# Shukla v. District Inspector of Schools

- **Citation:** (2010) 1 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-18
- **Case number:** Civil Misc. Writ Petition No. 16995 of 1992
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shukla-v-district-inspector-of-schools-41601
- **Pages:** 3

## Headnote

C.S.C.

U.P.
High
School
and
Intermediate
Colleges (Teachers and other Employees)
Payment of Salary Act 1971-Petitioner
offered appointment on Post of L.T.
grade
teacher
on
8.9.1991-while
substantive
vacancy
caused
due
to
retirement
of
earlier
substantive
appointee
on
30.06.1989
and
commission
failed
to
recommend
suitable candidate-appointment during
an imposed by State Government dated
29.06.1991-upheld
by
Hon'ble
High
Court-held-even sort term vacancy can
not be filed up without publication in
two newspaper in view of Radha Raijada
Case-not entitled for salary.

Held: Para 6

Learned
counsel
for
the
petitioner
referred to an interim order of the
Division Bench of this Court in Special
Appeal No.1237 of 2009 and claims that
in similar circumstance an interim order
has been granted and therefore, the
services of the petitioner may not be
interfered with. On examination of the
interim order of this Court it is found
that none of the issues referred above
have been considered, even otherwise it
may be recorded that the judgment of
this Court in the case of Ashika Prasad
Shukla Vs. District Inspector of Schools,
Allahabad
and
another
(1998)
3
U.P.L.B.E.C
1722
deals
with
adhoc
appointment against short term vacancy
and not against substantive vacancies. It
may be clarified that so far as short term
vacancies are concerned, appointment
was regulated by the Second Removal
Order of 1981 which did not require any
publication of advertisement. Therefore,
the Full Bench in the case of "Radha
Raizada
&
Ors.
Vs.
Committee
of
Management & Ors" reported in (1994) 3
UPLBEC 1551 laid down that even in
respect
of
short
term
vacancies,
advertisement in two news papers is
must.
However,
with
regards
to
substantive vacancies the same were to
be filled as per Ist Removal of Difficulties
1 All] Mohd. Naim V. State of U.P. and others

291
Order, 1981 and it specifically required
that on ad-hoc can be made only after
the
vacancies
were
advertised
in
newspaper.
Case law discussed:
1995
(3)
U.P.L.B.E.C
1387,
1992(1)
U.P.L.B.E.C 582, (1998) 3 U.P.L.B.E.C 1722,
(1994) 3 UPLBEC 1551.

## Text

290 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

affidavit having been filed the impugned
order dated 16.1.2007 is unsustainable.

Learned Standing Counsel contends
that
the
petitioner
has
filed
a
representation and he had a right to file an
appeal before the Secretary Basic Shiksha
Parishad. It is correct that an alternative
remedy is always available in such a
matter but in view of the law laid down in
the case of Whirlpool Corporation Vs.
Registrar of Trade Marks, Mumbai &
others, reported in 1998 (8) SCC, Page 1,
the aforesaid argument does not hold
water inasmuch as the impugned order is
absolutely vitiated as pointed out herein
above. In view of this, the order dated
16.1.2007
is
quashed.
The
Basic
Education Officer shall give a show cause
to the petitioner and, thereafter proceed to
pass an appropriate order in accordance
with law within three months from the
date of production of a certified copy of
this order before him.

The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 16995 of 1992

Ram Singh Katiyar

...Petitioner
Versus
Director of Education, U.P., Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri J.N. Singh
Sri A.K. Saxena

Counsel for the Respondents:
C.S.C.

U.P.
High
School
and
Intermediate
Colleges (Teachers and other Employees)
Payment of Salary Act 1971-Petitioner
offered appointment on Post of L.T.
grade
teacher
on
8.9.1991-while
substantive
vacancy
caused
due
to
retirement
of
earlier
substantive
appointee
on
30.06.1989
and
commission
failed
to
recommend
suitable candidate-appointment during
an imposed by State Government dated
29.06.1991-upheld
by
Hon'ble
High
Court-held-even sort term vacancy can
not be filed up without publication in
two newspaper in view of Radha Raijada
Case-not entitled for salary.

Held: Para 6

Learned
counsel
for
the
petitioner
referred to an interim order of the
Division Bench of this Court in Special
Appeal No.1237 of 2009 and claims that
in similar circumstance an interim order
has been granted and therefore, the
services of the petitioner may not be
interfered with. On examination of the
interim order of this Court it is found
that none of the issues referred above
have been considered, even otherwise it
may be recorded that the judgment of
this Court in the case of Ashika Prasad
Shukla Vs. District Inspector of Schools,
Allahabad
and
another
(1998)
3
U.P.L.B.E.C
1722
deals
with
adhoc
appointment against short term vacancy
and not against substantive vacancies. It
may be clarified that so far as short term
vacancies are concerned, appointment
was regulated by the Second Removal
Order of 1981 which did not require any
publication of advertisement. Therefore,
the Full Bench in the case of "Radha
Raizada
&
Ors.
Vs.
Committee
of
Management & Ors" reported in (1994) 3
UPLBEC 1551 laid down that even in
respect
of
short
term
vacancies,
advertisement in two news papers is
must.
However,
with
regards
to
substantive vacancies the same were to
be filled as per Ist Removal of Difficulties
1 All] Mohd. Naim V. State of U.P. and others

291
Order, 1981 and it specifically required
that on ad-hoc can be made only after
the
vacancies
were
advertised
in
newspaper.
Case law discussed:
1995
(3)
U.P.L.B.E.C
1387,
1992(1)
U.P.L.B.E.C 582, (1998) 3 U.P.L.B.E.C 1722,
(1994) 3 UPLBEC 1551.
(Delivered by Hon'ble Arun Tandon, J.)

1. Petitioner before this Court seeks
a writ of mandamus commanding the
respondent nos.3 and 4 to pay salary to
the petitioner w.e.f. 11.8.1991 and further
to declare the ban imposed by respondent
no.1 on appointments as illegal.

2. The facts in brief are as follows:-

A substantive vacancy on the post of
L.T. Grade Teacher became available in
the B.N. Inter College, Bhagwant Nagar,
Hardoi due to retirement of the earlier
incumbent on 30.6.1989. The provisions
of the Intermediate Education Act, 1921,
U.P.
Secondary
Education
Services
Selection Board Act, 1982 and U.P. High
School
and
Intermediate
Colleges
(Teachers
and
other
Employees0
(Payment of Salary) Act, 1971 are fully
applicable
to
the
teachers
of
the
institution. This vacancy according to the
petitioner was requisitioned to the U.P.
Secondary Education Services Selection
Board and since the Selection Board
failed to recommend a suitable candidate,
the Committee of Management decided to
make ad-hoc appointment on the said
post. It is stated that a resolution was
passed on 8.9.1991 offering appointment
to the petitioner against the said vacancy
on adhoc basis. This order according to
the petitioner is referable to the powers
vested in the Committee of Management
under Section 18 of the Act No.5 of 1982.
With
reference
to
the
aforesaid
appointment the petitioner has set up his
plea for salary. Reference has been made
to the telegram issued by the State
Government dated 29.6.1991, wherein
ban on appointments has been imposed.

3. I have heard learned counsel for
the parties and have gone through the
records of the writ petition.

4. Admittedly the appointment of
the petitioner was made when ban had
been imposed and was in-force. This
Court in the case of "Durgesh Kumari
Vs. State of U.P. And others" reported
in 1995 (3) U.P.L.B.E.C 1387 has
specifically upheld the ban imposed on
appointments against the substantive
vacancies was legal and valid. The
judgment of the Hon'ble Single Judge to
the contrary holding that the ban will not
apply to appointments under Section 18 in
the case of "Kumar Prabhabati Dikshit
Vs. U.P. Madhyamic Siksha Sewa
Ayog, Allahabad" reported in 1992(1)
U.P.L.B.E.C 582 has specifically been
over-ruled.

5. In view of the aforesaid
judgments of the Division Bench the
prayer for payment of salary or for
quashing of the ban must fail. The writ
petition is held to be devoid of merits and
it is accordingly dismissed.

6. Learned counsel for the petitioner
referred to an interim order of the
Division Bench of this Court in Special
Appeal No.1237 of 2009 and claims that
in similar circumstance an interim order
has been granted and therefore, the
services of the petitioner may not be
interfered with. On examination of the
interim order of this Court it is found that
none of the issues referred above have
292 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

been considered, even otherwise it may be
recorded that the judgment of this Court
in the case of Ashika Prasad Shukla Vs.
District
Inspector
of
Schools,
Allahabad
and
another
(1998)
3
U.P.L.B.E.C 1722 deals with adhoc
appointment against short term vacancy
and not against substantive vacancies. It
may be clarified that so far as short term
vacancies are concerned, appointment
was regulated by the Second Removal
Order of 1981 which did not require any
publication of advertisement. Therefore,
the Full Bench in the case of "Radha
Raizada & Ors. Vs. Committee of
Management & Ors" reported in
(1994) 3 UPLBEC 1551 laid down that
even in respect of short term vacancies,
advertisement in two news papers is must.
However, with regards to substantive
vacancies the same were to be filled as
per Ist Removal of Difficulties Order,
1981 and it specifically required that on
ad-hoc can be made only after the
vacancies were advertised in newspaper.

7. Even otherwise, interim orders do
not have any precedential value.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 34494 of 1994

Vijay Kumar Upadhayay
...Petitioner
Versus
Regional Dy. Director of Education, Agra
and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Bhushan
Ms. Rashmi Tripathi

Counsel for the Respondents:
C.S.C.

Uttar Pradesh Education Department
Administration (Delegation of Power)
First
Amendment
Rules
1973appointment of Class 4th employee in
government Girls Inter College-Rule 73
authorise the District Inspectoress of
School to appoint class 4th employeeswhere there is no post of District
Inspectress
of
School-said
power
exercisable by the D.I.O.S.-petitioner
was appointed as Class IVth employee
by D.I.O.S.-Regional Deputy Director
refused approval on pretext the Principal
is
the
appointing
authority-except
education
code
No
any
statutory
provision shown by standing counselheld-instructions can not override the
statutory provisions-order impugned not
sustainable quashed.

Held: Para 10

Apart from this, once Rules have been
framed
under
Article
309
of
the
Constitution then in the hierarchy of the
legislation, the said Rule will prevail. The
Education
Code,
which
has
been
compiled as an executive instruction,
does not have statutory force where the
field is already occupied under the Rules.
The Full Bench decision of this Court in
the case of Magan Ram Yadava Vs.
Deputy Director of Education and others,
(1980) UPLBEC 6 (FB) clearly supports
the aforesaid conclusion drawn. Learned
Standing Counsel has been unable to
point out any other Rule which may
substantiate the plea taken in the
counter-affidavit that the Principal was
the appointing authority and not the
District Inspector of Schools. In this
view of the matter on all counts the
order
dated
28.9.1994
cannot
be
sustained.
Case law discussed:
(1980) UPLBEC 6 (FB).

(Delivered by Hon'ble A.P. Sahi, J.)