# Shailendra Kumar v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-08
- **Case number:** Service Single No. 6978 of 2015
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kumar-v-state-of-u-p-ors-43451
- **Pages:** 11

## Headnote

U.P. Intermediate Education Act 1921Section 16 E (II)-payment of salary-short
terms appointment-without creation of post
under Section-9-or continuance of such
teachers
beyond
academic
sessionappointment made by management-dehors to rules-liability can not be fastened
upon state exchequer-even on substantive
vacancy after 2002-can be appointed under
Section 16 of Act 1982 in view of regulation
21 of Act 1921.
Held: Para-15
In the case of an appointment against
temporary vacancy in terms of Section 16E(11) of the U.P. Intermediate Act, 1921 a
teacher may be entitled for salary but only
till the end of academic session and not
beyond
that,
that
too,
only
if
the
appointment
is
against
a
post
sanctioned/created as per Section 9 of the
U.P. High School and Intermediate Colleges
(Payment of Salaries of Teachers and other
Employees) Act 1971 (hereinafter referred
to as 'the Act 1971).
Case Law discussed:
(2004) 3 UPLBEC 2671; [2010 (28) LCD 1375];
2015 (33) LCD 2402

## Text

238
 INDIAN LAW REPORTS ALLAHABAD SERIES
third bail application, therefore, the applicant
is not entitled for bail.
5. Considering the facts and
circumstances of the case and without
expressing any opinion on the merits of
the case, I am not inclined to release the
applicant on bail.
6. Consequently, the prayer for bail of
the applicant Badey Lal is hereby refused
and the bail application is rejected.
7. However, the trial court is directed
to proceed with the trial and conclude the
same expeditiously preferably within a
period of four months from the date of
production of the certified copy of this order.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2016
BEFORE
THE HON'BLE RAJAN ROY, J.
Service Single No. 6978 of 2015
Connected with
Service Single No. 6979 of 2015, Service
Single No. 7302 of 2015, Service Single
No.7304 of 2015, Service Single No. 7326 of
2015, Service Single No. 7338 of 2015,
Service Single No.7341 of 2015, Service Single
No. 7344 of 2015, Service Single No. 7346 of
2015, Service Single No. 7347 of 2015,
Service Single No. 6809 of 2015, Service
Single No. 7424 of 2015, Service Single No.
7425 of 2015, Service Single No. 7434 of
2015, Service Single No.7435 of 2015, Service
Single No. 7436 of 2015, Service Single No.
7445 of 2015, Service Single No. 7446 of
2015, Service Single No. 7474 of 2015 and
Service Single No. 7558 of 2015
Shailendra Kumar
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sanjay Mishra
Counsel for the Respondents:
C.S.C., R.K.S. Suryavanshi
U.P. Intermediate Education Act 1921Section 16 E (II)-payment of salary-short
terms appointment-without creation of post
under Section-9-or continuance of such
teachers
beyond
academic
sessionappointment made by management-dehors to rules-liability can not be fastened
upon state exchequer-even on substantive
vacancy after 2002-can be appointed under
Section 16 of Act 1982 in view of regulation
21 of Act 1921.
Held: Para-15
In the case of an appointment against
temporary vacancy in terms of Section 16E(11) of the U.P. Intermediate Act, 1921 a
teacher may be entitled for salary but only
till the end of academic session and not
beyond
that,
that
too,
only
if
the
appointment
is
against
a
post
sanctioned/created as per Section 9 of the
U.P. High School and Intermediate Colleges
(Payment of Salaries of Teachers and other
Employees) Act 1971 (hereinafter referred
to as 'the Act 1971).
Case Law discussed:
(2004) 3 UPLBEC 2671; [2010 (28) LCD 1375];
2015 (33) LCD 2402
(Delivered by Hon'ble Rajan Roy, J.)
1. Heard learned counsel for the
parties.
2.
All these writ petitions involve
same issue relating to the entitlement of the
Committee of Management to make
appointment
of
teachers
against
substantive
vacancies
and
the
consequential entitlement of such teachers
to salary from the State-Exchequer.
1 All. Shailendra Kumar Vs. State of U.P. & Ors.
239
3.
In all these writ petitions, the
petitioners have been appointed by the
Management Committee of the educational
institution
which
are
recognized
and
allegedly aided by the State. The claim of the
petitioners herein is that in the absence of a
regularly selected candidate the teaching in
the institution could not be allowed to suffer,
therefore, in these compelling circumstances
the Managing Committee proceeded to make
appointments on ad-hoc temporary basis
against sanctioned post. They have placed
reliance on the judgment of Rakesh Chandra
Misra vs. State of U.P. and others reported in
(2004) 3 UPLBEC 2671 as upheld in the
case of Daya Shanker Mishra vs. District
Inspector of Schools and others reported in
[2010(28) LCD 1375] on the applicability of
Section 16-E(11). They have claimed that the
appointments are referable to the said
provision and therefore, they are entitled to
the payment of salary from the StateExchequer.
4. The issue involved herein is no
longer res-integra as the same has been
considered and decided by a Division
Bench of this Court on 17.12.2015 in the
case of Abhishek Tripathi vs. State of
U.P.
through
Secretary,
Secondary
Education, Lucknow and others wherein
their Lordships have held as under:-
"We hence, find merit in the contention
which has been urged on behalf of the State
that the general considerations which
weighed with the learned Single Judge in the
decision in Sanjay Singh (supra) cannot form
the foundation of a sustainable direction in
law, that the State can be issued a writ of
mandamus to pay salaries from the public
exchequer in respect of an appointment made
by the management against a substantive
vacancy on an ad-hoc basis. The scope and
ambit of the power of the management to fill
up temporary vacancies is clearly defined by
the provisions of Section 16-E (11) of the
Act of 1921 and its regulations. The
legislature in its wisdom has enacted the Act
of 1982 so as to provide in Section 16 that
notwithstanding anything contained in the
Act of 1921, an appointment shall be made
by
the
management
only
on
the
recommendation
of
the
Board.
The
legislature
further
specified
that
any
appointment made in contravention of the
provisions of sub- section (1) of Section 16
would be void. During the period when the
Removal of Difficulties Orders held the field,
which contained a provision for making ad
hoc appointments, the law was well settled
both by the Supreme Court and by this Court
that any appointment made in violation of the
provisions contained in those orders would
be void and that a direction for the payment
of salary could not be sustained on the basis
of such an appointment. After Section 18
was amended successively, a procedure was
provided
initially
for
making
ad-hoc
appointments but, as we have noticed,
Section 18, in its present form is confined
only to Principals and Headmasters. The
only source of power then for making
appointments of an ad-hoc nature is relatable
to the provisions of Section 16-E (11) of the
Act of 1921 read with regulations. Any
appointment which is de-hors the provisions
of the Act of 1921 and the regulations cannot
be countenanced in law. A mandamus cannot
be issued to the State for the payment of
salary where the appointment by its very
nature is in contravention of law and void.
There can be no dispute about the basic
principle of interpretation which was sought
to be emphasized by the petitioner that, in the
course of interpreting a statute, it would be
open to the Court to adopt an interpretation
which, while being in accord with the terms
of the statute, makes the statute workable.
But equally in this process, it would not be
240
 INDIAN LAW REPORTS ALLAHABAD SERIES
open to the Court to re-write statutory
provisions or to mandate an act such as the
payment of salary in respect of an
appointment which is made otherwise than in
accordance with the statutory provisions and
the rules. Article 21-A of the Constitution
upon which reliance has been placed by the
learned Single Judge in Sanjay Singh's case
(supra) mandates that the State shall provide
free and compulsory education to all children
between ages of six to fourteen in such
manner as the State may, by law, determine.
The law undoubtedly, has to be fair, just and
reasonable.
This Court in repeated judgments has
drawn the attention of the State to the need to
streamline the procedures in a line of
precedent from this Court culminating in the
judgment of the Full Bench in Santosh
Kumar Singh (supra). The observations of
this Court shall be taken up by the State with
a sense of the highest priority and with all
seriousness to ensure that a situation does not
emerge where vacancies of a substantive
nature are left unfilled over a long period of
time to the detriment of education. The State
Government must take up the matter with
necessary alacrity and immediacy.
For these reasons, we have come to
the conclusion that the view of the learned
Single Judge in Sanjay Singh's case
(supra) cannot be upheld as laying down
the correct position in law. The view of
the learned Single Judge shall stand,
accordingly, overruled. The judgment in
Pradeep Kumar (supra) is upheld subject
to
the
principles
which,
we
have
enunciated in this judgment.
The second issue which has been
referred for decision before the Division
Bench is the scope of Section 16-E (11)
when read in the context of Sections 16,
22, 32 and 33-E of the Act of 1982. We
have already dealt with the interpretation
of these provisions in the course of the
judgment.
The reference to the Division Bench
shall stand answered in the aforesaid terms.
The record of these proceedings shall now be
remitted back to the learned Single Judge,
according to roster, for disposal in the light
of the questions answered".
5.
In view of the above the
Managing Committee of a College does
not have any statutory authority to appoint
a teacher against a substantive vacancy
de-hors the provisions of Section 16 of
the
Act,
1982,
consequently
such
appointee is not entitled to salary from the
State-Exchequer.
6. As far as appointment under
Section 16-E (11) of the Intermediate Act,
1921 is concerned, the law in this regard
has already been explained and settled by
the Full Bench decision in the case of
Santosh Kumar (supra) as also in the
aforesaid Division Bench decision in the
case of Abhishek Tripathi (supra).
7. The relevant extracts of the Full
Bench decision in Santosh Kumar are
quoted herein below:-
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
1 All. Shailendra Kumar Vs. State of U.P. & Ors.
241
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) .................
(b) ................
(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)."
8.

In
view
of
the
above
pronouncement,
appointment
against
temporary vacancy in terms of Section 16-E
(11) of the Uttar Pradesh Intermediate
Education Act, 1921 (For short 'the
Intermediate Act, 1921') can be made only
till the end of academic session meaning
thereby such appointments can be made in
the academic session in which the vacancy
242
 INDIAN LAW REPORTS ALLAHABAD SERIES
arises thereby creating a corresponding need
for such appointment till the end of the
academic session and not beyond that.
Thus, appointment under Section 16-E (11)
of the U.P. Intermediate Act, 1921 can not
be made in a subsequent academic session.
9. Apart from an appointment
against a temporary vacancy caused on
account of leave of an incumbent for a
period
not
exceeding
six
months,
appointment in the case of a vacancy
caused
by
'death,
termination
or
otherwise' of an incumbent during an
educational session is also permissible
under Section 16-E(11) of the Act 1921,
with the rider that such appointments shall
not in any case continue beyond another
educational session during which such
appointment was made.
10. Purport of the word 'or otherwise'
has not been considered in any of the
pronouncements referred to hereinabove and
no such pronouncement has been placed
before the Court by either of the parties
wherein it may have been considered. As in
the present case, most of the vacancies have
arisen on account of retirement or promotion
of the incumbent, which is not specifically
mentioned in Section 16-E(11) of the Act,
therefore, it is necessary to consider the
purport and meaning of the words 'or
otherwise' so as to determine the applicability
of Rules 16-F (11) as has been pressed by the
petitioners.
Etymologically,
the
word
'otherwise' as per Black's Law Dictionary
means "in a different manner; in another
way; or in other ways". The word 'other' has
been defined in the same dictionary to mean
"different or distinct from that already
mentioned; additional, or further, "following
an enumeration of particular classes "other"
must be read as "other such like" and
includes only others of like kind and
character." The use of words 'death or
termination' is indicative of the fortuitous
circumstances giving rise to the vacancy
referred
in
the
provision.
In
the
pronouncements of this Court referred and
quoted hereinabove it has already been said
that the object of Section 16-E(11) 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, therefore, the aforesaid provision
caters to the need created by fortuitous
circumstances. The word 'Fortuitous' is
defined in Black's Law Dictionary to mean
"happening by chance or accident. Occurring
unexpectedly, or without known cause,
Accidental;
undesigned;
adventitious.
Resulting
from
unavoidable
physical
causes". Vacancies on account of Death and
Termination cannot be anticipated. They are
based on fortuitous circumstances.
11. The rule of Ejusdem generis is
that words of a general nature following
specific and particular words should be
construed as limited to things which are
of the same nature as those specified. This
rule is not to be applied where the context
manifests a contrary intention.
12. In the present case the context is the
provision contained in Section 16-E(11) of the
Act providing for filling up of temporary
vacancies and those of a fortuitous nature
other than the vacancies which are to be filled
up substantively under other provisions. Death
and termination also creates a substantive
vacancy but they are distinct from other
substantive vacancies as they are fortuitous.
They cannot be anticipated or known before
hand nor pre-determined, therefore, they have
been included under sub section 11 for being
filled up temporarily in keeping with the
object of the said provision.
1 All. Shailendra Kumar Vs. State of U.P. & Ors.
243
13. Applying the principle of Ejusdem
generis the general word "otherwise" is to
be understood by giving a restricted
meaning limited to matters of the same
class, category or genus as the specific
words
preceding
it.
The
principle
underlying this approach to statutory is that
the subsequent general words were only
intended to guard against some accidental
omission in the objects of the kind
mentioned earlier and were not intended to
extend to objects of a wholly different kind.
The specific words preceding the general
word "or otherwise" i.e. death and
termination can be placed under a common
category indicative of vacancies arising out
of fortuitous circumstances, therefore, the
general word "otherwise" following the
specific words death and termination has to
be read and understood as indicative of
other vacancies which may also arise
fortuitously such as resignation etc. If the
word "otherwise" is given a wide meaning
so as to include all other kinds of vacancies
it will render the very provision of section
16-E (11) nugatory being contrary to its
very object and the spirit underlying it. If
this was the intention then there was no
necessity of using the words death or
termination, therefore, it has to be
understood as referring to other vacancies of
similar nature i.e. fortuitous vacancies. This
is in consonance with the object of the
provision as explained by Full Bench of this
Court in the case of Santosh Kumar (Supra).
14. A vacancy created by retirement is
a substantive vacancy which is not fortuitous
in nature. It can be anticipated and in fact is
pre-determinable, therefore, against such
vacancies appointments can not be made
under Section 16-E(11) of the Act but can
only be made under Section 16 of the Act,
1982, afortori because of Regulations of 21
of the Regulations made under U.P.
Intermediate Act 1921 under which a teacher
who attains the age of superannuation in the
midst of an academic session is entitled to
continue till the end of the session. Likewise
a vacancy created by promotion can also not
be said to be purely fortuitous, as, it can, in a
given situation, very well be anticipated.
Moreover it does not create absence of a
teacher in the institution which is also one of
the consequences of a vacancy arising out of
death or termination. On promotion the
teacher is very much available in the
institution and he can also teach the lower
classes if the need arises, therefore, the said
vacancy is not covered by the aforesaid
provision of Section 16-E(11). The provision
does not evince any contrary intention so as
to allow substantive vacancies, which are not
of a fortuitous nature, to be filled under the
said provision.
15.
In the case of an appointment
against temporary vacancy in terms of
Section 16-E(11) of the U.P. Intermediate
Act, 1921 a teacher may be entitled for
salary but only till the end of academic
session and not beyond that, that too, only if
the
appointment
is
against
a
post
sanctioned/created as per Section 9 of the
U.P.
High
School
and
Intermediate
Colleges (Payment of Salaries of Teachers
and other Employees) Act 1971 (hereinafter
referred to as 'the Act 1971).
16.
As per the dictum of the Full
Bench decision of this Court in the Special
Appeal defective No. 673 of 2014 (State of
U.P. vs. Committee of Management, Sri
Sukhpal Intermediate College) no direction
for payment of salary to a teacher of an
Educational Institution governed by the
Payment of Salary Act, 1971 can be issued
by this Court unless he has been appointed
against a post sanctioned/created with
compliance of Section 9 thereof. The
244
 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant extracts of the aforesaid Full Bench
decision are quoted herein below:-
"In our view, the field of dispute in the
present case, is governed by the judgment of
the Full Bench in Gopal Dubey (supra). The
judgment in Gopal Dubey clearly holds that
the Act of 1971 operates in a field which is
distinct from the Act of 1921. The mere fact
that recognition has been granted to an
institution or, for that matter, for conducting
a new course or subject or for an additional
section, would not give rise to a presumption
of a financial sanction having been granted to
the creation of a post. A financial liability
cannot be foisted on the State to reimburse
the salary payable to the employee or the
teacher on the basis of such a presumption.
For the purpose of creating a new post of a
teacher or other employee, the management
has to obtain the prior approval of the
Director as required under Section 9 of the
Act 1971. Without the prior approval of the
Director, a new post cannot be sanctioned or
created. Section 9 is mandatory. This
principle in Gopal Dubey's case follows
specifically the judgment of the Supreme
Court in Gajadhar Prasad Verma's case
which was rendered while interpreting the
provisions of Section 9 of the Act of 1971.
The High Court cannot issue a direction
contrary to the mandate of Section 9. Orders
under Article 226 must conform to law and
cannot be contrary to the mandate of law. No
mandamus can issue - interim or final - for
the payment of salary by the state in the
absence of the prior approval of the Director.
For these reasons, we answer the
questions which have been framed for
reference to the Full Bench in the
following terms:
In the absence of a sanctioned post, a
direction cannot be issued to the state in the
exercise of powers under Article 226 of the
Constitution for the payment of salary. The
position in law, with which we respectfully
concur, is as laid down in the judgment of
the Full Bench in Gopal Dubey's case. The
judgment in Om Prakash Verma is consistent
with the law laid down in Gopal Dubey's
case. In the absence of a sanctioned post, the
High Court under Article 226 of the
Constitution would not be justified in issuing
a mandamus for the payment of salary,
particularly since a mandamus cannot lie in
the absence of a legal right, based on the
existence of a statutory duty."
17. When considered against the
aforesaid legal backdrop the factual
position which emerges in these bunch of
petitions and the alleged entitlement of
petitioners to salary from the State
Exchequers is as under:-
18.
As far as the Writ Petition No.
7474(SS) of 2015 is concerned, the
appointment having been made by the
Managing Committee de-hors the statutory
provisions and Rules made thereunder no
direction for Payment of salary can be
issued. Moreover from a bare reading of the
averments made in the writ petition it is
evident that though the matter pertaining to
creation of post in the institution in question
was referred by the Director to the State
Government but no post was created and
the appointment of the petitioner(s) was not
against any sanctioned post, therefore, in
view of another Full Bench decision of this
Court dated 12.05.2015 rendered in Special
Appeal Defective No. 673 of 2014, State of
U.P.
through
Secretary,
Secondary
Education and Ors. Vs. Committee of
Management, Sri Sukhpal Intermediate
College, Tirhut, Sultanpur and Ors., for this
reasons also no such direction for payment
of salary can be issued as has been prayed
for, in absence of the appointment against a
sanctioned post.
1 All. Shailendra Kumar Vs. State of U.P. & Ors.
245
19.
In Writ Petition No. 7436(SS) of
2015 the vacancy on account of leave
allegedly arose on 30.06.2012, however, the
advertisement for filling up the same was
issued on 26.09.2014 by the Committee of
Management. Clearly the appointment has not
been made as per the relevant statutory
provisions referred above. As far as,
application of Section 16-E(11) of the U.P.
Intermediate Act 1921 is concerned, the
vacancy
having
arisen
on
30.06.2012
appointment against the same could not have
been made towards the end of 2014 for the
reasons already mentioned herein above as
also indicated in the Full Bench decision in
Santosh Kumar Vs. State of U.P. and others
reported in 2015 (33) LCD 2402, therefore,
the said appointment is also de-hors the
statutory provisions and the rules made
thereunder
including
Section
16-E(11),
consequently, no direction for payment of
salary from the State Exchequer can be issued.
20. As far as the Writ Petition No.
7425(SS) of 2015 is concerned, the
appointment has not been made by the
Board in terms of statutory provisions nor
is it against a sanctioned post as has been
categorically mentioned in the order dated
17.12.2012 which is impugned in this writ
petition, therefore, no direction for the
payment of salary can be issued.
21.
In Writ Petition No. 6978(SS) of
2015 the vacancies are said to have arisen in
the year in 2011, 2013 and lastly on
30.06.2014 on account of retirement against
one of which the sole petitioner is said to
have been appointed on 22.06.2015, in
pursuance to which he submitted his joining
on 01.07.2015 i.e. in the next academic
session, therefore, clearly the appointment
can not be sustained under the Statutory
Provisions and rules made thereunder
including Section 16-E (11) of the U.P.
Intermediate Act 1921, as, even under the
latter provision such appointment could not
be made against a substantive vacancy
arising on account of retirement. Even if it
could the appointment should have been
given effect during the academic session in
which the vacancy arose whereas the
petitioner admittedly joined on 01.07.2015
i.e. after the end of academic session on
30.06.2015 as per the earlier definition of the
academic session, consequently, no direction
for payment of salary from the State
Exchequer can be issued.
22. In Writ petition No. 6979(SS) of
2015 a substantive vacancy is said to have
arisen on 01.07.2013 on account of
retirement of the incumbent against which
the Managing Committee is said to have
made the appointment as a short term
measure on 27.08.2015. Clearly the
appointment is de-hors the Statutory
Provisions and Rules made thereunder,
including Section 16-E (11) of the
Intermediate Act, 1921, therefore, no
direction for payment of salary from the
State Exchequer can be issued.
23.
In Writ Petition No. 7302(SS) of
2015 a substantive vacancy is said to have
arisen in June, 2015 on account of
retirement. The appointment has been made
by the Committee of Management on
28.10.2015, in pursuance to which the
petitioner is said to have joined on
02.11.2015. Clearly the appointment is dehors the Statutory Provisions and Rules
made thereunder, including Section 16-E
(11) of the Intermediate Act, 1921, therefore,
no direction for payment of salary from the
State Exchequer can be issued.
24. In Writ Petition No. 7304(SS) of
2015 a substantive vacancy is said to have
arisen in June, 2013 on account of
246
 INDIAN LAW REPORTS ALLAHABAD SERIES
retirement of the incumbent against which
the Managing Committee is said to have
made the appointment on 15.02.2015,
therefore, clearly the appointment is dehors the statutory provisions and rules
made thereunder including Section 16-E
(11) of the U.P. Intermediate Act 1921,
consequently, no direction for payment of
salary from the State Exchequer can be
issued.
25. In Writ Petition No. 7326(SS) of
2015 a substantive vacancy arose on
30.06.2012 on account of retirement of
the incumbent which was allegedly filled
up in 2014, therefore, such appointment
assuming for a moment it was made under
Section 16-E (11) of the Intermediate Act
1921, was also de-hors the said provisions
as per the law laid down by the Full
Bench in Santosh Kumar Singh's (supra),
consequently, no direction for payment of
salary can be issued.
26.
In Writ Petition No. 7338(SS) of
2015, a substantive vacancy arose on
30.06.2007 on account of retirement against
which the Committee of Management made
the alleged appointment in the year 2015,
therefore, clearly such appointment could not
have been made under Section 16-E (11) of
the Intermediate Act, 1921, consequently, no
direction for payment of salary can be issued.
27.
In Writ Petition No. 7341(SS) of
2015 a substantive vacancy occurred due to
retirement of the incumbent on 30.06.2012
against which the Managing Committee
allegedly made appointment in the year
2014, therefore, clearly the appointment was
de-hors the Statutory Provisions, including
Section 16-E (11) of the Intermediate Act
1921, consequently, no direction for payment
of salary from the State Exchequer can be
issued in this case also. .
28. In Writ Petition No. 7344(SS) of
2015 a substantive vacancy is said to have
occurred due to retirement of the
incumbent on 30.06.2010 against which
the Committee of Management made the
appointment in the year 2015, therefore,
clearly such appointment was also de-hors
the Statutory Provisions including Section
16-E (11) of the U.P. Intermediate Act
1921, therefore, no direction for payment
of salary from the State Exchequer can be
issued in this case also.
29. In Writ Petition No. 7346(SS) of
2015 a substantive vacancy arose on
02.12.2013 due to promotion of the
incumbent against which the Committee of
Management
made
the
appointment
allegedly on 25.06.2014 i.e. barely five days
prior to the end of the academic session and
in pursuance of such appointment the
petitioner, as stated in paragraph 13 of the
writ petition, joined on 02.07.2014 that is
after the commencement of the next
academic session. As, such appointment,
assuming it was under Section 16-E (11) of
the U.P. Intermediate Act 1921, can not spill
over to the next academic session and the
petitioner did not work during the academic
session which came to an end on 03.06.2014,
therefore, no direction for payment of salary
can be issued in this case also.
30. In Writ Petition No. 7347(SS) of
2015 a vacancy is alleged to have arisen
on 01.07.2014 on account of retirement
on
30.06.2014
and
the
Managing
Committee is said to have held the
selection and appointed the petitioner on
28.07.2014 in pursuance to which he is
said to have joined on 02.08.2014. Clearly
the appointment is de-hors the Statutory
Provisions and Rules made thereunder,
including Section 16-E (11) of the
Intermediate Act, 1921, therefore, no
1 All. Shailendra Kumar Vs. State of U.P. & Ors.
247
direction for payment of salary from the
State Exchequer can be issued.
31. In Writ Petition No. 6809(SS) of
2015 there are two petitioners and it has
been
alleged
that
three
posts
fell
substantively vacant due to retirement of
the
incumbents
on
30.06.2011,
30.06.2013 and 30.06.2014. Against the
aforesaid, posts were advertised on
05.06.2016 i.e. barely 25 days prior to the
end of the academic session and the
appointment letters are said to have been
issued on 22.06.2015. Apart from the fact
that a substantive vacancy consequent to
retirement could not be filled under
Section 16-E(11), the petitioners as per
their own admission in paragraph 9 of the
writ petition joined on 01.07.2015 i.e. in
the next academic session, therefore,
clearly their case is not covered by
Section 16-E (11) of the U.P. Intermediate
Act 1921, as under the said provisions
appointments and joining should have
taken place in the same academic session
and could continue only till the end of
such academic session in which the
vacancy had arisen, consequently, no
direction for payment of salary can be
issued in this case also.
32. In Writ Petition No. 7424(SS) of
2015 a substantive vacancy is said to have
arisen on 10.02.2015 on account of
promotion which was advertised on
17.03.2015 against which the Managing
Committee made the appointment on
10.04.2015 in pursuance to which the
petitioner is said to have joined on
18.04.2015. For the reasons already
mentioned in the earlier part of the
judgment a vacancy arising out of
retirement cannot be filled under Section
16-W(11) of the Act, therefore, the
appointment of the petitioner is not in
accordance with statutory provisions and
the Rules made thereunder including
under Section 16-E(11) as such no
direction for payment of salary from the
State-Exchequer can be issued.
33. In Writ Petition No. 7434(SS) of
2015, a substantive vacancy is said to
have arisen on 01.07.2013 due to
retirement against which the Managing
Committee is said to have made the
appointment on 16.01.2015, therefore,
clearly such appointment is de-hors the
Statutory
Provisions
and
the
rules
including Section 16-E (11) of the U.P.
Intermediate Act 1921, consequently, no
direction for salary can be issued in this
case also.
34. In Writ Petition No. 7435(SS) of
2015, a substantive vacancy arose on
01.07.2014 due to retirement against which
the Managing Committee made the
appointment on 10.01.2015 i.e. during the
academic session 2014-15 as per the
definition
of
the
academic
session
prevalent at that time. Clearly the
appointment having not been made under
Section 16-E(11) 1982 as such vacancies
are not amenable to the provisions of
Section 16-E(11) of the Act, no direction
for payment of salary from the StateExchequer can be issued.
35.
In Writ Petition No. 7445(SS) of
2015, a substantive vacancy is said to have
arisen
on
account
of
promotion
on
15.05.2013 against which the Managing
Committee is said to have made the
appointment
on
15.01.2015,
therefore,
clearly the appointment is de-hors the
statutory
provisions
and
rules
made
thereunder, including Section 16-E (11) of
the Intermediate Act 1921, consequently, no
direction for payment of salary can be issued.
248
 INDIAN LAW REPORTS ALLAHABAD SERIES
36.
In Writ Petition No. 7446(SS) of
2015 a vacancy is said to have occurred
substantively on 30.06.2015 on account of
retirement against which the appointment has
been made by the Committee of Management
on
04.07.2015,
therefore,
clearly
the
appointment, if any, is de-hors the statutory
provisions and the rules made thereunder,
including Section 16-E (11) of the U.P.
Intermediate Act, 1921, consequently, no
direction for payment of salary from the State
Exchequer can be issued.
37.
In Writ Petition No. 7558(SS) of
2015 a challenge has been made to the
Government
Order
dated
10.05.2002
restraining the institutions from making
appointments against the vacancies arisen on
30.06.2002 with the stipulation that such
appointments can only be made by the Board.
In this case, the vacancies are said to have
arisen on 30.06.1999, 30.06.2002 and
30.06.2007 on account of promotion and
retirement of the incumbent. The writ petition
has been filed in the year 2015. Against the
aforesaid vacancies it is alleged that the
appointments were made in September, 2010.
Clearly, the appointments, if any, made by the
Committee of Management was de-hors the
Statutory
Provisions
and
rules
made
thereunder including Section 16-E (11) of the
U.P. Intermediate Act, 1921, therefore, no
direction for payment of salary can be issued
in this case also. The Government Order dated
10.05.2002 has to be read and understood in
the light of pronouncement referred herein
above.
38. All the Writ Petitions are
disposed of in the aforesaid terms.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2016
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Writ-C No. 7078 of 2016
C/M Madhav U.M. Vidyalaya & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Chandra Jeet Yadav, Anjali
Counsel for the Respondents:
CSC
Constitution of India, Art.-226-Writ to
declare-the provisions of Section 5 of
Payment of Salaries Act 1971-Ultra Viresbeing contrary to Section 16-A (7) of U.P.
Intermediate Education Act 1921-heldboth provisions are state legislation-to
read harmoniously-no least conflictionpetition dismissed.
Held: Para-6
The Payment of Salaries Act is an Act to
regulate the payment of salaries to
teachers and employees of High School
and Intermediate Colleges receiving State
aid. The first proviso to Section 5(1)
empowers the Inspector to order single
operation of the bank account in the
circumstances
which
are
referred
to
therein. Section 6 (3) empowers the
Regional Deputy Director to supersede the
Management. In that event the Authorised
Controller is appointed, upon which he
shall
exercise
all
powers
of
the
Management including single operation of
the bank account. There is, thus, no
conflict of jurisdiction much less any
conflict between the statutory provisions.
Both sets of provisions are of State
legislation
and
have
to
be
read
harmoniously so as to give full effect to the
statutory scheme.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, J.)