# Shailja Tripathi v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Writ-A No. 31507 of 2014
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailja-tripathi-v-state-of-u-p-ors-50097
- **Pages:** 4

## Headnote

C.S.C., Sri Mrigraj Singh, Sri Santosh
Kumar Yadav

A. An Assistant Teacher of the institution
had expired while in service-on the
approval of BSA an advertisement was
issued and the petitioner was selectedLater, referring to G.O. dated 20.01.2003,
BSA placed all the appointment/approval
in
abeyance-Since
the
procedure
for
selection is provided under the statutory
rules of U.P. Recognized Basic Schools
(Junior High School Recruitment and
Conditions of Service of Teachers) Rules,
1978-Once the power is exercised by the
State for framing statutory rules, it cannot
exercise any executive power, therefore,
the Government Order dated 20.01.2003
as non-est being contrary to the statutory
rules-Thus, once an approval is duly
granted by BSA by his communication
dated 20/21.02.2004, no power to review
242 INDIAN LAW REPORTS ALLAHABAD SERIES
the said order on merits is vested in later
BSA, the executive authorities do not have
any power to review an order passed by
an earlier authority, except for one limited
ground of fraud etc. -The matter is
decided by BSA after a gap of around 10
years-Such a dispute was required to be
settled when earlier approval was granted
-Such an irregularity cannot cost an
appointment which is approved around 10
years back- Thus, the impugned order is
illegal.(Para 1 to 14)

The writ petition is allowed. (E-6)
List of Cases cited:

## Text

4 All. Shailja Tripathi Vs. State of U.P. & Ors.
241
against the petitioner is that the petitioner
delayed in forwarding of the illegal
unauthorized construction with a gap of 14
days in respect of one of the charges. Other
than the said, there is no material to
substantiate the charges levelled against the
petitioner and thus, realizing the limited
scope of powers under Article 226 of
Constitution of India, this Court is of the
firm view that the charges levelled against
the petitioner have not been substantiated
by any evidence whatsoever and to that
extent, the same are perverse.

92. The order of the disciplinary
authority is completely non-speaking order
and does not satisfy the test of Article 14 of
the Constitution of India. The appellate order
has gone on a complete tangent proceeding to
hold the petitioner guilty placing reliance on
the definition of the word ''supervisor' or ''to
supervise' given in the dictionary in complete
ignorance of the office memorandums and
thus, the same is wholly perverse and
arbitrary. There is no finding in respect of the
second limb of each of the charges as against
the petitioner and I have already held and
rejected the argument of the respondents that
the charges levelled in the second limb of
each of the charge does not relate to the
petitioner and relates to the property owner,
thus, on all the grounds as referred above, the
only charge levelled against the petitioner and
established was that the petitioner took a time
of 14 days in forwarding the report of the
unauthorized construction to the Chief
Executive Officer which can in the worst case
be called as ''negligence' and in any way does
not qualify to be a ''misconduct' warranting
such extreme punishment as has been
imposed against the petitioner.

93. Thus, for all the reasons recorded
above, the writ petition deserves to be
allowed and is accordingly allowed.

94. Order of appeal dated 01.06.2021,
punishment order dated 14.08.2019 and the
Board resolution dated 14.08.2019 are set
aside with direction to reinstate the
petitioner in the services alongwith all
consequential benefits on the post on which
he was working at the time of removal.
----------
(2023) 4 ILRA 241
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 31507 of 2014

Shailja Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Mrigraj Singh, Sri Santosh
Kumar Yadav

A. An Assistant Teacher of the institution
had expired while in service-on the
approval of BSA an advertisement was
issued and the petitioner was selectedLater, referring to G.O. dated 20.01.2003,
BSA placed all the appointment/approval
in
abeyance-Since
the
procedure
for
selection is provided under the statutory
rules of U.P. Recognized Basic Schools
(Junior High School Recruitment and
Conditions of Service of Teachers) Rules,
1978-Once the power is exercised by the
State for framing statutory rules, it cannot
exercise any executive power, therefore,
the Government Order dated 20.01.2003
as non-est being contrary to the statutory
rules-Thus, once an approval is duly
granted by BSA by his communication
dated 20/21.02.2004, no power to review
242 INDIAN LAW REPORTS ALLAHABAD SERIES
the said order on merits is vested in later
BSA, the executive authorities do not have
any power to review an order passed by
an earlier authority, except for one limited
ground of fraud etc. -The matter is
decided by BSA after a gap of around 10
years-Such a dispute was required to be
settled when earlier approval was granted
-Such an irregularity cannot cost an
appointment which is approved around 10
years back- Thus, the impugned order is
illegal.(Para 1 to 14)

The writ petition is allowed. (E-6)
List of Cases cited:

1. UOI Vs Soma Vishwanath (1988) AIR SC
2255
2. Anurag Mehrotra Vs St. of U.P. & ors. W.P.
No. 3425 of 2019

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Siddharth
Khare, learned counsel for the petitioner,
Sri Mrigraj Singh, learned counsel for
respondent no.2 and the learned Standing
Counsel for the State.

2. The petitioner has approached this
Court
challenging
the
order
dated
12.03.2014 passed by Basic Shiksha
Adhikari, Jaunpur whereby the B.S.A.,
Jaunpur has refused to provide approval to
the appointment of the petitioner.

3. The facts of the case are that on
03.12.2003 an Assistant Teacher of the
institution had expired while in service. On
the approval of Basic Shiksha Adhikari, an
advertisement was issued on 29.01.2004
inviting applications from eligible persons.
The Basic Shiksha Adhikari has passed an
order
on 15.02.2004
authorizing
the
Assistant
Basic
Shiksha
Adhikari,
Maharajganj/Badlapur to participate as a
member of Selection Committee in the
selection process held on 18.02.2004. After
selection of the petitioner, all papers were
submitted to the B.S.A. for approval, who
accorded
approval
on
20/21.02.2004,
making it effective from date of joining. On
22.02.2004 appointment letter was issued
to petitioner who joined on 25.02.2004.
However, salary bills submitted by the
management with regard to petitioner
remained pending.

4. On 11.06.2004, Basic Shiksha
Adhikari, referring to Government Order
dated 20.01.2003, sent letter to all the
Managemnt/Head of all recognized and
aided Junior High Schools, whereby he
placed all the appointments/approval in
abeyance. It also refers to circular letter
dated 21.05.2004 of Regional Assistant
Director of Education prohibiting payment
of salary to appointments made without
sanctioned post and further required every
institution to submit all papers pertaining to
selection/appointment made subsequent to
Government Order dated 20.01.2003 for
inquiry. The Government Order dated
20.01.2003 required prior permission of the
State Government for making appointment
for vacancies caused by the retirement.
After giving an opportunity of hearing an
order was ultimately passed by the B.S.A.
on 12.03.2014 revoking the approval of
B.S.A. dated 20/21.01.2004. It further held
that petitioner was not entitled to receive
any salary from the government grants. The
said
order,
though,
was
passed
on
12.03.2014 but was dispensed by registered
post on 18.08.2014 and is now under
challenge in the present writ petition.

5. Learned counsel for the petitioner
challenges the order on facts as well as on
short
legal
submission.
The
legal
submission of learned Senior Advocate is
4 All. Shailja Tripathi Vs. State of U.P. & Ors.
243
that since the procedure for selection is
provided under the statutory rules of U.P.
Recognized Basic Schools (Junior High
School Recruitment and Conditions of
Service
of
Teachers)
Rules,
1978.
Therefore, once the power is exercised by
the State for framing statutory rules, it
cannot exercise any executive power with
regard to the same subject by issuing
executive
order.
Therefore,
the
Government Order dated 20.01.2003 as
non-est being contrary to the statutory
rules.

6. On merits, learned Senior Advocate
for the petitioner submits that once an
approval is duly granted by B.S.A. by his
communication dated 20/21.02.2004, no
power to review the said order on merits is
vested in later B.S.A. The executive
authorities do not have any power to review
an order passed by an earlier authority,
except for on limited ground of fraud etc.
Next
submission
of
learned
Senior
Advocate is that the impugned order even
on merits is illegal as the defects pointed
out in the same are presumptive.

7. On the other hand, learned counsels
for the respondents support the impugned
order and state that the impugned order
rightly refuses to grant approval to the
appointment of the petitioner.

8. So far as the Government Order
dated 20.01.2003 is concerned, the law is
well settled that once the State has
exercised its legislative power with
regard to any subject by framing statutory
rules, it cannot exercise its executive
power. Suffice is to refer to judgment
passed in case of 'Union of India Vs.
S.S. Soma Vishwanath' reported in AIR
1988 SC 2255 in which the Supreme
Court held:-

"It is well settled that the norms
regarding recruitment and promotion of the
officer belong to the Civil Service can be
laid down either by a law made by the
appropriate Legislature or by the rules
made under the proviso to Article 309 of
the Constitution of India or by means of
executive instructions issued in Article 73
of the Constitution of India in the case of
Civil Services in the Government of India
and under Article 162 of the Constitution of
India in the case of Civil Services in the
State Governments, if there is a conflict
between the executive Instructions and the
rules made under the proviso to Article
309 of the Constitution of India the rule
made under the proviso to Article 309 of
the Constitution of India prevail and if
there is a conflict between the rules made
under the proviso to Article 309 of the
Constitution of India and the law made by
the appropriate Legislature, the latter
prevails." (emphasis added)

9. The aforesaid judgment is later also
followed by this Court in case of 'Anurag
Mehrotra Vs. State of U.P. and Others';
Writ Petition No.3425 (S/S) of 2019. In
view of the aforesaid, the Government
Order dated 20.01.2003 is directly in teeth
of statutory rules. The State cannot usurp
the power already vested in the authority by
statutory rules. Therefore, there was no
occasion to revisit the approval of the
B.S.A. dated 20/21.02.2004 which granted
appointment to the petitioner.

10. Now, coming to the merits of the
case, the impugned order states that the
vacancy is said to have arisen on account of
death of late Sabhajeet Pathak, Assistant
Teacher while in service on 31.12.2003. In
judgment
of
the
High
Court
dated
07.08.2013 passed in Writ Petition No.
41896 of 2005, it is noted that with the
244 INDIAN LAW REPORTS ALLAHABAD SERIES
approval of the District Basic Education
Officer the post was advertised on
11.07.2002
and
it
found
that
the
appointment was illegal. The said fact
appears to be wrongly noted in the earlier
judgment of this Court as the newspaper
'Tarun Mitra' dated 01.02.2004 is filed
along with present writ petition and the
same was also submitted before the B.S.A.
Ignoring the actual document, the B.S.A.
was not supposed to refer to a date in the
order. Further in the impugned order it is
claimed that the management/head master
was asked to provide notarized affidavit
along with all the documents. There is no
reason for initiating a different procedure in
the present case which is not followed in
other matters. All the documents were in
the office of B.S.A. since the initial stage
when the earlier B.S.A. had granted
approval by order dated 20/21.02.2004.
Even otherwise, it is not in dispute that all
the documents were present before the
B.S.A. while considering the present
matter. Hence, there was no occasion to ask
for an affidavit and to refuse to believe the
document only on the said ground. Next
ground taken in the impugned order for
rejecting the case of petitioner is that in
furtherance of order dated 22.07.2013
passed in Writ Petition No.46110 of 2005
one
Sevantak
Pathak
was
granted
appointment under Dying in Harness Rules,
1974. Thus, there are no further vacancy
available to accommodate the petitioner.

11. It goes without saying that right of
petitioner on the basis of her initial
appointment since 20/21.02.2004 when
earlier B.S.A. granted approval to the
petitioner and in furtherance of which
petitioner joined on 25.02.2004. Her rights
cannot be disturbed by any appointment or
order passed with regard to any other
person. Even otherwise, an appointment
under Dying in Harness Rules, 1974 can
also be accommodated on a supernumerary
post. The same cannot impact rights of
petitioner. The last ground is that the
publication
was
made
only
in
one
newspaper. Along with the record only one
newspaper was submitted. The matter is
decided by B.S.A. after a gap of around 10
years. Such a dispute was required to be
settled when earlier approval was granted
on 20/21.02.2004. Such an irregularity
cannot cost an appointment which is
approved around 10 years back.

12. Thus, the impugned order dated
12.03.2004 cannot stand and is set aside.

13. Respondents are directed to pay
salary of the petitioner from the date of his
initial joining 25.02.2004 along with
interest of 6% within a period of three
months from the date a certified copy of
this order is placed before it. They are also
directed to ensure regular salary to
petitioner in future.

14. With the aforesaid, the writ
petition stands allowed.
----------
(2023) 4 ILRA 244
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.04.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 31682 of 2018

Vishal Kumar Balmiki ...Petitioner
Versus
Punjab National Bank & Ors.
 ...Respondents

Counsel for the Petitioner:
Sangam Lal Pandey