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

- **Citation:** (2016) 3 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-08
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kumar-v-state-of-u-p-ors-43516
- **Pages:** 13

## Headnote

Selection Board claimed entitlement to salary from the State Exchequer, relying upon Section 16-E(11)
of the U.P. Intermediate Education Act, 1921.
154 INDIAN LAW REPORTS ALLAHABAD SERIES

Appointment of Teachers - Held that the issue is no longer res integra. In view of the Division
Bench judgment in Abhishek Tripathi v. State of U.P. and the Full Bench judgments in Santosh Kumar
Singh and Gopal Dubey, the Committee of Management has no statutory authority to make ad-hoc
appointments against substantive vacancies de-hors Section 16 of the Act of 1982. Any such
appointment is void and confers no right to salary from the State Exchequer.

Section 16-E(11), U.P. Intermediate Education Act, 1921 - Section 16-E(11) of the Act of 1921
permits appointments only against temporary vacancies of a fortuitous nature, such as leave
(not exceeding six months), death, termination or similar unforeseen contingencies arising during an
academic session, and such appointments cannot continue beyond the end of that session.
Vacancies arising due to retirement or promotion, being foreseeable and substantive in nature, do
not fall within the ambit of Section 16-E(11).

Scope and limitations - The expression "or otherwise" occurring in Section 16-E(11) must be
construed ejusdem generis with "death" and "termination", and is confined to vacancies arising out of
fortuitous circumstances such as resignation, and not to anticipated vacancies like retirement or
promotion.

Sanctioned Post under Section 9, Payment of Salaries Act, 1971 - Further held that no
direction for payment of salary can be issued unless the appointment is made against a sanctioned
post created with prior approval under Section 9 of the U.P. High School and Intermediate Colleges
(Payment of Salaries of Teachers and other Employees) Act, 1971. Recognition of an institution or
existence of a vacancy does not imply financial sanction.

Life imprisonment.- that conviction under Section 302 read with Section 34 IPC is justified where
the accused acted conjointly with common intention and inflicted fatal injuries resulting in death on
the spot.

Not maintainable - Appointments made after the end of the academic session in which the vacancy
arose, or appointments spilling over into a subsequent session, are wholly illegal and unenforceable.

All writ petitions dismissed; no mandamus for payment of salary could be issued.

## Text

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3 All. Shailendra Kumar Vs State Of U.P. & Ors.
153
be made. This contention in the counter affidavit is not sustainable in view of the
decision of this Court referred herein above.

8. In these circumstance, the stand of the opposite parties is against the settled legal
position. No other objection having been raised by the opposite parties and considering the
fact that the death-cum-retirement dues have also been paid to the petitioner which could
only have been done if the petitioner's husband had died, goes to show that even the said
benefits have been released by the opposite parties treating her husband to be missing for
more than seven years as also accepting the presumption of civil death in this regard under
Section 108 of the Indian Evidence Act otherwise the said benefits could not have been
extended. No further declaration is required from a Court as the ingredients of Section 108
are satisfied.

9. In these circumstance, the opposite parties are directed to consider and appoint the
petitioner on Class-IV post under the Dying-in-Harness Rules, 1974 keeping in mind the
observations made herein above, within a period of six weeks from the date a certified copy
of this order is submitted ignoring the letter dated 01.07.2015 contained in Annexure No. 7
to the writ petition or any other letter issued on similar lines. Consequences shall follow as
per law.

10. With the aforesaid observations, the writ petition is disposed of.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No. - 6978 of 2015
&
Connected With Other Cases

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

Aided Educational Institutions - Teachers appointed by Committees of Management of recognized
and aided Intermediate Colleges against substantive vacancies without recommendation of the
Selection Board claimed entitlement to salary from the State Exchequer, relying upon Section 16-E(11)
of the U.P. Intermediate Education Act, 1921.
154 INDIAN LAW REPORTS ALLAHABAD SERIES

Appointment of Teachers - Held that the issue is no longer res integra. In view of the Division
Bench judgment in Abhishek Tripathi v. State of U.P. and the Full Bench judgments in Santosh Kumar
Singh and Gopal Dubey, the Committee of Management has no statutory authority to make ad-hoc
appointments against substantive vacancies de-hors Section 16 of the Act of 1982. Any such
appointment is void and confers no right to salary from the State Exchequer.

Section 16-E(11), U.P. Intermediate Education Act, 1921 - Section 16-E(11) of the Act of 1921
permits appointments only against temporary vacancies of a fortuitous nature, such as leave
(not exceeding six months), death, termination or similar unforeseen contingencies arising during an
academic session, and such appointments cannot continue beyond the end of that session.
Vacancies arising due to retirement or promotion, being foreseeable and substantive in nature, do
not fall within the ambit of Section 16-E(11).

Scope and limitations - The expression "or otherwise" occurring in Section 16-E(11) must be
construed ejusdem generis with "death" and "termination", and is confined to vacancies arising out of
fortuitous circumstances such as resignation, and not to anticipated vacancies like retirement or
promotion.

Sanctioned Post under Section 9, Payment of Salaries Act, 1971 - Further held that no
direction for payment of salary can be issued unless the appointment is made against a sanctioned
post created with prior approval under Section 9 of the U.P. High School and Intermediate Colleges
(Payment of Salaries of Teachers and other Employees) Act, 1971. Recognition of an institution or
existence of a vacancy does not imply financial sanction.

Life imprisonment.- that conviction under Section 302 read with Section 34 IPC is justified where
the accused acted conjointly with common intention and inflicted fatal injuries resulting in death on
the spot.

Not maintainable - Appointments made after the end of the academic session in which the vacancy
arose, or appointments spilling over into a subsequent session, are wholly illegal and unenforceable.

All writ petitions dismissed; no mandamus for payment of salary could be issued.

(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.

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 adhoc 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
3 All. Shailendra Kumar Vs State Of U.P. & Ors.
155
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 State-Exchequer.

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 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.
156 INDIAN LAW REPORTS ALLAHABAD SERIES
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,
3 All. Shailendra Kumar Vs State Of U.P. & Ors.
157
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) .................
(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
158 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.
3 All. Shailendra Kumar Vs State Of U.P. & Ors.
159

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 predetermined, therefore, they have been included under sub section 11 for being filled up
temporarily in keeping with the object of the said provision.

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.
160 INDIAN LAW REPORTS ALLAHABAD SERIES

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).

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 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."
3 All. Shailendra Kumar Vs State Of U.P. & Ors.
161

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.

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 16E(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
162 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.

24. In Writ Petition No. 7304(SS) of 2015 a substantive vacancy is said to have arisen
in June, 2013 on account of 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 de-hors 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.
3 All. Shailendra Kumar Vs State Of U.P. & Ors.
163

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 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.
164 INDIAN LAW REPORTS ALLAHABAD SERIES

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 State-Exchequer 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.

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.
3 All. C/M, Hindu Model Junior High School Vs Rakesh Kumar Gupta & Anr
165
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2015

BEFORE

THE HON'BLE ARUN TANDON, J.
THE HON'BLE MRS. SUNITA AGARWAL, J.

Special Appeal No. - 1622 of 2013

C/M, Hindu Model Junior High School ...Appellant
Versus
Rakesh Kumar Gupta & Anr ...Respondents

Counsel for the Appellant:
V.P. Rai

Counsel for the Respondents:
Shyam Krishna Gupta, Raj Kumar Khanna

Education Law- Recognised Basic Schools-Clerk/Ministerial Staff-Appointment prior to
and after 1984 Rules

Payment of salary from State exchequer- that payment of salary from the State exchequer can
be directed only when the employee establishes that his appointment was made strictly in accordance
with the statutory rules applicable at the time of appointment and not de-hors the same.

Appointment prior to and after 1984 Rules- hat where appointment to the post of clerk prior to
commencement of the 1984 Rules was governed by the Basic Education Code, non-compliance of
mandatory requirements such as advertisement of vacancy, constitution of selection committee with
nominee of the Basic Shiksha Adhikari, approval of the Basic Shiksha Adhikari and possession of
prescribed typing qualification renders the appointment illegal.