# Sher Singh v. Union of India and others

- **Citation:** (2002) 3 ILRA 899
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-15
- **Case number:** Special Appeal No. 122 of 2001
- **Bench:** S.K. Sen, C.J. R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sher-singh-v-union-of-india-and-others-40033
- **Pages:** 8

## Headnote

Army Act 1950 Section 56- Dismissal
from service- False accusations against
elegant
employee-
neither
from
summary court martial proceeding nor
the sentence awarded-pointed out any
finding regarding false accusation made
was knowing by- punishment can not be
awarded.

Held Para 15

The condition precedent for making out
of an offence section 56 (a) is that
person making false accusation knows or
has reason to believe such accusation to
be false, it does provide that every false
accusation which is made unknowingly
or under some mistake to be an offence
unless it is proved that the false
accusation has been made knowingly or
having reason to believe such accusation
to be false, the offence cannot be said to
have
been
committed.
From
the
proceedings
of
the
summary
Court
martial and the sentence awarded, it
does not appear that any finding has
been recorded by the Summary Court
Martial that the appellant writ petitioner
was making false accusation knowingly
or having reason to believe it to be false.
Thus the punishment could not have
been awarded at all.
Case law discussed:
AIR 1987 SC-2386
AIR 1992 SC-417
1988 UPLBEC-783
AIR 1997 SC-2386
AIR 1982 SC-1413
J.T. 1997 (4) SC-8
AIR 1988 SC-705
J.T. 1993 (5) SC-154

## Text

http://www.allahabadhighcourt.nic.in
3 All] Sher Singh V. Union of India and others 899
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 122 of 2001

Sher Singh

...Appellant
Versus
Union of India and others ...Respondents

Counsel for the Appellant:
Sri Ajay Bhanot

Counsel for the Respondents:
Sri S.N. Srivastava
Sri Narendra Prasad Shukla
S.C.

Army Act 1950 Section 56- Dismissal
from service- False accusations against
elegant
employee-
neither
from
summary court martial proceeding nor
the sentence awarded-pointed out any
finding regarding false accusation made
was knowing by- punishment can not be
awarded.

Held Para 15

The condition precedent for making out
of an offence section 56 (a) is that
person making false accusation knows or
has reason to believe such accusation to
be false, it does provide that every false
accusation which is made unknowingly
or under some mistake to be an offence
unless it is proved that the false
accusation has been made knowingly or
having reason to believe such accusation
to be false, the offence cannot be said to
have
been
committed.
From
the
proceedings
of
the
summary
Court
martial and the sentence awarded, it
does not appear that any finding has
been recorded by the Summary Court
Martial that the appellant writ petitioner
was making false accusation knowingly
or having reason to believe it to be false.
Thus the punishment could not have
been awarded at all.
Case law discussed:
AIR 1987 SC-2386
AIR 1992 SC-417
1988 UPLBEC-783
AIR 1997 SC-2386
AIR 1982 SC-1413
J.T. 1997 (4) SC-8
AIR 1988 SC-705
J.T. 1993 (5) SC-154

(Delivered by Hon'ble R.K. Agrawal, J.)

1. The present Special Appeal has
been filed against the judgment and order
dated 10.01.2001 passed by the learned
Single Judge in C.M. Writ Petition No.
35346 of 1997 whereby the writ petition
has been dismissed.

Briefly stated the facts giving rise to
the present special appeal are as follows:

2. According to the appellant writ
petitioner he was enrolled in the Indian
Army on 25.2.1984. He was shifted to
Holding Battery Depot Regiment Nasik
Road Camp on 12.6.1996 and thereafter
to R.P. Section Depot on 3.7.1996 on
medical
grounds.
According
to
the
appellant
writ
petitioner
he
was
admonished by one Shri Sulkhan Singh,
R.P. Hawaldar on 4.7.1996 and was asked
to work under him. It is alleged that he
was required to give a Bottle of Rum
(wine) as bribe otherwise he was to face
dire consequences. The appellant writ
petitioner did not oblige and instead
reported the matter to the Commanding
Officer
vide
representation
dated
16.7.1996. An inquiry was initiated but
the appellant writ petitioner was not
associated and he was not afforded any
opportunity to examine or cross examine
the witnesses and summary Court Martial
http://www.allahabadhighcourt.nic.in
900 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
was held and the appellant writ petitioner
was dismissed from service vide order
dated
28.10.1996
passed
by
the
Commanding Officer, Artillery Regiment,
Nasik Road. The appellant writ petitioner
preferred a departmental appeal before the
General Officer Commanding in Chief,
Southern Command, Poona, Maharastra
which was sent by registered post on
24.12.1996. When the appeal was not
being decided, he approached the Court
by means of a writ petition which was
disposed of with the direction to the
concerned authority to decide the appeal
within two months. The appeal was
dismissed vide order dated 25.6.1997.
Both the orders of dismissal dated
28.10.1996 and the order dated 25.6.1997
rejecting his appeal was challenged by the
appellant writ petitioner before this Court
by means of a C.M. Writ Petition No.
35346 of 1997 which has been dismissed
by
the
learned
Single
Judge
vide
judgment and order dated 10.01.2001
which is under challenge in the present
Special Appeal.

3. We have heard Shri Ajai Bhanot,
learned counsel for the appellant writ
petitioner and Shri Narendra Prasad
Shukla,
learned
Standing
Counsel
appearing for the respondents. The
learned counsel for the appellant writ
petitioner submitted that the summary
Court
Martial
proceedings
were
in
flagrant violation of mandatory provisions
of Army Act, 1950 (hereinafter referred
as the Act) and the Army Rules, 1954
(hereinafter referred as Rules) which went
to the very root of the constitution and the
proceedings of the summary Court
Martial were enough to vitiate the entire
proceedings including the punishment
imposed there under. He further submitted
that the punishment awarded to the
appellant writ petitioner was strikingly
disproportionate
to
the
misconduct
alleged on the part of the appellant writ
petitioner and it should shock the
conscience of this Court. The following
charge was framed:

"Making a false accusation against a
person subject to the Army Act knowing
such accusation to be false.

4. In that he, at Nasik Road Camp
on
16.7.1996
made
written
false
accusation
to
Commanding
Officer
against
Number
14348093-M
Lance
Hawaldar
(General
Duties)
Sulkhan
Singh, Regimental Police stating that he
takes Rs.50/- (Rupees Fifty Only), or a
bottle of Rum from new comers and
Rs.100/- (Rupees Hundred Only) from
Regimental Staff for any default well
knowing the said statement to be false."

Which shows that the summary Court
Martial proceedings were initiated against
the appellant writ petitioner to check the
guilt in respect of the aforesaid offence
which resulted in the dismissal. The
charge was not so grave so as to warrant
the extreme penalty of dismissal from
service. He relied upon a decision of the
Hon'ble Supreme Court in the case of
Ranjeet Thakur Versus Union of India
reported in A.I.R. 1987 S.C. 2386 and ExNaik Sardar Singh Vs. Union of India
and others reported in A.I.R. 1992
S.C.417. He further submitted that the
mandatory provisions were violated and
procedural impropriety were committed in
the Court martial proceedings which was
observed more in breach rather than in
adherence. He further submitted that Rule
33 (7) and Rule 34 of the Army Rules,
1954 which provided for right of accused
to prepare defense and warning of
http://www.allahabadhighcourt.nic.in
3 All] Sher Singh V. Union of India and others 901
accused for trial was not complied with
neither any charge sheet was served nor
the summary of evidence was given to the
appellant writ petitioner throughout the
proceedings left alone 96 hours interval
prescribed by the said provisions between
the supply of the aforesaid documents in
the commencement of the proceedings.
He submitted that the violation of the
aforesaid Rule is sufficient and grave
enough to viiate the entire Court Martial
proceedings. In support thereof he relied
upon a decision in the case of Ram
Pravesh Rai Vs. Union of India and
others reported in 1988 UPLBEC 783
wherein this Court has held that failure to
provide a copy of the charge sheet and
summary of evidence 96 hours before the
actual trial and allowing the gap of 96
hours between the petitioner being so
informed of his actual trial would vitiate
the entire Court Martial proceedings.
However, the information should be given
from the Presiding Officer as provided in
the Rules.

5. He further submitted that the
provisions of Section 33 of the Act and
Rule 44 of the Rules have also been
violated as the petitioner was not
informed about the name of the Presiding
Officer and the Members so that he may
raise his objection, if any, which vitiate
the entire proceedings. He relied upon the
decisions of the Hon'ble Supreme Court in
the case of Ranjeet Thakur Vs. Union of
India, 1997 S.C. 2386 and Ltd. Col. Preti
Pal Singh Bvedi Vs. Union of India and
others AIR 1982 S.C. 1413. He further
submitted that Rule 129 of the Act and
Rule 33 of the Army Rules have also been
violated as he was not given the help of
any person to assist him during the trial
which would violate the principle of
natural justice. He relied upon a decision
of this Court in the case of Union of India
Vs. Rameshwar Mahto 1993 A.W.C. 883.

6. Learned counsel for the petitioner
further pressed into aid the principle of
bias against the Commanding Officer
which had vitiated the entire proceedings.
According to him the appellant writ
petitioner had made a complaint against
Regimental
Havaldar
to
Col.
Chandrashekhar
Chaturvedi,
Commanding Officer, Artillery Depot
Regiment which was taken cognizance of
by the said Officer. The summary Court
Martial proceedings was initiated by the
same Commanding Officer which went
on to preside over the proceedings of the
summary Court Martial and dismissed
him from service.

7. According to him the complaint
was made to the Commanding Officer
Col. Chaturvedi, who alone could have
proved the aforesaid complaint as a
witness before the summary Court Martial
proceedings which was the cause and
basis of the entire Court martial against
him. Instead of being a witness the
Commanding Officer Col. Chaturvedi
presided over the summary Court Martial
and finally he was dismissed from
service. Thus the complaint which formed
the cause and basis of Court Martial was
never proved. According to him the
Commanding Officer had also punished
the appellant writ petitioner twice on
19.9.1996 and 6.10.1996.

8. He further submitted that the
appellant was summarily tried under
section 41 (2) and awarded 28 days
rigorous imprisonment on 19.9.96 and
immediately after his release at the
conclusion of his sentence, the appellant
was again awarded a punishment to
http://www.allahabadhighcourt.nic.in
902 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
undergo
vigorous
imprisonment
on
6.10.1996. Both these sentences was
successively handed out to the petitioner
by the same commanding officer namely
Col.
Chandrashekhar
Chaturvedi.
However, such punishments were not
proceeded by any Court martial or trial, as
envisaged in section 41 (2).

9. He further submitted that during
his internment in pursuance of the
aforesaid sentence the appellant fell
seriously ill. The appellant accordingly
reported sick and was examined by the
military doctors namely Lt.Col. (Doctor)
A.K. Shukla & Lt. Col. (Doc.) V.K. Nair.
The said doctors (in particular Lt. Col.
Doc. V.K. Nair) opined that the case of
the appellant was serious and he needed
specialist medical care which was not
available in the M.I. room of his
Regiment.
Hence,
the
doctor
recommended that the appellant be moved
to M.H. Deolali where he could be
administered specialist care and attention
to
cure
his
illness.
However,
the
commanding Officer was so single
minded in his desire to harass and punish
the petitioner that he over-ruled the
aforesaid specialist's medical opinion.
Needless to add Col. Chandrashekhar
Chaturvedi had no expertise to over rule
the aforesaid Medical advise. Thus, the
Commanding Officer ensured that the
appellant was precluded from availing
specialist
Medical
attention
and
he
continued to suffer with an aggravated
ailment. The aforesaid facts wherein the
said Col. Chandrashekhar Chaturvedi
awarded
consecutive
and
successive
punishments to the appellant in a short
span of 2 months prevented the appellant
from getting medical treatment, presiding
over a Court martial where in fact he
should have been a witness shows the bias
of the commanding officer against the
appellant. It is logical to conclude from
the aforesaid factual matrix that the said
Court martial proceedings presided over
Col. Chandrashekhar Chaturvedi were a
mere formality, in view of his bias and
malafide intentions. It is clear that after
initiating the Summary Court Martial
proceedings
Col.
Chandrashekhar
Chaturvedi steered them to their predetermined destination of finding the
appellant guilty and dismissing him from
service.

10. He further submitted that Rule
22 of the Rules have also been violated as
no pretrial, as contemplated in the said
Rules was conducted which is mandatory
in nature, thus the entire proceedings have
been vitiated. In support thereof he relied
upon a decision of the Hon'ble Supreme
Court in the case of Lt. Col. Preti Pal
Singh Vs. Union of India reported in 1982
S.C. 1413. He submitted that in any event
under section 56 of the Act making a false
accusation simplicitor against any person
is not an offence unless the person
making
the
false
accusation
makes
accusation knowing or having reason to
believe such accusation to be false and the
conviction upon by Court Martial can be
made to suffer imprisonment for a term
which may extend to 5 years. The
accusation in the present case was not
made knowingly and no punishment
could have been given. He relied upon a
decision of this Court in C.M. Writ
Petition
No.
29244
of
1999
No.
13883630-K Ex. Sep.Dvt. (MT) M.Z.H.
Khan Vs. The Chief of the Army Staff,
Army Headquarters, New Delhi and
others dated 29.8.2001.

Shri Narendra Prasad Shukla, learned
Standing Counsel submitted that the
http://www.allahabadhighcourt.nic.in
3 All] Sher Singh V. Union of India and others 903
appellant writ petitioner was detained on
duty on 4.7.1996 in the M.T. Area of the
Unit. He was found absent from duty. He
was again found missing from the Unit
lines and instead was found on 4.7.1996
at 7.45 P.M. at Railway Station Nasik. He
was ordered to perform duty on the main
gate of Artillery Depot Regiment on
7.7.1996 but he refused to obey and
declined to perform the duty. He was
detained in his place. The incident was
reported to the Higher Officer. On
16.7.1996 he wrote a personal letter
addressed to the Commanding Officer of
Artillery Depot Regiment alleging that
Lance
Hawaldar
Sulkhan
Singh
demanded a Bottle of Rum from every
new inductee and Rs.100/- from each
member of the Regiment, Police Section
for any mistake committed by them
and/or to recommend their leave to the
appropriate authority. A Court Martial
Enquiry was conducted and the evidence
was reduced in writing which established
that the appellant writ petitioner had made
a
false
allegations
against
Lance
Hawaldar Sulkhan Singh knowing fully
well that they were false. On 12.9.1996,
he did not obey the order passed by the
Superior Officer and he was placed under
arrest for which he was awarded 28 days
rigorous imprisonment. While undergoing
the punishment he became violent with
provocation and broke two glass paries of
the ventilator cell. He was given full
opportunity to defend and he was
provided a copy of the charge-sheet and
summary of the evidence, but he refused
to take documents which have been
witnessed by two independent witnesses.
He was tried on 26.10.1996 by summary
Court Martial under section 56 (a) of the
Act for making a false accusation against
a person subject to the Army Act knowing
such accusation to be false. He was
dismissed
from
service
taking
a
sympathetic view whereas the offence is
punishable
with
5
years
rigorous
imprisonment.

11. According to the learned
Standing Counsel the appellant writ
petitioner declined to receive and sign the
documents whereupon a complete set of
facts of Court martial proceedings were
sent to him by post at his home address.
He further submitted that the provisions
of Rule 33 (7) of the Army Rules are not
applicable as it has application only to
general Court Martial and District Court
Martial and not to summary Court
Martial. According to him the contention
of the learned counsel for the appellant
writ petitioner that the Commanding
Officer became disqualified as he has
taken cognizance of the complaint made
by him is incorrect. The said Officer only
ordered for a Court of enquiry on the
basis of complaint made by him. The
Court of enquiry examined the witnesses
and submitted the report to the Officer
and the provisions of Rule 22 are
complied with by making a tentative
charge sheet. The summary Court martial
procedure was followed and the officer
was competent to hold the summary Court
Martial. He relied upon a decision of the
Hon'ble Supreme Court in the case of
Vidya Prakash Vs. Union of India A.I.R.
1988 S.C. 705 and Major General
Indrajeet Sharma Vs. Union of India J.T.
1997 (4) S.C. 8 and Bhuvaneshwar Singh
Vs. Union of India and others J.T. 1993
Vol. 5 S.C.154.

12. Having heard the learned
counsel for the parties we find that as per
Annexure 1 enclosed with the Counter
Affidavit filed by Major Purushottaman
on
behalf
of
the
respondents,
on
http://www.allahabadhighcourt.nic.in
904 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
18.9.1996 and charges were explained to
the accused i.e. (appellant writ petitioner)
and he was apprised of his right to cross
examine all the prosecuting witnesses
under Army Rules 23 (2) as also produce
in his own defense. The summary of
evidence was also given to the accused
and he had also cross examined the
prosecution witness no. 1 Sulkhan Singh,
but he declined
to
cross examine
prosecution witness no. 2,3,4,5. Further
he did not give any statement and he
declined to call any witness for his
defense. Evidence was recorded in his
presence
and
has
been
signed by
independent
witness.
Thus
all
the
procedure as prescribed in the various
Rules have been complied with. So far as
the violation of Rule 33 (7) and Rule 34
of the Rules are concerned, it may be
mentioned here that there is no averments
that he was not given summary of
evidence before ninety six hours. Neither
any violation of Rule 33 (7) of Rule 34 of
the Army Rules have been pleaded. We
have already found that appellant writ
petitioner was provided with the summary
of evidence and was also given an
opportunity to cross examine, which he
availed in respect of P.W. 1 but declined
in respect of remaining prosecution
witnesses. Thus no breach of Rule 33 (7)
or Rule 34 has been made out. The
decision of this Court in the case of Ram
Pravesh Rai Vs. Union of India (supra)
would not be applicable to the facts of the
present case. So far as non compliance of
Section 130 and Rule 44 of the Rules are
concerned, the position is that there is no
averment in the writ petition regarding its
non compliance and therefore it cannot be
raised for the first time in appeal.
However, it may mention here that the
decision of the Hon'ble Supreme Court in
the case of Ranjeet Thakur (supra)
wherein the provisions of Section 130 of
the Army Act has been held to be
mandatory for summary Court martial
proceedings already appears to have been
reviewed as noticed by Jammu &
Kashmir High Court in the case of
Balwant Singh Vs. Union of India and
another reported in 1992 Criminal Law
Journal 1712 wherein the said position
has been rectified. The relevant portion of
paragraph 8 of the judgment in Balwant
Singh's case is reproduced below:

"8. The submission regarding breach
of provisions of terms of Ss. 130 and 116
is misplaced and invites rejection on the
very thresh-hold. Even a cursory look at
S. 130 would show that it brings within its
ambit only trials by General, District or
Summary General Court Martial. The
fourth category of Court Martial i.e.
Summary Court Martial is per se
excluded.
Therefore,
there
was
no
question or occasion to ask the petitioner
accused as to whether he wanted to object
to be tried by an officer sitting on the
Court. It is true in AIR 1987 SC 2386:
(1988 Cri LJ 158) the Hon'ble Supreme
Court held this Section to be applicable
even to Summary Court Martial. But on a
review,
the
error
stands
rectified.
Therefore, this issue is no more res
integra."

Likewise in the writ petition there is no
averment that the provisions of Rule 133
and 129 have been violated.

13. So far as the question as to
whether the Commanding Officer was
biased or not, it may be mentioned here
that neither in the writ petition as
originally
filed
nor
even
after
its
amendment by incorporating as many as
23 paragraphs the plea of bias against the
http://www.allahabadhighcourt.nic.in
3 All] Sher Singh V. Union of India and others 905
Commanding
Officer
Col.
Chandra
Shekhar Chaturvedi was alleged. Bias is
basically a question to be decided on the
basis of the plea and material filed in
support thereof. In the absence of any plea
the appellant writ petitioner cannot be
permitted to raise such a plea for the first
in the Special Appeal. The submission
that the provisions of Rule 22 of the Rules
have been violated also does not stand
scrutiny. We have already found that the
charges were read over to the appellant
writ petitioner, the evidence was recorded
in his presence, he was also permitted to
cross examine. Whether or not he availed
of that opportunity of cross examination is
another thing. From the record it appears
that the appellant writ petitioner cross
examined P.W. 1 and declined to cross
examine any other prosecution witnesses.
He also declined to give his statement.
The summary of the proceedings have
been signed by independent witnesses. In
this back ground we are of the considered
opinion that the procedure of Rule 22 has
been complied with.

14. So far as the question regarding
the punishment being disproportionate to
the evidence said to have been committed
by the appellant writ petitioner is
concerned we find that the charge which
was framed against the appellant writ
petitioner was making a false accusation
against a person subject to the Army Act
knowing such accusation to be false. The
charge was framed under section 56 (a) of
the Army Act. Section 56 of the Act is
reproduced below:-

"56. False accusations- Any person
subject to his Act who commits any of the
following offences, that is to say--

(a) make a false accusation against any
person subject to this Act, knowing or
having
reason
to
believe
such
accusation to be false; or
(b) in making a complaint under section
26 or section 27 makes any statement
affecting the character of any person
subject to this Act, knowing or having
reason to believe such statement to be
false or knowingly and willfully
suppresses any material facts;
(c) shall on conviction by Court-martial,
be liable to suffer imprisonment for a
term which may extend to five years
or such less punishment as is in this
Act mentioned."

15. The condition precedent for
making out of an offence under section 56
(a) is that person making false accusation
knows or has reason to believe such
accusation to be false, it does not provide
that every false accusation which is made
unknowingly or under some mistake to be
an offence unless it is proved that the
false
accusation
has
been
made
knowingly or having reason to believe
such accusation to be false, the offence
cannot be said to have been committed.
From the proceedings of the summary
Court martial and the sentence awarded, it
does not appear that any finding has been
recorded by the Summary Court Martial
that the appellant writ petitioner was
making false accusation knowingly or
having reason to believe it to be false.
Thus the punishment could not have been
awarded at all.

16. The learned Single Judge of this
Court in the case of No. 13883630-K Ex.
Sep.Dvt. (MT) M.Z.H. Khan Vs. The
Chief
of
the
Army
Staff,
Army
Headquarters, New Delhi and others has
held that unless accusation made by a
http://www.allahabadhighcourt.nic.in
906 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
person or known to that person to be false
or he has reason to believe to be false is
found that no offence under section 56 (a)
of the Act is made out.

17. There is nothing on record to
show that any finding has been recorded
in the summary Court martial proceedings
that the false accusation made by the
appellant writ petitioner was known to
him to be false or he has reason to believe
it to be false. Thus no punishment could
have been awarded for the alleged offence
committed under section 56 (a) of the
Army Act. The punishment is vitiated.

18. In view of the fact that we are
setting
aide
the
punishment,
it
is
necessary for us to go into the question
that the punishment, is disproportionate to
the alleged offence.

19. In view of the foregoing
discussion the Special Appeal succeeds
and is allowed and the punishment
awarded to the appellant writ petitioner by
Summary Court Martial dated 28.1096
and 23.7.1997 are hereby set aside and he
shall be entitled for all consequential
benefits.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 387 of 2001

Shobh Nath Singh

...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri Shailendra

Counsel for the Respondents:
Sri H.N. Pande
Sri Sabhajit Yadav
S.C.

U.P.
Secondary
Education
Service
Selection Boards Act 1982- Section 33-A
(1-c.)
Regularisation-
appellant
petitioner appointed against short term
vacancy caused by on Mr. R.P. Ojha- who
was also appointed on ad hoc basis as
English lecturer under the Provision of
Second Removal of Difficulties Order
1981- proceeded on leave on 1.3.85
subsequently
resined
on
1.12.85-
appellant appointed on 2.12.85 on Adhoc
basis - approval granted by D.I.O.S. on
17.2.85- appointment of Respondent no.
4 made by Commission on 7.7.89-
remained unchallenged - even in earlier
writ petition of the appellant- he was
entitled to work till the Regular selected
candidate joined- held can not be
regularised.

Held- para 13

In the present case, the substantive
vacancy
arose
on
1.1.1986
when
according to the own saying of the
appellant writ petitioner, resignation of
Sri R.P. Ojha was accepted by the
Committee of management whereas the
appellant writ petitioner was appointed
on 2.12.1985. Thus his appointment
cannot be said to be under section 18 of
the Act. Moreover, as held by this Court
in the case of Jagdish Singh Kushwaha
(supra), the conditions no. 2 and 3 are
not fulfilled. Thus, the appellant- writ
petitioner
is
not
entitled
for
regularisation.
The
order
of
regularisation having been passed by the
District Inspector of Schools without
taking into consideration the relevant
law has rightly been cancelled. Moreover
in earlier writ petition filed by the
appellant- writ petitioner in the year
1986 he was directed to continue till the