F of
the Act commencing from the stage of
calling for applications for a post upto the
date on which the Director becomes entitled
to make a selection under Section 16-F (4)
(as it stood then) is an integrated one. At
every stage in that process certain rights are
created in favour of one or the other of the
candidates. Section 16-F of the Act cannot,
therefore, be construed as merely a
procedural provision. It is true that the
Legislature may pass laws with retrospective
effect subject to the recognised constitutional
2 All] Santosh Kumar Singh Vs. State of U.P. & Ors.
785
limitations. But it is equally well settled that
no retrospective effect should be given to any
statutory provision so as to impair or take
away an existing right, unless the statute
either expressly or by necessary implication
directs that it should have such retrospective
effect. In the instant case admittedly the
proceedings
for
the
selection
had
commenced in the year 1973 and after the
Deputy Director had disapproved the
recommendations made by the Selection
Committee twice the Director acquired the
jurisdiction to make an appointment from
amongst the qualified candidates who had
applied for the vacancy in question. At the
instance of the appellant himself in the earlier
writ petition filed by him the High Court had
directed the Director to exercise that power.
Although the Director in the present case
exercised that power subsequent to August
18, 1975 on which date the amendment came
into force, it cannot be said that the selection
made by him was illegal since the amending
law had no retrospective effect. It did not
have any effect on the proceedings which
had commenced prior to August 18, 1975.
Such proceedings had to be continued in
accordance with the law as it stood at the
commencement of the said proceedings. We
do not, therefore, find any substance in the
contention of the learned counsel for the
appellant that the law as amended by the U P
Act No 26 of 1975 should have been
followed in the present case."
10. The decision in A A Calton
(supra) is, therefore, an authority for the
proposition that once a process of
selection has been initiated, a subsequent
amendment of the law by which the
power to make an appointment has
specifically been taken away from a
statutory authority - in that case from the
Director - would have no application to a
pending selection process which must be
governed by the law as it stood when the
selection
process
was
initiated.
Undoubtedly, the Legislature does have
the
power
to
make
a
law
with
retrospective effect but unless the law is
made
expressly
retrospective
or
retrospective by necessary implication,
the position of law as it stood when the
selection process was initiated, would
govern the selection.
11. In certain other contexts, the
Supreme Court has held, for instance, that
a selection process has to be governed by
the Rules and Government Orders in
existence on the date on which the
process is initiated. In N T Devin Katti Vs
Karnataka Public Service Commission9,
the Supreme Court held as follows:
"...Where proceedings are initiated for
selection by issuing advertisement, the
selection should normally be regulated by the
then existing rules and government orders
and any amendment of the rules or the
government order pending the selection
should not affect the validity of the selection
made by the selecting authority or the Public
Service Commission unless the amended
Rules or the amended government orders,
issued in exercise of its statutory power
either by express provision or by necessary
intendment indicate the amended Rules shall
be applicable to the pending selections. See P
Mahendran Vs State of Karnataka10."
12. In State of Bihar Vs Mithilesh
Kumar11, the Supreme Court held that a
change in the norms of recruitment could
be applied prospectively and could not
affect those who have been selected for
being recommended for appointment after
following the norms which were in place
at the time when the selection process was
commenced. The submission to the
786
 INDIAN LAW REPORTS ALLAHABAD SERIES
contrary was based on the decision in
Shankarsan Dash Vs Union of India12 to
the effect that mere inclusion in a select
panel did not confer indefeasible right to
appointment.
The
Supreme
Court
explained the position in law as follows:
"The decisions which have been cited
on behalf of the respondent have clearly
explained the law with regard to the
applicability of the rules which are amended
and/or altered during the selection process.
They all say in one voice that the norms or
rules as existing on the date when the process
of selection begins will control such selection
and any alteration to such norms would not
affect
the
continuing
process,
unless
specifically
the
same
were
given
retrospective effect...While a person may not
acquire an indefeasible right to appointment
merely on the basis of selection, in the instant
case the fact situation is different since the
claim of the respondent to be appointed had
been negated by a change in policy after the
selection process had begun."
13. In a subsequent decision in
Government of Andhra Pradesh Vs Sri
Sevadas Vidyamandir High School13, the
Supreme Court held that a ban on
recruitment to grant-in-aid posts had been
issued after the school in question had
been permitted by the State to fill up
vacant posts. The Supreme Court held
that in these circumstances, the State
could not contend that the process of
rationalization which was introduced
subsequently, would also apply to private
aided schools, where the process of
recruitment had already been commenced
pursuant to the approval granted earlier.
14. The judgment in A A Calton
(supra) has been recently followed in a
decision of the Supreme Court in Kulwant
Singh Vs Daya Ram14 in the context of
the principle that vacancies which had
occurred prior to an amendment of rules
would be governed by the unamended
rules and not by the amended rules where
the
amended
rules
are
not
made
retrospective either expressly or by
implication.
15. The judgment of the Division
Bench in Subhash Chandra Tripathi's case
was based on the law laid down by the
Supreme Court in A A Calton (supra). In
the referring judgment, the Division
Bench has doubted the correctness of that
view based on a judgment of the Supreme
Court in Shankarsan Dash (supra). In the
view of the Division Bench, the Supreme
Court has held that even a selection does
not confer a right of appointment. Hence,
the view which has been taken by the
Division Bench is that a mere initiation of
the process of selection will not result in
the retention of the power of appointment
by the authority concerned even when the
power
of
appointment
had
been
withdrawn under a statutory provision, in
this case Section 33-E. The decision in
Shankarsan Dash (supra) of a Constitution
Bench of the Supreme Court dealt with
the issue as to whether a candidate whose
name appears in the merit list on the basis
of a competitive examination acquires an
indefeasible right of appointment as a
government servant merely because a
vacancy exists. In that context, the
Supreme Court held as follows:
"7. It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily the notification merely
2 All] Santosh Kumar Singh Vs. State of U.P. & Ors.
787
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any right
to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies.
However, it does not mean that the State has
the licence of acting in an arbitrary manner.
The decision not to fill up the vacancies has
to be taken bona fide for appropriate reasons.
And if the vacancies or any of them are filled
up, the State is bound to respect the
comparative merit of the candidates, as
reflected at the recruitment test, and no
discrimination can be permitted. This correct
position has been consistently followed by
this Court, and we do not find any discordant
note in the decisions in State of Haryana v.
Subhash Chander Marwaha15, Miss Neelim
Shangla v. State of Haryana16, or Jitendra
Kumar v. State of Punjab17"
16. These observations of the
Supreme Court would indicate that the
issue in Shankarsan Dash (supra) was
completely distinct. A candidate who is
on a select list does not have an
indefeasible right to appointment merely
because a vacancy exists. That is not the
issue in the present case. The issue in the
present case is whether a process of
selection which was initiated prior to the
insertion of Section 33-E which rescinded
the Removal of Difficulties Orders must
be governed by the law as it then stood at
the time when the process was initiated by
the issuance of an advertisement. Plainly,
the issue is not about the right of a
particular candidate to appointment but
whether the selection process should be
governed by the law as it stood when the
selection process was initiated. On this
aspect, the consistent position of law has
been laid down in the judgment of the
Supreme Court in A A Calton (supra).
17. The Division Bench of this
Court, while deciding the case of Subhash
Chandra Tripathi has also adverted to a
judgment of another Division Bench in
Daya
Shanker
Mishra
Vs
District
Inspector of Schools18. In Daya Shanker
Mishra's case, the Division Bench held
that after the insertion of Section 33-E,
there should have been some provision for
filling up substantive vacancies by
making
ad
hoc
appointments.
The
Division Bench held that if an ad hoc
appointment were not to be made at all
and an educational institution requires the
services of teachers, the interest of
students would be seriously prejudiced in
the absence of an adequate complement of
teachers for imparting education. In
Subhash Chandra Tripathi's case, apart
from following the law laid down by the
Supreme Court in A A Calton's case, the
reasoning in Daya Shanker Mishra was
pressed into aid as an additional ground
for supporting the conclusion. For the
purposes of this reference to the Full
Bench, it would be appropriate for the
Court to answer the issues which have
been raised, based on the consistent
position of law as it emerges from the
decisions of the Supreme Court.
18. Section 16-E of the Act of 1921
provides for the procedure for selection of
teachers and heads of institutions. Subsection (11) of Section 16-E is to the
following effect:
"(11)
Notwithstanding
anything
contained in the foregoing sub-sections,
appointments in the case of a temporary
vacancy caused by the grant of leave to an
incumbent for a period not exceeding six
months or by death, termination or
otherwise of an incumbent occurring
during an educational session, may be
788
 INDIAN LAW REPORTS ALLAHABAD SERIES
made by direct recruitment or promotion
without
reference
to
the
Selection
Committee in such manner and subject to
such conditions as may be prescribed:
Provided that no appointment made
under this sub-section shall, in any case,
continue
beyond
the
end
of
the
educational session during which such
appointment was made."
19.
Sub-section (11) of Section 16-E
has thus made a specific provision in regard
to appointments in the case of temporary
vacancies caused by (i) the grant of leave to
an incumbent for a period not exceeding six
months; or (ii) by death, termination or
otherwise of an incumbent occurring during
an educational session. The object of the
provision is to ensure that where a temporary
vacancy arises as a result of fortuitous
circumstances,
such
as
leave,
death,
termination or otherwise, the educational
needs of students should not be disturbed.
The purpose of making an arrangement in
the case of a temporary vacancy is to protect
the interest of education so that students are
not left in the lurch by the absence of a
teacher in the midst of an academic session.
The proviso to sub-section (11), however,
stipulates that an appointment which is made
under the provisions of sub-section (11)
shall, in no case, continue beyond the end of
the educational session during which the
appointment was made. The proviso is
intended to ensure that the purpose of
appointment against a temporary vacancy
caused due to the absence of a teacher in the
midst of an academic session is met by
continuing the appointment during and until
the end of the academic session but not
further. This is a provision which has been
made by the state legislature in its legislating
wisdom. The statutory provision provides
both for the circumstances in which a
temporary vacancy can be filled up and the
length of an appointment made against a
temporary vacancy. The difficulty which
arises is because the Board, which has been
constituted under the Act, does not fulfill its
mandate of promptly selecting teachers for
regular appointment. The District Inspector
of Schools is in possession of necessary
factual data in regard to the dates of
appointment and retirement of teachers of
aided institutions. This can be summoned by
the Board even if the management does not
comply with its duty to intimate vacancies.
There can be no justification for the Board
not to discharge its duties with dispatch and
expedition. This is liable to result in a
situation where the educational needs of
students are seriously disturbed due to the
unavailability of duly selected teachers. Ad
hoc appointments in temporary vacancies
also cause a state of uncertainty for teachers
and lay them open to grave exploitation at
the hands of certain managements of
educational institutions. Thus, considering
the matter both from the perspective of the
interest of education as well as the welfare of
teachers, it is necessary that the Board must
take due and proper steps well in advance of
an anticipated vacancy to initiate the process
of selection. Similarly, the State Government
would do well to streamline the procedure
for making appointments in respect of
temporary vacancies consistent with the
mandate of Section 16-E (11) so that, while
the interest of students is protected, the
teachers are not exposed to exploitation.
20. We consequently answer the
reference in the following terms:
(a) Despite the rescission of the
Removal of Difficulties Orders by Section
33-E of U P Act No 13 of 1999 with
effect from 25 January 1999, the power of
the Committee of Management to make
appointments
against
short
term
2 All] Transport Corporation of India Varanasi Vs. Vijayanand Singh @ Vijaymal Singh & Anr.
789
vacancies,
where
the
process
of
appointment had been initiated prior to 25
January 1999 by the publication of an
advertisement, would continue to be
preserved;
(b) On the enforcement of the
provisions of Section 33-E, the power of a
Committee of Management to make ad
hoc appointments against short term
vacancies would not stand abrogated in a
case where the process of selection had
been initiated prior to 25 January 1999;
(c)
Under Section 16-E of the
Intermediate Education Act, 1921, the
Committee of Management is empowered to
make an appointment against a temporary
vacancy caused by the grant of leave to an
incumbent for a period not exceeding six
months or in the case of death, termination or
otherwise, of an incumbent occurring during
an educational session. An appointment
made under sub-section (11) of Section 16-E
as provided in the proviso thereto shall, in
any case, not continue beyond the end of
educational session during which the
appointment was made; and
(d) The judgment of the Division
Bench in Subhash Chandra Tripathi
(supra) is affirmed as laying down a
correct interpretation of the judgment in A
A Calton (supra).
21. The reference to the Full Bench
is answered in the aforesaid terms. The
special appeal shall now be placed before
the appropriate Bench for disposal in the
light of this judgment.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2015
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
Second Appeal Defective No. 268 of 2014
Transport Corporation of India Varanasi
 ...Appellant
Versus
Vijayanand Singh @ Vijaymal Singh &
Anr.
...Respondents
Counsel for the Petitioner:
Sri Dharampal Singh, Sri S. Niranjan, Sri
P.K. Dubey
Counsel for the Respondents:
Sri P.C. Pathak, Sri Rajeev Mishra
C.P.C.-Section
100-Second
AppealAgainst order rejecting First Appeal -as
not maintainable-in Original Suit on date
fixed
neither
Plaintiff/Appellant
appeared nor adduced any evidence
advanced-Trail Court in accordance with
previous order 17 Rule 2 C.P.C dismissed
the Suit due to want of evidencemeaning thereby dismissed in defaultheld not a decree within definition of
Section 2(2) C.P.C.-hence appeal under
Section 96 not maintainable-no question
of
Second
Appeal-dismissed
as
not
maintainable.
Held: Para-26
The dismissal of the suit of the trial court
as per the order referred to above was
not an adjudication of the rights of the
parties involved in the suit which can be
formally expressed. It was simply an
order of dismissal of the suit without any
adjudication of any lis or rights of the
parties. Therefore, the order of the trial
court dated 24.7.2013 does not conform
to the definition of a decree as contained
in Section 2(2) C.P.C. In that situation,
as it was not a decree, it was not amiable
to appeal under Section 96 C.P.C.
Case Law discussed:
(1999) 4 SCC 89; (2015) 2 SCC 682; AIR 1977
MP 1 (FB)
(Delivered by Hon'ble Pankaj Mithal, J.)
1. The suit of the plaintiff/appellant
was dismissed by the court of Civil Judge