# Shobh Nath Singh v. State of U.P. and others

- **Citation:** (2002) 3 ILRA 906
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-13
- **Case number:** Special Appeal No. 387 of 2001
- **Bench:** S.K. Sen, C.J. R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shobh-nath-singh-v-state-of-u-p-and-others-40034
- **Pages:** 7

## Headnote

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
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3 All] Shobh Nath Singh V. State of U.P. and others 907
regular
selection
was
made.
The
respondent no. 4 having been regularly
selected the continuance of the appellant
would cease from the date of his joining.
Case law discussed:
1994 (3) UPLBEC - 1551, 1998 (3) ESC
2006 ( Alld), 1999 (3) ESC 1950 ( Alld),
1987 (4) ScC -525 1993 HVD (Alld)-
Vol. IV 21

## Text

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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
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3 All] Shobh Nath Singh V. State of U.P. and others 907
regular
selection
was
made.
The
respondent no. 4 having been regularly
selected the continuance of the appellant
would cease from the date of his joining.
Case law discussed:
1994 (3) UPLBEC - 1551, 1998 (3) ESC
2006 ( Alld), 1999 (3) ESC 1950 ( Alld),
1987 (4) ScC -525 1993 HVD (Alld)-
Vol. IV 21

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

1. The present Special Appeal has
been filed against the judgment and order
dated 13.7.2000 passed by the learned
Single Judge, whereby the writ petition
filed by the appellant- writ petitioner has
been dismissed.

2. Briefly stated the facts giving rise
to the present Appeal are that a post of
lecturer in English in Indira Gandhi
Intermediate College, Jamah, Mauaima,
district Allahabad (hereinafter referred to
as the Institution) was sanctioned on
11.12.1981 by the State Government. One
Sri R.P. Ojha was appointed as an adhoc
lecturer under the provisions of Second
Removal of Difficulties Order 1981. The
Committee
of
Management
of
the
Institution intimated the vacancy to the
U.P.
Secondary
Education
Services
Commission (hereinafter referred to as the
commission) as provided under Section
18 of the U.P. Secondary Education
Services Selection Boards Act, 1982
(hereinafter referred to as the Act). The
Commission
advertised
the
post
in
question
in
the
newspapers
on
11.8.1984,R.P. Ojha, who was working as
adhoc lecturer in English, went on leave
on 3.1.1985. Subsequently, he also
resigned on 1.12.1985. His resignation
was accepted by the committee of
Management on 1.1.1986. The committee
of
Management,
put
a
notice
on
10.11.1985, on the notice Board for filling
up the vacancy which had occurred due to
leave taken by A.P. Ojha and on
1.12.1985 the Committee of Management,
resolved to appoint the appellant writ
petitioner. The appellant- writ petitioner
was given appointment on adhoc basis on
2.12.1985. The District Inspector of
Schools, vide order dated 17.2.1985,
approved
the
appointment
of
the
appellant- writ petitioner.

3. It appears, that the Commission,
selected one Sri G.P. Misra, respondent
no.4, on the post of lecturer in English
vide notification dated 7.7.1989. When
Sri G.P. Misra, was not being given
appointment
by
the
Committee
of
Management despite instructions given by
the District Inspector of Schools, he
approached this Court by filing Civil
Misc. Writ Petition No. 2695 of 1990
seeking direction to the Committee of
Management to issue appointment letter
for the post of lecturer in English. This
Court issued an interim mandamus on
17.2.1990
to
the
Committee
of
Management, either to issue appointment
letter to Sri G.P. Misra or to show cause.
Pursuant thereto, the Committee of
Management issued appointment letter
dated 30.1.1992 to Sri G.P. Misra, who
joined the Institution on 7.2.1992.

4. The appellant- writ petitioner was
claiming regularisation on the ground that
he was entitled for regularisation under
section 33-A(1-C) of the Act, as amended
in the year 1991. He filed Civil Misc.
Writ Petition No. 7988 of 1992 before this
Court. He also prayed for an interim order
and application for such interim order was
rejected.. However, the District Inspector
of Schools on the representation made by
the appellant- writ petitioner, regularised
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908 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
his services vide order dated 19.2.1992
which order was subsequently cancelled
on 26.3.1992. The order dated 26.3.1992
was challenged by the appellant - writ
petitioner before this Court by filing civil
misc. writ petition no. 17534 of 1992. The
said writ petition has been dismissed by
the learned single Judge vide judgment
and order dated 13.7.2000, which order is
impugned in the present special Appeal.

5. We have heard Sri Shailendra
learned counsel for the appellant- writ
petitioner, Sri H.N.Pande learned counsel
for the respondent no. 4 and Sri Sabhajit
Yadav
learned
Standing
Counsel
appearing for the State- respondents.

6. The learned counsel for the
appellant- writ petitioner submitted that in
view of Section 33-A (1) of the Act, the
service of Sri R.P. Ojha stood regularised
on 12.6.1985 since he was appointed on
adhoc post in substantive vacancy and,
therefore, the Commission could not have
proceeded for selection of regular lecturer
in English for the Institution. Thus, the
selection of the respondent no. 4 is wholly
illegal and contrary to law. He further
submitted that the District Inspector of
Schools vide order dated 19.2.1992 had
regularised the services of the petitioner
which order was subsequently cancelled
on 26.3.1992 without giving any show
cause notice or opportunity of hearing to
the petitioner and, therefore, the said
order having been passed in gross
violation of principle of natural justice,
equity and fair play, cannot be sustained
and ought to have been set-aside.
According to him, the services of the
appellant- writ petitioner had rightly been
regularised under Section 33-A(1-C) of
the Act and, therefore, on merit also, the
order dated 26.3.1982 is liable to quashed.
7. It may be mentioned here that
when regular selection was being made,
the
appellant
writ
petitioner
had
approached this Court by filing civil misc.
writ petition no. 12180 of 1986. The writ
petition was disposed of vide judgment
and order dated 16.12.1986 with the
observations that the appellant- writ
petitioner would continue till the regularly
selected candidates joins the post in
question.

8. The learned counsel for the
appellant-
writ
petitioner
further
submitted that at the time when the
petitioner was appointed in a short term
vacancy, there was no requirement under
law to advertise the vacancy in two news
papers and, thus, his appointment could
not be invalidated on the ground that the
vacancy was only notified on the notice
board and not advertised in two
newspapers as held by the Full Bench of
this Court in the case of Radha Raizada
and
others
vs.
Committee
of
Management, Vidyawati Darbari Girls
Inter College and others (1994) 3
UPLBEC 1551. He relied upon the
decision of the Division Bench of this
court in the case of Ashika Prasad Shukla
vs. The District Inspector of Schools,
Allahabad and another (1998) 3 SC 2006
(All) wherein it has been held that the
decision of Full Bench of this Court in the
case of Radha Raizada would not apply to
the appointments made prior to the said
decision as it has only prospective
operation. He further submitted that even
though the petitioner was appointed
against leave vacancy, but after the
resignation of Sri R.P.Ojha was accepted,
it was converted into substantive vacancy
and since the petitioner continued to work
on the said post, in view of the order
passed by this Court in civil Misc. Writ
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3 All] Shobh Nath Singh V. State of U.P. and others 909
Petition No. 12180 of 1986 decided on
16.12.1986 (filed by the appellant- writ
petitioner) he would be deemed to be
working
on
ad
hoc
post
against
substantive vacancy and entitled for
regularisation of his service. He submitted
that the decision of the Full Bench of this
Court in the case of Smt. Pramila Misra
vs. Deputy Director of Education , Jhansi
Division, Jhansi and others (1997) 2
UPLBEC 1329, would not be applicable.
He also relied upon the division Bench
decision of this Court in the case of Raj
Kumar Verma and another vs. District
Inspector of Schools, Saharanpur and
others 1999 (3) ESC 1950 (All). He
further submitted that in any event, the
District Inspector of Schools having once
passed an order of regularisation cannot
cancel the same as he has no power to
review. In support of this submission, he
relied upon the decision of Hon. Supreme
Court in the case of Dr. (Smt.) Kuntesh
Gupta vs. Management of Hindu Kanya
Mahavidyalaya, Sitapur (U.P.) and others
reported in (1987) 4 SCC 525.

9. Sri H.N. Pande, learned counsel
for the respondent no. 4 submitted that Sri
R.P.Ojha who was appointed as adhoc
lecturer in English in the Institution went
on leave without pay w.e.f. 3.1.1985 and
he
resigned.
The
commission
had
advertised the post on 11.8.1984 pursuant
to the requisition sent by the Institution.
The
appellant-
writ
petitioner
was
appointed on ad hoc basis against short
term vacancy/leave vacancy of Sri R.P.
Ojha the adhoc lecturer The appellant writ
petitioner's appointment was made not
through
any
advertisement
in
the
newspaper. The respondent no. 4 was
selected
by
the
commission
vide
notification dated 7.7.1989 and he had
been
given
appointment
only
on
30.1.1992
pursuant
to
the
interim
mandamus issued by this Court. Since
then he is working and also getting his
salary and he had joined the post of
lecturer in English after resignation from
his
regular
service
from
postal
department. He further submitted that
when the appellant writ petitioner had
approached this court in the year 1986, by
filing Civil Misc. Writ Petition No.12180
of 1986, this Court had disposed of the
writ petition with the observation that he
would continue till regular selection is
made. Thus, it is not open to the
appellant- writ petitioner to question the
selection of the respondent no. 4 as his
continuance on the post was only till
regular selection is made which has been
made in the present case. Thus, he has no
right to continue. He further submitted
that the appellant- writ petitioner does
not fulfil the conditions mentioned in
Section 33-A (1-C) of the Act, as he was
not
appointed
against
substantive
vacancy. He shall continue only against
leave vacancy or short-term vacancy.
Further the regular selection has already
been made by the Commission and,
therefore, in view of sub section 3 of
Section
33-A,
regularisation
of the
appellant- writ petitioner should not have
been made at all. Since the regularisation
was done illegally without there being
available any post of lecturer in English in
the Institution, the District Inspector of
Schools was justified in canceling the
same. He relied upon a decision in the
case of Jagdish Singh Kushwaha vs. U.P.
Secondary
Education
Services
Commission and others 1993 HVD (Alld)
Vol. IV 21 wherein this Court has held
that for claiming regularisation under
Section 33-A (1-C) of the Act, the
following five conditions have to be
fulfilled and if any one of the five
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910 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
conditions mentioned is not fulfilled, such
teacher cannot be regularised. These five
conditions are as follows:

"1. The adhoc appointment should be
prior to July, 1988,
2. The appointment should be against a
substantive vacancy,
3. The
appointment
should
be
in
accordance with section 18 of the Act,
4. The candidate should either possess
qualifications prescribed under the
Intermediate Education Act 1921 or
he should have been exempted from
the requirement or possessing the said
qualifications, and
5. The candidate should have been
continuously serving the institution
from ;the date of adhoc appointment
till the commencement of U.P. Act
No. 1991 (6.4.1991)."

10. Having heard the learned counsel
for the partiers, we find that the following
facts are not in dispute.

11. The appellant writ petitioner was
appointed on 2.12.1985 when Sri R.P.
Ojha, the then adhoc lecturer in English in
the Institution, was on leave without pay.
He
submitted
his
resignation
on
1.12.1985,
which
was
accepted
on
1.1.1986. The appellant writ petitioner
had earlier approached this Court by filing
Civil Misc. Writ Petition No. 12180 of
1986 which was disposed of with the
direction that he would continue till the
regularly selected candidate comes. His
continuance on the post was on account of
order passed by this Court. The post of
lecturer in English was also advertised by
the
Commission
on
11.1.1984
and
respondent no. 4 was selected vide
notification
dated
7.2.1989
by
the
Commission.
Since the appellant- writ petitioner
has not challenged the selection of the
respondent no. 4 we are not called upon to
decide the validity of his selection. The
only question for consideration is as to
whether the appellant- writ petitioner
should have been regularised under
Section 33-A(1-C) of the Act or not ?
Further, whether the District Inspector of
Schools, was justified in canceling the
earlier order of regularisation of the
appellant- writ petitioner or not?

12. It is not in dispute that the
appellant writ petitioner was appointed in
leave vacancy. It was not a substantive
vacancy. The Full Bench of this Court in
the case of Smt. Pramila Misra (supra) has
held that a teacher appointed by the
management of the institution on ad hoc
basis in a short term vacancy (leave
vacancy/suspension vacancy) which is
subsequently converted into a substantive
vacancy in accordance with the provisions
of the Act, Rules and Orders (on death
resignation, dismissal or removal of the
permanent incumbent), cannot claim a
right to continue. He has, however, a right
to be considered alongwith other eligible
candidates for adhoc appointment in the
substantive vacancy if he possesses the
requisite qualification. In this view of the
matter, the petitioner could not have
continued after 1.1.1986 on the post of
lecturer in English when the post, on
which he was appointed on short term
vacancy was converted into substantive
vacancy. His continuance was on account
of
action
of
the
Committee
of
Management and under the order passed
by this Court. His appointment was also
not made under Section 18 of the Act
which provides for notifying the vacancy
by the Management to the Commission
and the Commission had failed to
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3 All] Shobh Nath Singh V. State of U.P. and others 911
recommend any suitable candidates for
being appointed as teacher within one
year from the date of such notification or
the post of such teacher has actually
remained vacant for more than two
months only then the Management was
given right to appoint adhoc teacher.

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 year 1986 he was directed to
continue till the regular selection was
made. The respondent no. 4 having been
regularly selected the continuance of the
appellant would cease from the date of his
joining.

14. The principles laid down in the
case of Raj Kumar Verma (supra) relied
upon the learned counsel for the appellant
writ petitioner is not applicable in the
present case in as much as in the aforesaid
case, this Court has; held that a teacher
appointed in a short term vacancy on or
before the date specified in sub- clause (a)
(i) of sub section (1) of Section 33-B if
not found suitable and eligible to get
substantive appointment would cease to
hold the post on such date as the State
Government may by order specify and not
by the date the short term vacancy came
to be converted into substantive vacancy.
Since in the present case, the appointment
of appellant writ petitioner has not been
found to be in accordance with Section 18
of the Act, he is not entitled for
regularisation.

15. Since we have held that the
appellant writ petitioner was not entitled
for regularisation, the order passed by the
District Inspector of Schools on 26.3.1992
where by he has cancelled his earlier
order of regularisation dated 19.2.1992,
setting right the legal position, call for no
interference in exercise of powers under
Article 226 of the Constitution of India
even where neither any notice to show
cause nor any opportunity of hearing was
afforded as in the present case the
appellant writ petitioner has been afforded
adequate opportunity of hearing by this
Court to prove his case for regularisation.

16. So far as the contention that the
services of Sri R.P. Ojha who was
appointed on adhoc basis against a
substantive vacancy of lecturer in English
in the Institution stood regularised on
12.6.1985 and the post being not vacant
and not open for selection by the
Commission is concerned, we find that
Sri R.P.Ojha had proceeded on leave
without pay since 3.1.1985 and did not
join thereafter. He did not claim any
regularisation, which required scrutiny
under Section 33-A of the Act. Thus, the
post was rightly filled up by the
Commission.
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912 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
17. In view of the foregoing
discussions, we do not find any merit in
the Special Appeal and it is dismissed.

However, there shall be no order as
to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD NOVEMBER 21, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S.RAFAT ALAM, J.

Income Tax Appeal No. 122 of 2001

The
Commissioner
of
Income
Tax,
Bareilly and another

...Appellants
Versus
M/s C.L. Gupta & Sons, Moradabad

 ...Respondents

Counsel for the Appellate:
Sri A.N.Mahajan, S.C.

Counsel for the Respondents:
Sri Vikram Gulati

Income Tax Act 1961 Section 260A-
Section
43-B-
Deduction
of
Rs.
3,56,541/- claimed by assessee- towards
custom duty- for assessment year 198889- not allowed by Assessing Officer as
the payment was made in March 1987-
appeal dismissed on the ground- the
order is not appealable- both orders set
a
side-
deduction
held
permissible
appeal allowed .(Held Para10).

In view of clear provisions of law, the
deduction cannot be allowed in the
assessment year 1988-89. In our view,
both the learned Income Tax Appellate
Tribunal as well as the Commissioner of
Income Tax (Appeals) fell in error in
holding that since the assessee firm
debited the cost of the goods imported
including the duty paid on delivery of
goods in the trading account in April
1987, and before the actual delivery of
the goods, the value of the goods and
custom duty paid thereon was shown in
the balance sheet as document in hands
therefore
the
deduction
should
be
allowed in the assessment year 1988-89,
is contrary to the prescription of law.
Case law discussed:
(1997)224 ITR-677
(2002) 254 ITR-498

(Delivered by Hon'ble S.Rafat Alam, J.)

1. This appeal is under Section 260A of the Income Tax Act, 1961 (in short
the Act) against the judgment and order of
the Income Tax Appellate Tribunal dated
11.2.1999 in ITAT
No.
6797/D/92
whereby the appeal of the revenue
appellant challenging the order of the
Commissioner Income Tax (Appeals) was
dismissed.

2. The short question involved in
this appeal is as to whether in view of the
provisions contained in Section 43-D of
the Act, the assessee can claim deduction
for the sum paid against the custom duty
in previous years. In other words, whether
the benefit for the sum paid against the
custom duty can be claimed in the
subsequent year or the benefit of such
deduction can only be allowed in the year
in which the actual payment is made.

3. The admitted fact, in brief, is that
in the assessment proceeding for the
assessment year 1988-89 the Assessing
Officer found that the assessee debited a
sum of Rs.3,56,541/- in March 1987
being the custom duty paid in relation to
the import of brass scrap weighing 17.443
kg. It was disclosed by the assessee that
the aforesaid brass scrap had been shipped
from Rotter Dam vide bill of lading dated
7.1.1987. The custom house agent of the