# Shr Chandra Bhushan Singh v. District Basic Education officer, Azamgarh and others

- **Citation:** (2007) 2 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-06
- **Case number:** Civil Misc. Writ Petition No. 15033 of 1983
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shr-chandra-bhushan-singh-v-district-basic-education-officer-azamgarh-and-others-40892
- **Pages:** 5

## Headnote

Sri Indra Raj Singh
Sri A.N. Singh
Sri Awadh Behari Singh
S.C.

U.P. Recognised Basic School (In High
Schools) Recruitment & Conditions of
Service Rules of Teachers) Rules, 1978Rule-12-appointment
as
L.T.
grade
teacher-on
one
year
probation-after
expiry of one year-stood confirmed on
1.7.78-dis approval by Basic Education
officer
on
9.9.83-petitioner
possess
minimum qualification-teaching for a
long period-only reason disclosed by the
management that appointment made
without
following
the
procedure
prescribed
under
rule
1975-heldmanagement later can not turn aroundorder of disapproval-quashed with all
consequential benefits.

Held: Para 11

It was for the Management to obtain
requisite approval from the concerned
authority for the appointment of the
petitioner. The Management who offered
appointment to the petitioner later on
cannot turn around and say that the
appointment of the petitioner is illegal or
void.
Case law discussed:
2004 (2) UPLBEC-2070
1994 (3) ESC-117
1990 (1) UPLBEC-425
1993 (2) ESC-245
1993 ESC-231
1982 UPLBEC-365
2004 (2) UPLBEC-2070

## Text

2 All] Shri Chandra Bhushan Singh V. B.S.A, Azamgarh and others
357
7. In the present case the learned
Presiding Officer of the court fell in grave
legal error by issuing all those processes
simultaneously.

8. The application under section 482
Cr.P.C. is, therefore, allowed to this effect
that the order of the Presiding Officer
taking the accused Arvind in judicial
custody and sending him to jail is set
aside. Accused Arvind shall be released
forthwith in this case on bail if not wanted
in any other case. The order for issuing
processes under sections 82 and 83
Cr.P.C. against the remaining accused is
also set aside.

9. The learned counsel for the
applicants submitted that the accused
applicants are ready to appear before the
court below. They are allowed one
month's time to appear before the court
concerned
and
during
this
period
execution of non-bailable warrants against
them
shall
remain
stayed.
After
appearance of the accused, the Presiding
Officer of the court may release the
applicants on taking fresh bail bonds from
them and then he shall proceed with the
trial of the case in accordance with law.
Application allowed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2006

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 15033 of 1983

Shr Chandra Bhushan Singh ...Petitioner
Versus
District
Basic
Education
officer,
Azamgarh and others
 ...Respondents

Counsel for the Petitioner:
Sri V.B. Khare
Sri A.B. Singh

Counsel for the Respondents:
Sri Indra Raj Singh
Sri A.N. Singh
Sri Awadh Behari Singh
S.C.

U.P. Recognised Basic School (In High
Schools) Recruitment & Conditions of
Service Rules of Teachers) Rules, 1978Rule-12-appointment
as
L.T.
grade
teacher-on
one
year
probation-after
expiry of one year-stood confirmed on
1.7.78-dis approval by Basic Education
officer
on
9.9.83-petitioner
possess
minimum qualification-teaching for a
long period-only reason disclosed by the
management that appointment made
without
following
the
procedure
prescribed
under
rule
1975-heldmanagement later can not turn aroundorder of disapproval-quashed with all
consequential benefits.

Held: Para 11

It was for the Management to obtain
requisite approval from the concerned
authority for the appointment of the
petitioner. The Management who offered
appointment to the petitioner later on
cannot turn around and say that the
appointment of the petitioner is illegal or
void.
Case law discussed:
2004 (2) UPLBEC-2070
1994 (3) ESC-117
1990 (1) UPLBEC-425
1993 (2) ESC-245
1993 ESC-231
1982 UPLBEC-365
2004 (2) UPLBEC-2070

(Delivered by Hon'ble Prakash Krishna. J.)

1. By means of the present writ
petition
under
Article
226
of
the
358 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Constitution of India the petitioner has
sought a writ of Certiorari quashing the
order dated 9.9.1983 passed by the
District Basic Education Officer and a
writ
of
Mandamus
directing
the
respondents not to interfere with the
function of the petitioner as Assistant
Teacher in the institution and to quash the
order dated 12.9.1983 passed by the
Manager of the institution. Adarsh Junior
High School, Kamaluddinpur, Azamgarh
is an unaided institution and is not
governed by the' provisions of Payment of
Salaries Act, 1971. He was appointed as a
teacher in Junior High School in the year
1978 in C.T. grade. The petitioner
possesses
the
requisite
educational
qualification
and
was
selected
by
Selection Committee and the Committee
of Management in its meeting held on 25th
of
June,
1978
accepted
the
recommendation
of
the
Selection
Committee and appointed the petitioner
on probation of one year. The petitioner
joined the institution and is working as
teacher w.e.f. 1st of July, 1978. The
petitioner shall be deemed to have been
confirmed on expiry of probation period
in view of Rule 12 of U.P. Recognized
Basic School (Junior High Schools)
(Recruitment and Conditions of Service
of Teachers) Rules, 1978 and is not
related to any member of the Committee
of Management of the institution and as
such has no disqualification for being
appointed as a teacher in the institution.
The District Basic Education Officer by
letter
dated
9.9.1983
Annexure-2)
disapproved the appointment of the
petitioner as Assistant Teacher as he was
appointed on 1st of July, 1978 after
commencement of the Service Rules,
1978. In pursuance of the aforesaid letter
of the District Basic Education Officer,
the services of the petitioner has been
terminated by the institution by the order
dated 12.9.1983. Hence the writ petition.
A counter affidavit of Phool Chand,
Manager of the institution has been filed
wherein it has been stated that the
appointment
of
the
petitioner
was
terminated on 9.9.1983 under Rule 9 of
the U.P. Recognised Basic Schools
(Recruitment and Conditions of Service
of Teachers and Other Conditions) Rules,
1975. Further it has been stated that since
the appointment of the petitioner was not
in accordance with the aforesaid Rules
1975
so there is no question of
confirmation of petitioner under Rule 12
of Rules, 1978. The main defence is that
the procedure as prescribed under Service
Rule, 1978 was not followed in toto.
Therefore,
the
appointment
of
the
petitioner is illegal and void.

2. A supplementary counter affidavit
is on the record wherein it has been stated
that since the institution in question is
unaided institution and is not getting any
financial aid from the government, the
writ petition is basically directed against
the Committee of Management. The
appointment of the petitioner was not
made in accordance with the service rules.

3. The learned counsel for the
petitioner submitted that even though
there is no formal approval of the
appointment
of
the
petitioner,
the
petitioner is continuing as Assistant
Teacher since 1st of July, 1978. It was
fault of Management to send the papers
late to the District Basic Education
Officer. Attention was invited towards the
fact that an interim order was passed by
this Court on 2nd of December, 1983
staying the operation of the order of the
District Basic Education Officer dated 9th
of September, 1983. An application for
2 All] Shri Chandra Bhushan Singh V. B.S.A, Azamgarh and others
359
vacation of the said order was filed on
behalf of the Committee of Management.
The interim order was confirmed on 11th
of July, 1984. It was submitted that the
petitioner,
possesses
the
minimum
educational qualification and is teaching
in the institution since July, 1978 and .in
this view of the matter, if there was any
irregularity in his appointment, the
appointment cannot be cancelled at this
distance of time.

4. In reply, the learned counsel for
the respondent no.2 submitted that the
appointment of the petitioner was made
by
the
Committee
of
Management
contrary to the relevant service rules.
Reliance has been placed upon a Division
Bench Judgment of this Court in Ram
Ashrey Vs. District Judge, Bijnore
(2004) 2 U.P.L.B.E.C. 2070 and it was
contended that appointment/continuation
in service by interim order, does not
create any legal right in favour of the
appointee.

5. It is not in dispute that the
petitioner was selected and was appointed
as Assistant Teacher on 1st of July, 1978.
He is working since then. In the counter
affidavit filed on behalf of the Committee
of Management it is not denied that the
petitioner is working since 1st of July,
1978. It is not clear either from the writ
petition from the counter affidavit filed on
behalf of the respondent no.2 as to when
the papers were sent by the Committee of
Management for obtaining approval of the
petitioner's
appointment.
It
was
encumbent
upon
the
Committee of
Management to follow the procedure
prescribed
by
law
before
offering
appointment letter to the petitioner. In the
counter affidavit it is not the case of the
Committee of Management that the
petitioner played any fraud or adopted any
deceitful means to obtain the appointment
in question. It does not lie in the mouth of
the Committee of Management who
appointed the petitioner, to say that the
appointment of the petitioner was made
without
following
the
prescribed
procedure.
The
Committee
of
Management is stopped to challenge the
legality and validity of the appointment of
the petitioner as Assistant Teacher in the
institution
in
question
as
he
is
uninterruptedly working in the institution
since 1st of July, 1978.

6. A Division Bench of this Court in
Rajendra Prasad Srivastava Vs. District
Inspector of Schools 1994 (3) ESC 117
has held that it will be highly unfair to
remove a person from service after about
20 years on the ground that his initial
appointment was illegal. Smt. Rani
Srivastava Vs. State of U.P. (1990J 1
UPLBEC 425 is an authority for the
proposition
that
the
Committee
of
Management who appointed the Head
Mistress initially on probation cannot put
to an end the appointment after 5 years for
infirmity in making the appointment.

7. The Apex Court in Dr. M.S.
Mudhol and others Vs. S.D. Halegkar
and others 1993 (2) E.S.C. 245 has held
that it would be iniquitous to set aside the
appointment of the Principal of the private
aided School who was appointed without
having requisite qualification after 12
years for default of Director of Education
and Selection Committee.

8. The Apex Court in Miss Rekha
Chaturvedi Vs. University of Rajasthan
1993 ESC 231 held that selection of
candidates was illegal but refused to set it
aside as selected candidates have been
360 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
working in their respective posts for the
last almost 8 years.

9. In Shanti Devi Verma Vs. Deputy
Director
of
Education,
1982
U.P.L.B.E.C. 365 it has been held by this
Court that if a candidate lacks prescribed
qualification at the time of appointment
but such appointment was not obtained by
fraud, it will be case of irregular
appointment and as such disqualification
can be cured by that teacher by getting
himself qualified after his appointment.

10.

In
view
of
the
above
pronouncements particularly taking into
consideration that it is not a case of any
fraud or connivance and the petitioner has
put in best part of his life in service, it is
not desirable at this distance of time to
uphold the order the respondent no.1
refusing to approve the appointment of
the petitioner. There is absolutely no
explanation why the
Committee of
Management sat over the matter for a
period of about 5 years.

11. Ram Ashrey Vs. District Judge,
Bijnore (2004) 2 U.P.L.B.E.C. 2070 was
relied upon by the learned counsel for the
respondent no. 2. The said case is in
respect of a temporary employee. It has
been held that a temporary employee has
no right to hold the post and his services
are liable to be terminated without
assigning any reason. In that connection,
it has been held that no litigant can derive
any benefit from mere pendency of a case
in court of Law, as the interim order
always merges in the final order to be
passed in the case and if the writ petition
is ultimately dismissed, the interim order
stands nullified automatically. In para 44
of the report it has been held that
appointment/continuation in service by
interim order, does not create any legal
right in favour of the appointee. There is
no quarrel to the above proposition of
law. But the said proposition is not
applicable to the facts of the present case
in as much as the petitioner was appointed
on a substantive vacancy on a permanent
post. It was for the Management to obtain
requisite approval from the concerned
authority for the appointment of the
petitioner. The Management who offered
appointment to the petitioner later on
cannot turn around and say that the
appointment of the petitioner is illegal or
void. It is of some interest to note that this
Court on a stay vacation application filed
on
behalf
of
the-Committee
of
Management has observed as follows:-

"At the instance of the Committee of
Management I am not prepared to vacate
the Interim order dated 2.12.1983. The
application is rejected."

In
any
case,
the
contesting
respondent no.2 cannot be heard taking
shelter behind his own wrong.

12. In view of the above discussion,
the
writ
petition
is
allowed.
The
impugned order dated 9.9.1983 filed as
Annexure - 2 to the writ petition so far as
it relates to the disapproval of the
appointment of the petitioner as Assistant
Teacher
is
concerned,
is
quashed.
Resultantly,
the
consequential
order
issued by the respondent no.2 is also
quashed. The respondents are commanded
not to interfere with the functioning of the
petitioner as Assistant Teacher in the
institution. No order as to costs.
Petition allowed.
----------
2 All] Anit Devi V. State of U.P. and another
361
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No. 6444 of 2006

Anita Devi
...Complainant/Revisionist
Versus
State of U.P. & another ...Opposite parties

Counsel for the Revisionist:
Sri. Narendra Kumar

Counsel for the Opposite parties:
A.G.A.

Code of Criminal Procedure Section 204
Summoning
order-marshelling
of
evidence
and
critical
appreciation
thereof
held-not
proper-suffer
from
patent illegality cannot be allowed to
sustained.

Held Para 4:

The impugned order indicates that at the
stage of Section 203 Cr.P.C., the trial
court has passed a judgment deciding a
case and have the said impugned order
suffers from patent illegality and cannot
allowed to be sustained in law.

(Delivered by Hon'ble Vinod Prasad, J.)

1. Heard learned counsel for the
revisionist and the learned A.G.A.

2. The revisionist is aggrieved by an
order-dated 2.9.2006 passed by C.J.M.,
Azamgarh in Complaint Case No. 3989 of
2006 (Anita versus Shailesh Pratap Singh)
has been dismissed under Section 203
Cr.P.C.

3. A perusal of the impugned order
indicates that C.J.M. Azamgarh has
transgressed the jurisdiction vested in him
under Section 203 Cr.P.C. and scanned
the allegations of the complaint as if he is
finally deciding the trial. Needless to say
that marshelling of evidence and critical
appreciation thereof is not required at the
stage of Section 203 Cr.P.C., for the
purposes of summoning under Section
204 Cr.P.C. only a prima facie case is sine
qua non. If the allegations are perceptibly
clear making out an offence then the
accused has to be summoned. Critically
appreciating the allegations at the stage of
summoning by the Magistrate is not
sanctified by the law. There are various
stages in complaint cases during the
course of the trial where the Magistrate or
the trial court is supposed to scan the
evidence. The first stage is under Section
204 Cr.P.C. where only a prima facie case
has to be looked into. Second stage is at
the stage of Section 245 Cr.P.C. where the
trial court is to decide whether the
accused can be charged with any offence
or not. At that stage the trial court can
discharge the accused if in its opinion the
accused has not committed any offence.
The third stage is the stage of finally
deciding the case whether the trial court is
entitled to go into the whole evidence and
all the materials to critically appreciate
and decide the case finally.

4. The impugned order indicates that
at the stage of Section 203 Cr.P.C., the
trial court has passed a judgment deciding
a case and have the said impugned order
suffers from patent illegality and cannot
allowed to be sustained in law.

5. In this view of the matter, this
revision is allowed at the admission stage
itself. The impugned order dated 2.9.2006
passed by C.J.M. Azamgarh in Complaint
Case No. 3989 of 2006, Anita versus