# Shesh Ram & Ors v. State of U.P. Respendent

- **Citation:** (2022) 10 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-29
- **Case number:** Writ-A No.6006 of 2002
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shesh-ram-ors-v-state-of-u-p-respendent-47715
- **Pages:** 14

## Headnote

Civil Law- the Constitution of India-
Article 162 - U.P. State Universities Act,
1973-
Section
60-E-
The
condition
incorporated in Government Order dated
31.08.1999 and consequent order dated
22.03.2001, by which a rider has been
imposed in payment of salary to teachers
and
other
employees
against
64
sanctioned posts- No government order,
notification or circular can be a substitute
of the statutory rules framed with the
authority of law. The petitioners were
selected by the Selection Committee
having fulfilled requisite eligibility criteria
by following procedure prescribed in the
Act of 1973. When the recommendation
made by the Selection Committee was not
approved by respondent No.3 within
stipulated time, they joined duty on their
respective posts, however, they have not
been paid even a single penny so far. Even
a scheme issued under Article 162 of the
Constitution of India, would not prevail
over statutory rules. Any scheme by way
of an executive instruction in terms of
Article 162 of the Constitution of India, if
violative of such statutory rules, would
not be legally sustainable. The sanction
granted with rider has adversely affected
the employees of the colleges. Once the
posts have been sanctioned, the rider
imposed under the Government Order
dated 31.08.1999 and 22.03.2001 are
erroneous in nature and contrary to the
statutory provisions of law provided under
Section 60-E of U.P. State Universities Act,
1973 and the liability for payment of
salary lies upon the State Government.

Where Section 60-E of the Act, 1973 mandates
that the state government shall be liable for
payment of salaries of teachers and employees
of every college due in respect of any period
after March 31, 1975, then no rider or condition
by way of any executive instructions, can be
imposed in violation of the said statutory
mandate and any such rider is liable to be
struck down as being legally unsustainable.
(Para 19, 25, 26, 27, 28, 30)

Writ Petitions allowed. (E-3)

Judgements/Case law relied upon:-

## Text

_Characters 0–39,710 of 47,266. This is a partial read: ask again with offset=39710 for what follows._

28 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction of the officer, something which
would show that it would be a case of
palpable injustice to the writ petitioner to
force him to adopt the remedies provided
by the statute. It was noted by this Court in
L. Hirday Narain v. ITO [(1970) 2 SCC
355: AIR 1971 SC 33] that if the High
Court had entertained a petition despite
availability of alternative remedy and
heard the parties on merits it would be
ordinarily unjustifiable for the High Court
to dismiss the same on the ground of nonexhaustion of statutory remedies: unless the
High Court finds that factual disputes are
involved and it would not be desirable to
deal with them in a writ petition".

11. This Court finds that the Supreme
Court has reiterated the long settled law as
propounded
by
the
Constitution
Bench
judgement in the case of N. P. Ponnuswami vs.
Returning Officer 1952 SCR 218; and has
observed that when a right is created by the
statute, which itself prescribes the remedy or
procedure for enforcing the right or liability,
resort must be had to that particular statutory
remedy before invoking the discretionary
remedy under Article 226 of the Constitution.
This Rule of exhaustion of statutory remedies is
a rule of policy, convenience and discretion. In
cases where there are disputed questions of fact,
the High Court may decide to decline
jurisdiction in a writ petition.

12. In the case of the petitioner, he has
challenged the punishment order not only on
grounds of violation of Principle of Natural
Justice but also on merits by saying that the
Inquiry Report on which such punishment order
is based is completely non-speaking and has
tried to convince this Court on the merits of the
claim of the petitioner that he is in no way
responsible for the alleged misconduct which
led to the passing of the impugned order.
Disputed questions of fact have been tried to be
raised in this petition by means of filing
affidavits including supplementary affidavit
showing that the respondents themselves have
acted upon the noting made on the file by the
petitioner.

13. This Court in Writ jurisdiction finds
itself unable to appreciate disputed questions of
fact only on the basis of affidavit, more so when
the matter is so technical as that of the petitioner
where the charge sheet itself shows imputation
malafide intention on the part of the petitioner
to help M/s Gaur Sons Realty Pvt. Ltd., Gaur
Sundaram Greater Noida, Gautam Budh Nagar,
by giving new electricity load of 5200 KV from
under Construction 220/132 KV Sub-Station,
Sector 123, Noida through 33 KV independent
"bay" and refers in detail to the Technical
Feasibility Report and the Electricity Audit
conducted, thereafter.

14. This Writ Petition is dismissed as not
maintainable on account of statutory remedy of
filing an appeal before the Board of Directors
and the Regulation 11 of the Regulations of
2020.

15. If such an appeal is filed within three
weeks from today, the Board of Directors shall
not reject it on ground of delay, but shall
consider and decide the same on merits.
----------
(2022) 10 ILRA 28
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.09.2022

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No.6006 of 2002
Along with other cases

Shesh Ram & Ors. ...Petitioners
Versus
State of U.P. ...Respendent
10 All. Shesh Ram & Ors. Vs. State of U.P.
29
Counsel for the Petitioner:
Prashant Chandra, Ajay Madhavan, Anurag
Verma, Mata Prasad Yadav, Neeraj K
Srivastava, Romit Seth, Tung Nath Tiwari

Counsel for the Respondent:
C.S.C., Shishir Jain

Civil Law- the Constitution of India-
Article 162 - U.P. State Universities Act,
1973-
Section
60-E-
The
condition
incorporated in Government Order dated
31.08.1999 and consequent order dated
22.03.2001, by which a rider has been
imposed in payment of salary to teachers
and
other
employees
against
64
sanctioned posts- No government order,
notification or circular can be a substitute
of the statutory rules framed with the
authority of law. The petitioners were
selected by the Selection Committee
having fulfilled requisite eligibility criteria
by following procedure prescribed in the
Act of 1973. When the recommendation
made by the Selection Committee was not
approved by respondent No.3 within
stipulated time, they joined duty on their
respective posts, however, they have not
been paid even a single penny so far. Even
a scheme issued under Article 162 of the
Constitution of India, would not prevail
over statutory rules. Any scheme by way
of an executive instruction in terms of
Article 162 of the Constitution of India, if
violative of such statutory rules, would
not be legally sustainable. The sanction
granted with rider has adversely affected
the employees of the colleges. Once the
posts have been sanctioned, the rider
imposed under the Government Order
dated 31.08.1999 and 22.03.2001 are
erroneous in nature and contrary to the
statutory provisions of law provided under
Section 60-E of U.P. State Universities Act,
1973 and the liability for payment of
salary lies upon the State Government.

Where Section 60-E of the Act, 1973 mandates
that the state government shall be liable for
payment of salaries of teachers and employees
of every college due in respect of any period
after March 31, 1975, then no rider or condition
by way of any executive instructions, can be
imposed in violation of the said statutory
mandate and any such rider is liable to be
struck down as being legally unsustainable.
(Para 19, 25, 26, 27, 28, 30)

Writ Petitions allowed. (E-3)

Judgements/Case law relied upon:-

1. Dr. Rajinder Singh Vs St. of Punj. & ors.;
(2001) 5 SCC 482.

2. Commissioner of Central Excise, Bolpur Vs
Ratan Melting & Wire Industries; (2008) 13 SCC
1.

3. T.N. Housing Board Vs N. Balasubramaniun &
ors.;(2004) 6 SCC 85.

4. Laxman Dundappa Dhamanekar & anr. Vs
Management of Vishwa Bharata Seva Samiti &
anr(2001) 8 SCC 378

5. Punj. Water Supply and Sewerage & ors. Vs
Ranjodh Singh & ors.;(2007) 2 SCC 491.

6. Mahadeo Bhau Khilare (MANE) & ors. Vs St.
of Maha. & ors.;(2007) 5 SCC 524.

7.
Sandur
Micro
Circuits
Limited
Vs
Commissioner
of
Central
Excise,
Belgaum;(2008) 14 SCC 336.

8. Ajaya Kumar Das Vs St. of Orissa &
ors.;(2011) 11 SCC 136.

9. St. of U.P. & ors. Vs C/M Sri Sukhpal
Intermediate College, Tirhut, Sultanpur & ors.;
[2015 (33) LCD 1398]. (cited)

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Prashant Chandra,
learned Senior Counsel assisted by Ms.
Radhika Singh and Sri Satish Chandra
Sitapuri, learned counsel for the petitioners,
Sri Alok Sharma, learned Additional C.S.C.
for respondent - State and Sri Shishir Jain,
30 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel for respondent - Committee
of Management.

2. This bunch of writ petitions is
being decided by means of a common
judgment and order treating WRIT-A No.-
6006 of 2002 to be leading writ petition.

3. Brief facts of the writ petitions,
separately, are as under:

Writ-A No.6006 of 2002:

a) On 22.04.1999, an order was
passed by this Court in Writ Petition
No.17179 of 1999, whereby direction was
issued to the respondents to decide the
representation
of
the
Committee
of
Management taking into consideration the
norms fixed by the Government as well as
the recommendations of Director Higher
Education.

b) On 31.08.1999, a High Power
Committee decided the representation of
Committee of Management and sanctioned
64 posts of non teaching staffs in D.A.V.
College, Kanpur and D.B.S. College,
Kanpur by sanctioning one post of Animal
Catcher, one post of Glass Blower, one post
of Gas Man and one post of Peon by
imposing condition that the State shall not
bear any liabilities with regard to payment
of salary and the management would have
to bear the burden.

c) In pursuance to aforesaid
sanction, name of petitioner Nos.1 to 4
were called from employment exchange
and the meeting of selection committee was
held on 27.02.2000 and selection of the
petitioners was made.

d) The petitioners were appointed
by the committee of management on the
respective posts and when no action was
taken
by
respondent
No.3
on
the
communication dated 02.03.2000, they
joined the duties on 13.12.2000.

e) Since then, the petitioners are
discharging duty on their respective posts
to the satisfaction of concerned authorities,
however, they have not been paid salary, as
the Committee of Management of the
college has taken a stand that they do not
have funds to pay in as much as, 80% of
the fee collection is being deposited with
the
State
Government,
however,
the
respondents are not releasing the salary of
the petitioners in view of condition
imposed in the order dated 31.08.1999.

f) For the payment of salary to
the
petitioners,
the
committee
of
management
has
made
several
representations, but no heed has been paid
to the same.

g) Petitioner No.3 -Rajendra
Kumar died in the year 2008 and on his
place,
his
wife
has
been
granted
appointment, who is getting regular salary
month by month.

Writ-A No.6004 of 2002:

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
recommendation made by the high power
committee on 31.08.1999 for sanction of 64
posts of non-teaching staff, wherein six
posts were sanctioned for Book Lifters
(Pustakalaya
Parichar),
a
selection
committee was constituted, who appointed
the petitioners on the post of Book Lifter
on 13.12.2000 calling their name from
employment exchange. Since then, the
petitioners are discharging their duties but
no salary has been paid to them in view of
condition
levelled
in
order
dated
31.08.1999.

Writ - A No. - 2586 of 2002:

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
10 All. Shesh Ram & Ors. Vs. State of U.P.
31
recommendation made by the high power
committee on 31.08.1999 for sanction of 64
posts of non-teaching staff, wherein one
post of Cataloguer in each; D.A.V. College,
Kanpur and D.B.S. College, Kanpur was
sanctioned, a selection committee was
constituted, who appointed the petitioner
on the post of Cataloguer on 26.03.2001.
Since then, the petitioner is discharging his
duties but no salary has been paid to him in
view of condition levelled in order dated
22.03.2001.

Writ - A No. - 4574 of 2002:

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
recommendation made by the high power
committee on 31.08.1999 for sanction of 64
posts of non-teaching staff, wherein one
post of Library Clerk was sanctioned. In
pursuance thereof, an advertisement was
issued in two newspapers on 01.09.1999
and the petitioner applied in pursuance
thereof. In the meeting held of Selection
Committee on 26.03.2000, name of the
petitioner was recommended and the
Committee of Management approved the
recommendation made by the Selection
Committee
on
27.03.2000
and
on
28.03.2000, the Committee of Management
forwarded
the
recommendations
of
Selection Committee to respondent No.3,
however, no action has been taken by
respondent No.3 till date. On 18.07.2000,
the petitioner was appointed on the post of
Library Clerk. Since then, the petitioner is
discharging his duties but no salary has
been paid to him in view of condition
levelled in order dated 31.08.1999.

WRIT - A No.-5164 of 2002:

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
recommendation made by the high power
committee on 31.08.1999 for sanction of 64
posts of non-teaching staff, wherein 32
posts of Routine Clerks were sanctioned. In
pursuance thereof, advertisements were
issued in two newspapers on 31.08.1999 &
01.09.1999 and the petitioners applied in
pursuance thereof. In the meeting held of
Selection Committee on 09.04.2000, name
of the petitioners were recommended and
the Committee of Management approved
the recommendation made by the Selection
Committee
on
25.05.2000
and
on
31.05.2000, the Committee of Management
forwarded
the
recommendations
of
Selection Committee to respondent No.3,
however, no action has been taken by
respondent No.3 till date. On 04.12.2000,
the petitioners were appointed on the post
of
Routine
Clerks.
Since
then,
the
petitioners are discharging their duties but
no salary has been paid to them in view of
condition
levelled
in
order
dated
31.08.1999.

Writ - A No. - 5177 of 2002:

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
recommendation made by the high power
committee on 31.08.1999 for sanction of 64
posts of non-teaching staff, wherein one
post of Animal Catcher, one post of Glass
Blower and one post of Gas Man was
sanctioned. A meeting of the Selection
Committee was held on 27.02.2000, who
appointed the petitioners on their respective
posts 13.12.2000 calling their name from
employment exchange. Since then, the
petitioners are discharging their duties but
no salary has been paid to them in view of
condition
levelled
in
order
dated
31.08.1999.

Writ - A No. - 5642 of 2002:
32 INDIAN LAW REPORTS ALLAHABAD SERIES

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
recommendation made by the High Power
Committee on 31.08.1999 for sanction of
64 posts of non-teaching staff, wherein 32
posts of Library Clerks were sanctioned. In
pursuance thereof, advertisements were
issued in two newspapers on 31.08.1999 &
01.09.1999 and the petitioners applied in
pursuance thereof. In the meeting held of
Selection Committee on 09.04.2000, name
of the petitioners were recommended and
the Committee of Management approved
the recommendation made by the Selection
Committee
on
25.05.2000
and
on
31.05.2000, the Committee of Management
forwarded
the
recommendations
of
Selection Committee to respondent No.3,
however, no action has been taken by
respondent No.3 till date. On 04.12.2000,
the petitioners were appointed on the post
of
Library
Clerks.
Since
then,
the
petitioners are discharging their duties but
no salary has been paid to them in view of
condition
levelled
in
order
dated
31.08.1999.

WRIT - A No. - 5643 of 2002:

In pursuance to order passed by this Court
in Writ Petition No.17179 of 1999 on
22.04.1999
and
in
pursuance
to
recommendation made by the High Power
Committee on 31.08.1999 for sanction of
64 posts of non-teaching staff, wherein 32
posts of Routine Clerks were sanctioned in
D.A.V. College, Kanpur and 7+2 posts in
D.B.S. College, Kanpur. In pursuance
thereof, advertisements were issued in two
newspapers on 31.08.1999 & 01.09.1999
and the petitioners applied in pursuance
thereof. In the meeting held of Selection
Committee on 26.03.2000, name of the
petitioners were recommended and the
Committee of Management approved the
recommendation made by the Selection
Committee
on
27.03.2000
and
on
28.03.2000, the Committee of Management
forwarded
the
recommendations
of
Selection Committee to respondent No.3,
however, no action has been taken by
respondent No.3 till date. On 18.07.2000,
the petitioners were appointed on the post
of
Routine
Clerks.
Since
then,
the
petitioners are discharging their duties but
no salary has been paid to them in view of
condition
levelled
in
order
dated
31.08.1999.

WRIT - A No. - 5645 of 2002:

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
recommendation made by the High Power
Committee on 31.08.1999 for sanction of
64 posts of non-teaching staff, wherein 32
posts of Routine Clerks were sanctioned. In
pursuance thereof, advertisements were
issued in two newspapers on 31.08.1999 &
01.09.1999 and the petitioners applied in
pursuance thereof. In the meeting held of
Selection Committee on 09.04.2000, name
of the petitioners were recommended and
the Committee of Management approved
the recommendation made by the Selection
Committee
on
25.05.2000
and
on
31.05.2000, the Committee of Management
forwarded
the
recommendations
of
Selection Committee to respondent No.3,
however, no action has been taken by
respondent No.3 till date. On 04.12.2000,
the petitioners were appointed on the post
of
Routine
Clerks.
Since
then,
the
petitioners are discharging their duties but
no salary has been paid to them in view of
condition
levelled
in
order
dated
31.08.1999.

WRIT - A No. - 5646 of 2002:
10 All. Shesh Ram & Ors. Vs. State of U.P.
33

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
recommendation made by the High Power
Committee on 31.08.1999 for sanction of
64 posts of non-teaching staff, wherein 32
posts of Routine Clerks were sanctioned. In
pursuance thereof, advertisements were
issued in two newspapers on 31.08.1999 &
01.09.1999 and the petitioners applied in
pursuance thereof. In the meeting held of
Selection Committee on 09.04.2000, name
of the petitioners were recommended and
the Committee of Management approved
the recommendation made by the Selection
Committee
on
25.05.2000
and
on
31.05.2000, the Committee of Management
forwarded
the
recommendations
of
Selection Committee to respondent No.3,
however, no action has been taken by
respondent No.3 till date. On 04.12.2000,
the petitioners were appointed on the post
of
Routine
Clerks.
Since
then,
the
petitioners are discharging their duties but
no salary has been paid to them in view of
condition
levelled
in
order
dated
31.08.1999.

WRIT - A No. - 611 of 2004:

In pursuance to order passed by
this Court in Writ Petition No.17179 of
1999 on 22.04.1999 and in pursuance to
recommendation made by the High Power
Committee on 31.08.1999 for sanction of
64 posts of non-teaching staff, wherein 32
posts of Routine Clerks were sanctioned. In
pursuance thereof, advertisements were
issued in two newspapers on 31.08.1999 &
01.09.1999 and the petitioner applied in
pursuance thereof. In the meeting held of
Selection Committee on 09.04.2000, name
of the petitioner was recommended and the
Committee of Management approved the
recommendation made by the Selection
Committee
on
25.05.2000
and
on
31.05.2000, the Committee of Management
forwarded
the
recommendations
of
Selection Committee to respondent No.3,
however, no action has been taken by
respondent No.3 till date. On 04.12.2000,
the petitioner was appointed on the post of
Routine Clerk. Since then, the petitioners is
discharging his duties but no salary has
been paid to him in view of condition
levelled in order dated 31.08.1999.

4. By means of the present bunch of
writ petitions, the petitioners have prayed
for quashing the condition incorporated in
Government Order dated 31.08.1999 and
consequent order dated 22.03.2001, by
which a rider has been imposed in payment
of salary to teachers and other employees
against 64 santioned posts.

5. The Government Order dated
31.08.1999 was issued in compliance of
direction issued by this Court in Writ
Petition No.30819 of 1998 & Writ Petition
No.17179 of 1999 on 24.09.1998 &
22.04.1999, respectively.

6. Section 60-E of U.P. State
Universities Act, 1973 provides that it is
responsibility of the State Government to
pay the salary of teachers and other
employees of the colleges.

7. In bunch of writ petitions with
leading Writ Petition No.2586 (S/S) of
2002, an interim order was granted by this
Court on 26.08.2002, which reads as under:

"........................

...........................................

All the three petitions have been
filed
by
the
non-teaching
personnel.
Petitioner of Writ Petition No.2586 (SS) of
2002 is working in D.B.S. College, Kanpur,
whereas the petitioners of Writ Petition
34 INDIAN LAW REPORTS ALLAHABAD SERIES
Nos.3126 (SS) of 2002 and 4574 (SS) of
2002 are working in D.A.V. College,
Kanpur. The petitioners' contention is that
they have not been paid their salary or any
allowances for the last two years because
of a condition levied by the Government
while sanctioning creation of 64 posts. A
perusal of the Sanctioned Order dated
August 31, 1999 (Annexure 1) would reveal
that as many as 64 posts were sanctioned
by the Government for D.A.V. College and
D.B.S. College, Kanpur, however, with the
condition that the expenditures on account
of salary and other allowances pertaining
to these 64 posts will be borne by the
Management of the Colleges. Learned
Counsel appearing on behalf of the
petitioners has placed reliance upon a
citation reported in [(2001) 8 SCC 378]
Laxman
Dundappa
Dhamanekar
and
another
Vs.
Management
of
Vishwa
Bharata Seva Samiti and another and the
provisions of Section 60-E of the U.P. State
Universities Act, 1973. As a matter of fact,
under the state Universities Act, it is the
liability of the State Government to pay
salaries to the teachers and employees of
every college. The terms of Section - 60-E
are mandatory which make it obligatory for
the State Government to bear the financial
load so far as the payment of salary to the
teachers and employees is concerned. In its
counter - affidavit filed in writ petition no.
3126 (SS) of 2002, the State Government
has conceded that the condition regarding
payment of salaries to the 64 posts
sanctioned for D.A.V. College and D.B.S.
College, Kanpur was incorporated in the
Order referred to above as the Government
had financial constraints. However, the fact
remains that the mandatory provision of
Section 60-E of the Universities Act cannot
be subjugated to the factum of the poor
economy of the State. In other words,
financial constraints of the Government
cannot override the provisions of Section
60-E of the Universities Act. Learned
Counsel appearing on behalf of the
Colleges had not at the relevant time of the
sanction being granted submitted any
undertaking conceding its liability to make
payment of the salary to the 64 employees,
who might be appointed.

Subject to any assurance or
undertaking, if any, submitted by the
Managements of the Colleges, it is
provided -- that if the petitioners are in
continuous services of the Colleges, the
State Government is directed to pay the
petitioners' salary while discharging its
obligation under Section 60-E of the
Universities Act."

8. Learned Senior Counsel for the
petitioners submitted that the Government
Order dated 31.08.1999 and consequent
order dated 22.03.2001 are ultra vires to the
provisions of Section 60-B&E of U.P. State
Universities Act, 1973 (hereinafter referred
to as, 'Act of 1973') as it seeks to supplant
and render otiose the provisions of the said
section by an executive order.

9. He further submitted that under the
provisions of Section 60-E of Act of 1973,
the State Government has been held liable
for payment of salary of teachers and other
employees of every college due in respect
of any period after 31st March, 1975.

10. He next submitted that the manner
of appointment of non teaching staff is
regulated by the provisions contained under
Chapter 20 of the Ist Statute of Kanpur
University, whereas Statute 21.01, which is
in reference to Section 49(e) of Act of
1973, defines a salaried employee not being
a teacher of a college and Statute 21.02(1)
confers power upon the management to
make appointments of non teaching staffs.
10 All. Shesh Ram & Ors. Vs. State of U.P.
35
Under Statute 21.03 (4), the appointments
made by the Committee of Management
and the Principal are required to be
submitted for approval before the Director,
Higher Education and in case the same is
not approved within two months from the
date of its receipt, the appointments shall
be deemed to have been approved.

11. He further submitted that in view of
Section 60-E of Act of 1973, any action or
order contrary to any authority or committee
being per se illegal and arbitrary is liable to
be quashed.

12. He next submitted that appointment
of the petitioners has been made strictly in
accordance with Act of 1973, therefore,
payment of salary to them from State
Government cannot be denied.

13. He next submitted that one
Purushottam Singh, who has been appointed
on the post of Cataloguer in DAV College,
Kanpur vide order dated 22.12.1999 is being
paid salary from the State Government, as
there has been no embargo levied while
sanctioning his post, therefore, discrimination
between the petitioners while sanctioning the
post by imposing rider to not pay salary from
the State Government is in breach of
provisions of Articles 14 & 16 of the
Constitution of India.

14. Learned Senior Counsel for the
petitioners further submitted that salary is the
property of the employees and it cannot be
denied by levelling a rider in contravention to
statutes of Act of 1973 and the same is in
contravention to provisions of Article 300-A
of the Constitution of India.

15. He further submitted that the State
Government cannot impose conditions
through
executive
fiat,
which
are
inconsistent with the statutory provisions.
In support of his submissions, he placed
reliance upon certain judgments, which are
as under:

a) Dr. Rajinder Singh Vs. State
of Punjab and others; [(2001) 5 SCC 482].

b) Commissioner of Central
Excise, Bolpur Vs. Ratan Melting & Wire
Industries; [(2008) 13 SCC 1].

c) T.N. Housing Board Vs. N.
Balasubramaniun and others; [(2004) 6
SCC 85].

d) Punjab Water Supply and
Sewerage and others Vs. Ranjodh Singh
and others; [(2007) 2 SCC 491].

e)
Mahadeo
Bhau
Khilare
(MANE)
and
others
Vs.
State
of
Maharashtra and others; [(2007) 5 SCC
524].

f)
Sandur
Micro
Circuits
Limited Vs. Commissioner of Central
Excise, Belgaum; [(2008) 14 SCC 336].

g) Ajaya Kumar Das Vs. State of
Orissa and others; [(2011) 11 SCC 136].

16. On the other hand, learned
A.C.S.C. submitted that it is the Committee
of Management, who is aggrieved party
due to non providing of funds to ensure
payment of salary to the petitioners. He
further
submitted
that
against
non
sanctioned posts, liability of payment of
salary
lies
upon
the
Committee
of
Management and not upon the State
Government. In support of his submissions,
he placed reliance upon a full bench
judgment in the case of State of U.P. and
others
Vs.
C/M
Sri
Sukhpal
Intermediate College, Tirhut, Sultanpur
and others; [2015 (33) LCD 1398].

17. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.
36 INDIAN LAW REPORTS ALLAHABAD SERIES

18. To resolve the controversy
involved in the present writ petition, the
judgments relied upon by learned counsel
for the parties are being quoted below:

Judgments cited by learned
senior counsel for the petitioners:

a) Dr. Rajinder Singh Vs. State
of Punjab and others (Supra):

"7. The settled position of law is
that no government order, notification or
circular can be a substitute of the statutory
rules framed with the authority of law."

b) Commissioner of Central
Excise, Bolpur Vs. Ratan Melting &
Wire Industries (Supra):

"7. Circulars and instructions
issued by the Board are no doubt binding
in law on the authorities under the
respective statutes, but when the Supreme
Court or the High Court declares the law
on the question arising for consideration, it
would not be appropriate for the court to
direct that the circular should be given
effect to and not the view expressed in a
decision of this Court or the High Court. So
far as the clarifications/circulars issued by
the Central Government and of the State
Government are concerned they represent
merely their understanding of the statutory
provisions. They are not binding upon the
court. It is for the court to declare what the
particular provision of statute says and it is
not for the executive. Looked at from
another angle, a circular which is contrary
to the statutory provisions has really no
existence in law."

c)
Laxman
Dundappa
Dhamanekar
and
another
Vs.
Management of Vishwa Bahrata Seva
Samiti and another (Supra):

"11. The aforesaid non-statutory
rule was substituted in the Code by
government order dated 17.6.67 and whereas
the statutory Rules governing the method of
appointment of teacher came to be published
in the gazette on 31.1.78. It is, therefore,
manifest that non-statutory Rule 16 was
never intended to supplement the statutory
Rules and, therefore, not applicable in the
case of appointment of teacher in private
government aided institutions. Yet, there is
another reason why the non-statutory Rule 16
is not applicable in the case of appointment
of
teachers
in
the
institution.
The
administrative instructions pertaining to
grant-in-aid for secondary schools have been
issued with the object of extending and
improving institutions, and for that purpose a
sum of money is annually allocated by the
government for distribution as grant-in-aid to
schools subject to observance to the
conditions specified therein. The conditions
embodies in Rule 16 of the grant-in-aid code
provide for the conditions under which
financial assistance would be made available
to the Management of the institution by the
government. If there is a breach of the
conditions of the grants-in-aid, it is open to
the government either to suspend or cancel
the financial grant to the institution. But, such
breach of conditions of the grant-in-aid code
would not make the appointment of a teacher
in the institutions invalid when the method of
appointment of teachers in the institution is
fully covered by the Act and the statutory
rules. It is, however, true that for breach of
administrative instructions which have no
statutory force, a public servant or the person
guilty of such a breach can be subjected to
disciplinary action; but the same cannot be
pressed into service for action which has the
effect of modifying the statutory rules. We
are, therefore, of the view, that breach of
non- statutory Rule 16 would not render the
appointments of appellant invalid.

12. So far the second question
that arises for consideration is whether the
appellants having been appointed on
probation they would be deemed to have
10 All. Shesh Ram & Ors. Vs. State of U.P.
37
become regular teachers on expiry of
probationary period, we are not inclined to
go into that question in view of the fact that
even
though
the
appellants
were
probationers, their services could not be
ceased to have effect either by non
approval by the Head of the Department or
by their remaining absent from their
respective duties. There is no provision
either in the Act or the Rules providing for
automatic termination of services of a
teacher on account of being absent without
leave. If any teacher remains absent
without any leave, it is open to the
Management to terminate the services of
such teachers only after complying with the
provisions of the Act and the rules or
principles of natural justice. In the present
case, we do not find any provision either in
the Act or Rules providing for automatic
termination of service of a teacher in the
event of a teacher remaining absent
without leave. In the absence of such a
provision in the Act or Rules, the alleged
deemed termination of services of the
appellants without giving any opportunity
to the appellants was unlawful and
deserves to be set aside."

d) T.N. Housing Board Vs. N.
Balasubramanium and others (Supra):

"6.
......................................................................
............. It is not in dispute that the said
eligibility criteria are mandatory in nature
and the validity thereof had not been
questioned. If a Draftsman is to be
promoted to the post of Assistant Executive
Engineer, he must complete 15 years of
service in the said capacity, whereas the
Junior Engineer may have to complete only
10 years in the said post. Once the
eligibility criteria are considered to be a
prerequisite for giving effect to the
statutory
Regulations,
the
purported
executive
instructions
would
not
be
applicable. Once it is held that relying on
the basis of executive instructions in terms
of Regulation 28(a), the Draftsman who
have been getting higher salary are given
preference over the diploma-holder Junior
Engineers, the eligibility criteria contained
in the statutory Regulations would become
otiose; the logical corollary thereof would
be that the executive instructions would
prevail over the statutory Regulations.
Such a consequence would lead to an
absurdity and in that view of the matter, it
must be held that the executive instructions
cannot be given effect to."

e) Punjab Water Supply and
Sewerage Board Vs. Ranjodh Singh and
others (Supra):

"10. ............................................
Neither can the statutory bodies refuse to
fulfil such constitutional duty, nor can the
State issue any direction contrary to or
inconsistent
with
the
constitutional
principles adumbrated under Articles 14
and 16 of the Constitution of India. The
purported directions of the State were
otherwise bad in law insofar as thereby the
statutory
rules
were
sought
to
be
superseded. A circular letter furthermore is
not a statutory instrument. It was not even
issued by the State in exercise of the power
under Article 162 of the Constitution of
India. Even a scheme issued under Article
162 of the Constitution of India, would not
prevail over statutory rules.

14. Once it is held that the terms
and conditions of service including the
recruitment of employees were to be
governed either by the statutory rules or
rules framed under the proviso to Article
309 of the Constitution of India, it must
necessarily be held that any policy decision
adopted by the State in exercise of its
jurisdiction under Article 162 of the
Constitution of India would be illegal and
without jurisdiction.
38 INDIAN LAW REPORTS ALLAHABAD SERIES

16. ................................ To accede
to such a proposition would be to introduce a
new head of appointment in defiance of rules
or it may have the effect of setting at naught
the rules.

19. ........................... It failed to
notice that a policy decision cannot be
adopted by means of a circular letter and, as
noticed hereinbefore, even a policy decision
adopted in terms of Article 162 of the
Constitution of India in that behalf would be
void. Any departmental letter or executive
instruction cannot prevail over statutory rule
and
constitutional
provisions.
Any
appointment, thus, made without following
the procedure would be ultra vires.

20. This Court, recently in Indian
Drugs & Pharmaceuticals Ltd. v. Workman
opined that rules of recruitment cannot be
relaxed and the courts/tribunals cannot direct
regularisation
of
temporary
appointees
dehors the rules, nor can it direct
continuation of service of a temporary
employee (whether called a casual, ad hoc or
daily - rate employee) or payment of regular
salaries to them."

f)
Mahadeo
Bhau
Khilare
(MANE)
and
others
Vs.
State
of
Maharashtra and others (Supra):

"7. Indisputably, the State of
Maharashtra has framed recruitment rules.
Any scheme by way of an executive
instruction in terms of Article 162 of the
Constitution of India, if violative of such
statutory
rules
would
not
be
legally
sustainable.

11. Appointments made without
following the statutory rules by the State and
that
too
without
any
remuneration
whatsoever was itself unconstitutional."

g)
Sandur
Micro
Circuits
Limited Vs. Commissioner of Central
Excise, Belgaum (Supra):

"6.
The
issue
relating
to
effectiveness of a circular contrary to a
notification statutorily issued has been
examined by this Court in several cases. A
circular cannot take away the effect of
notifications statutorily issued. In fact in
certain cases it has been held that the
circular cannot whittle down the exemption
notificatino and restrict the scope of the
exemption notification or hit it down. In
other words, it was held that by issuing a
circular a new condition thereby restricting
the scope of the exemption or restricting or
whittling it down cannot be imposed. The
principle is applicable to the instant cases
also, though the controversy is of different
nature."

h) Ajaya Kumar Das Vs. State
of Orissa and others (Supra):

"14. Neither the Circular dated
18-6-1982 nor the subsequent Circular
dated 18-6-1982 can override the statutory
provision contained in Rule 74(b) of the
Code if it results in reduction of pay of the
employee on promotion. That the Orissa
Service Code has been framed under
Article 309 of the Constitution of India is
not in dispute. It is well settled that the
statutory rules framed under Article 309 of
the Constitution can be amended only by a
rule or notification duly made under Article
309 and not otherwise. Whatever be the
efficacy of the executive orders or circulars
or instructions, statutory rules cannot be
altered or amended by such executive
orders or circulars or instructions nor can
they replace the statutory rules. The Rules
made under Article 309 of the Constitution
cannot be tinkered by the administrative
instructions or circulars.

15. Seen thus, upon promotion of
the appellant to the rank of Assistant
Engineer from SER, his pay in the
timescale of Assistant Engineer has to be
fixed as per statutory Rule 74(b), more
particularly, in a situation such as the
present one because by relying upon the
10 All. Shesh Ram & Ors. Vs. State of U.P.
39
Government Circulars dated 18-6-1982 or
19-3-1983 or 16-4-1971, the appellant's
scale of pay gets reduced. The State
Government
has
not
challenged
the
applicability of Rule 74(b) of the Code in
the matter. That being the position, the
appellant's pay has to be fixed in
accordance with Rule 74(b) of the Code
and not otehrwise."

Judgments
relied
upon
by
learned Additional C.S.C.:

State of U.P. and others Vs.
C/M Sri Sukhpal Intermediate College
(Supra):

"11. 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."

19. On perusal of afore-quoted
judgments, it is evident that settled position
of law is that no government order,
notification or circular can be a substitute
of the statutory rules framed with the
authority of law.

20.