# Sita Ram v. D.I.O.S. and others

- **Citation:** (2002) 2 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-23
- **Case number:** Special Appeal No. 223 of 1993
- **Bench:** S.K. Sen, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sita-ram-v-d-i-o-s-and-others-39039
- **Pages:** 8

## Headnote

U.P. Intermediate Education Act 1921-
Section 16 f (i)- Salary- appointment of
C.T. grade Teacher- unless approved by
the DIOS- not entitled for salary from
State fund.

Held- Para 10

Unless the appointment of a teacher is
approved, he does not acquire the status
of teacher nor entitle to salary from the
State fund.
Case law discussed:
1997 (10) SCC. 715- Relied on.

U.P. Intermediate Education Act-S-16GG- Regulation- appointment as C.T.
grade teacher on 25.6.72 again joined on
1.7.75- appointment never approved by
the DIOS- not entitle for Regularisation.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
638
Held - Para 16 and 19

We have already considered the claim of
the petitioner and have taken in view
that since petitioner's appointment was
never approved by District Inspector of
Schools, he never acquired the status of
teacher,
when
the
petitioner
never
acquired the status of teacher in any
capacity, the question of regularisation
of his services does not arise. The claim
of
regularisation
as
contended
by
counsel for the appellant in wholly
misconceived. Petitioner having never
acquired status of teacher there is no
question of his being considered for
regularisation.

## Text

http://www.allahabadhighcourt.nic.in
2 All] Sita Ram V. D.I.O.S. and others
637
Controller. The petitioner himself has
brought on record the order of the
Controller after the order dated 7.7.2000
i.e.order dated 22.12.2000 and 3.1.2000
of the Controller of molasses Annexure -9
and 10 to the writ petition. Looking to the
aforesaid order dated 3.1.2002 it is clear
that the State Government for the year
2001-2002 has made sale of molasses
100% free which means that all the
molasses can be sold by sugar factories.
The said order, however, has put certain
restriction on the import of molasses and
regarding payment of administrative fee.
Section 8 empowers the Controller of
molasses to require occupier of the sugar
factory to sell and supply in the
prescribed manner such quantity of
molasses as specified in the order.
However, from the orders issued even
subsequent to 22.6.2000 it is clear that the
control is still exercised by the Controller
of molasses regarding sale and supply of
molasses. In any view of the matter
section 7-A is still in force. The petitioner
himself has made an application under
Section 7-A. The question in the writ
petition has arisen as to petitioner's
application has rightly been rejected or
not. For the reasons which we have given
above we are satisfied that the application
of the petitioner was rightly rejected. The
fact that sugar is hundred per cent free
and there is no control on the price can in
no manner dilute the applicability of
Section 7-A. Petitioner's claim in the writ
petition is to be considered in accordance
with Section 7-A. From the fact that the
petitioner himself has made an application
under Section 7-A and he can succeed
only when his application comes within
the four corners of Section 7-A . Thus the
third submission of the counsel for the
petitioner can also not be accepted and we
hold that the application of the petitioner
was rightly rejected.

21. In view of the foregoing
discussions and the reasons given above
we do not find any merit in this writ
petition. The writ petition is accordingly
dismissed. No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD AUGUST 23, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 223 of 1993

Sita Ram

...Petitioner
Versus
District Inspector of Schools and others

 ...Respondents

Counsel for the Petitioner:
Shri A.N. Tripathi

Counsel for the Respondents:
Shri Ran Vijay Singh, S.C.

U.P. Intermediate Education Act 1921-
Section 16 f (i)- Salary- appointment of
C.T. grade Teacher- unless approved by
the DIOS- not entitled for salary from
State fund.

Held- Para 10

Unless the appointment of a teacher is
approved, he does not acquire the status
of teacher nor entitle to salary from the
State fund.
Case law discussed:
1997 (10) SCC. 715- Relied on.

U.P. Intermediate Education Act-S-16GG- Regulation- appointment as C.T.
grade teacher on 25.6.72 again joined on
1.7.75- appointment never approved by
the DIOS- not entitle for Regularisation.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
638
Held - Para 16 and 19

We have already considered the claim of
the petitioner and have taken in view
that since petitioner's appointment was
never approved by District Inspector of
Schools, he never acquired the status of
teacher,
when
the
petitioner
never
acquired the status of teacher in any
capacity, the question of regularisation
of his services does not arise. The claim
of
regularisation
as
contended
by
counsel for the appellant in wholly
misconceived. Petitioner having never
acquired status of teacher there is no
question of his being considered for
regularisation.

(Delivered by Hon'ble Ashok Bhusan, J.)

1. Heard Sri A.N. Tripathi, learned
counsel appearing for the appellant and
Sri Ran Vijay Singh, learned standing
counsel for the respondent.

2. This appeal has been filed by the
appellant
against
judgement
dated
16.11.1992 passed in writ petition no.
9876 of 1988 Sita Ram versus District
Inspector of Schools, Gorakhpur and
another. The learned Single Judge vide
his judgement dated 16.11.1992 dismissed
the writ petition.

Facts giving rise to this appeal
briefly stated are:

3.

Jawahar
Shiksha
Niketan
Uchchtar Madhyamik Vidyalaya, Jangal
Baban. Bhaura Bari, Gorakhpur is an
institution governed by U.P. Intermediate
Education Act 1921.

The appellant hereinafter referred as
petitioner claims to have been appointed
as untrained Teacher in C.T. grade in
pursuance of appointment letter dated
25.6.1972. The appointment letter which
has been filed by the petitioner discloses
that
said
appointment
was
up
to
20.5.1973. Further case of the petitioner is
that he was allowed to continue even after
20.5.1973 and was sanctioned one year
leave from 1.7.1974 to 30.6.1975 for
under going L.T. Training, petitioner was
permitted to join the institution on
1.7.1975. In the year 1975 it is stated that
headmaster of the institution made certain
appointment in C.T. grade. The petitioner
alongwith certain other teacher challenged
those appointment in this Court by means
of writ petition no. 11192 of 1975 which
was
dismissed
by
this
Court
on
29.10.1976. Petitioner also filed a civil
suit no. 345 of 1978 alongwith four other
persons, application for interim injunction
was rejected by the Trial Court, appeal
against which order was also dismissed.
The suit thereafter was dismissed in
default.
Petitioner
claims
to
have
submitted several representation to the
District
Inspector
of
Schools
for
regularization of his service and for
payment of his salary. The District
Inspector of Schools vide his letter dated
2.3.1988 wrote to the petitioner that suit
no. 347 of 1978 filed by the petitioner and
the appeal having been dismissed on
3.10.1978, there is no need to give any
decision by District Inspector of Schools.
After the order dated 2.3.1998, petitioner
filed writ petition no. 9876 of 1988 in
which affidavits were exchanged between
the
parties
and
writ
petition
was
ultimately
dismissed
on
16.11.1992.
Against the order dated 16.11.1992
present special appeal has been filed.
Learned Single Judge in his judgement
dated 16.11.1992 while dismissing the
writ petition of the petitioner gave
following reasons for dismissal of the writ
petition.
http://www.allahabadhighcourt.nic.in
2 All] Sita Ram V. D.I.O.S. and others
639
i)
The petitioner's earlier writ petition
no. 11192 of 1975 by which the
appointment of certain teachers was
challenged has already been dismissed by
this Court on 19.10.1976, in that writ
petition, the relief sought by the petitioner
was that they were validly appointed
teachers and are entitled in their salary.
Suit no. 345 of 1978 was also filed by the
petitioner
which
was
dismissed
subsequent
to
rejection
of
interim
injunction application, in view of the
earlier litigation, the writ petition filed by
the petitioner is not maintainable and is
liable to be dismissed on this ground
alone.

ii)
In
the
counter
filed
by
the
management, the appointment letter filed
by the petitioner is stated to be forged and
fabricated. It was stated in the counter
affidavit that one Sita Ram s/o Jokhu Ram
was appointed as untrained temporary
teacher who later proceeded on leave and
thereafter never returned. The petitioner
Sita Ram who is not son of Rambali was
never appointed. Management further
stated that it never allowed the petitioner
to work or recommended his case for
regularization. Petitioner except for a bare
denial did not bring any material to
substantiate
the
denial.
Allegations
involved highly disputed question of the
fact and cannot be resolved in proceeding
under Article 226.

4. Sri A.N. Tripathi, learned counsel
for
the
appellant
raised
following
submissions in support of this appeal:

(i) The earlier writ petition no. 11192 of
1975 filed by the petitioner was dismissed
on the ground of non joinder of necessary
party, hence the same will not preclude
the petitioner from filing the present writ
petition. Suit No. 345 of 1978 was
dismissed in default which also will does
not operate as res-judicata in the present
writ petition.

(ii) The District Inspector of Schools did
not decide the claim of the petitioner on
merit where as the decision on merits of
the case was to be given by District
Inspector of Schools also did not give any
opportunity to the petitioner before
passing the order dated 2.3.1988.

(iii) The petitioner has become entitled
for regularization in accordance with the
provision of Section 16-GG of U.P.
Intermediate Education Act 1921.

(iv) The learned Single Judge was
required
to
decide
the
claim
of
regularization of the petitioner and ought
to have remitted the mater for fresh
decision by the District Inspector of
Schools.

(v) Ram Sunder, Purnmansi and Dhupraj
who were similarly situated and were
juniors have been regularised under
section 16 GG where as petitioner has
been discriminated.

5. The learned Standing Counsel
refuted the submissions of counsel for the
appellant
and
has
submitted
that
petitioner's writ petition has rightly been
dismissed by Learned Single Judge. The
learned Single Judge referred to the
counter affidavit filed on behalf of
District Inspector of Schools in the writ
petition in which it was stated that alleged
appointment of the petitioner has never
been
approved
and
there
was
no
resolution
of
the
Committee
of
management to appoint the petitioner. The
learned standing counsel also submitted
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
640
that petitioner was never appointed in the
Institution as temporary teacher and it was
one Sita Ram s/o Jokhu who was
appointed on temporary basis as untrained
teacher, he took leave and thereafter never
returned. It was submitted that petitioner
has not come with clean hands and is not
entitled for any relief. On the basis of
dismissal of earlier writ petition of the
petitioner, it has been contended that
present writ petition is barred. The
learned
standing
counsel
further
submitted that in view of the dismissal of
the suit of the petitioner he cannot agitate
the matter again in this writ petition.

6. We have heard counsel for both
the parties and have perused the records.
The thrust of submission of the counsel
for the appellant in this appeal is that his
case has not been considered by the
District Inspector of Schools as well as
Learned Single Judge on merit and it was
rejected only on the ground of dismissal
of earlier writ petition and suit of the
petitioner. The counsel for the appellant
emphatically submitted that petitioner has
become entitled for regularization under
16 GG of U.P. Intermediate Education
Act.

7. In view of the above submission
made by counsel for appellant, before
adverting to the question as to whether by
dismissal of earlier writ petition as well as
the suit of the petitioner he is precluded
from agitating the matter, we thought it is
appropriate to consider the case of the
petitioner on merits also.

8. From the facts brought on record
of the special appeal, it is clear that
petitioner is basing his claim on the
appointment letter dated 25.6.1972 issued
by the Manager which has also been
appended as annexure -1 to the Stay
application. The said appointment was
upto 20.5.1973. The next document filed
by the petitioner is copy of his letter dated
26.6.1974 addressed to the Manager
praying for one year leave from 1.7.1974
to 30.6.1975, on the said letter there is
endorsement of the Manager. The next
document relied by the petitioner is his
letter dated 1.7.1975 addressed to the
Manager that he has passed L.T. Training
and he may be permitted to join. On the
said letter there is undated endorsement
of the Manager that permission is given
for joining. Neither there is any document
on the record, nor any pleading on part of
the petitioner that his appointment was
ever approved by District Inspector of
Schools.
As
submitted
by
learned
standing counsel, the District Inspector of
Schools in his counter affidavit has
specifically
stated
that
petitioner's
appointment was never approved by
District Inspector of Schools.

9. The appointment of the teacher in
recognized institution is governed by the
provision of U.P.Intermediate Education
Act
1921.
Section
16
F
of
the
U.P.Intermediate Education Act as it
existed prior to amendments made by
U.P. Act No. 26 of 1975 is quoted as
below :

"16-F (1) Subject to the provisions
hereinafter specified, no person shall be
appointed as a Principal, Headmaster of
teacher in a recognized institution unless
he
(a) possesses
the
prescribed
qualifications or has been exempted
under sub section (1) of section 16-E.
(b) has been recommended by selection
committee constituted under sub section
(2) or (3) , as the case may be , of the said
http://www.allahabadhighcourt.nic.in
2 All] Sita Ram V. D.I.O.S. and others
641
section and approved, in the case of
Principal or Headmaster by the Regional
Deputy Director, Education, and in the
case of a teacher by the Inspector.

Provided that if the Inspector is
satisfied that for any institution no
candidate,
who
possesses
all
the
prescribed qualifications is available for
appointment he may permit the institution
to employ as a temporary measure any
suitable person for a period not exceeding
one year. Such period may be extended
with the prior approval of the Inspector.

Provided also that in the case of
leave vacancy or of a vacancy occurring
for a part of the session of the institution
it shall be lawful for the Committee of
Management to appoint a Principal,
Headmaster or teacher if information of
such an appointment is immediately
conveyed to the Inspector.

10. From the aforesaid provision, it
is clear that no person can be appointed as
a teacher in a recognized institution unless
he has been recommended by selection
committee constituted under sub section
(2) or (3) and approved by the Inspector .
Proviso to 16 F (1) gives power to the
Inspector to permit the Institution to
employ a Teacher as a temporary measure
for a period not exceeding one year and
further in case of the leave vacancy
occurring
for
the
part
of
session,
management may make appointment with
intimation to the Inspector. Petitioner
does not claim appointment on leave
vacancy or any vacancy for a part of
session. Unless the appointment of a
teacher is approved, he does not acquire
the status of teacher nor entitle to salary
from the State fund.

11. Apex court in 1997(10) SC C
715 State of U.P. & others versus
Damyanti Singh and others held in
paragraph 4-

"4. We directed the respondents to
produce the record of the returns given by
the Management with regard to the
teachers working in the institution after
the up gradation w.e.f. 14.7.1977. The
records have been placed before us. The
records indicate that for the year 1977-78
and 1978-79, admittedly, the name of the
first respondent does not find place. With
regard to 1979-80, it is seen that she was
working against a leave vacancy. On
9.9.1982, the approval consisting of 9
names in respect of the teachers working
in the High School was given but it did
not mention the name of the first
respondent. This factual position was also
accepted by the District Judge but he held
that she cannot be penalized for the
mistake of the Management in not sending
the name of the first respondent. We fail
to appreciate the view taken by the
District Judge and approved by the High
Court as correct. The official reports
reflect the correct. State of affairs. Since
the approval of the authorities is required
under the U.P. Intermediate Education
Act, 1921, after up gradation of the
school with effect from 14.7.1977, it
would be axiomatic that appointment of
the staff working in the school would get
approved by the competent authority.
Otherwise, the same cannot be recognized
and treated as regular so as to be entitled
to receive aid from the Government."

12. It has also come on the record
that
there
was
dispute
regarding
Management and Principal in the year
1975 has made appointment of certain
teachers. The petitioner unsuccessfully
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
642
challenged the appointment made by the
Principal in the earlier writ petition.
Petitioner has neither pleaded nor brought
any material to show that his appointment
was ever approved by the District
Inspector of Schools.

13. The first submission which has
been raised by the counsel for the
appellant is that dismissal of earlier writ
petition no. 11192 of 1975 will not
preclude him in filing the present writ
petition. He further contended that suit no.
345 of 1978 in which petitioner was one
of the plaintiff was dismissed in default,
hence the present writ petition is not
barred. As observed above, instead of
resting our judgement on the reasons
given by learned Single Judge that present
writ petition is barred we have proceeded
to examine the claim of appellant on
merit. In view of the fact we have
considered the matter on merit, there is no
need to decide the question as to whether
dismissal of earlier writ petition and the
suit of petitioner will preclude him from
filing the writ petition. In view of we
having examined the matter on merit, this
issue is not decided in the present appeal.

14. The second submission of the
counsel for the appellant is that District
Inspector of Schools ought to have
decided the matter on merit after giving
opportunity. In view of the fact that we
ourselves have examined the claim of the
petitioner on merit, there is no need to
decide as to whether the District Inspector
of Schools was justified in not deciding
the claim of petitioner on merit merely on
the ground that suit filed by the petitioner
was dismissed.

15. The third submission of the
counsel for the appellant is based on his
claim of regularization under section 16
GG of U.P. Intermediate Education Act.
Petitioner claimed that since he was
appointed on 25.6.1972 and thereafter
again joined on 1.7.1975 and continued in
the institution, he became entitled for
regularization under section 16 GG.

16. We have already considered the
claim of the petitioner and have taken the
view that since petitioner's appointment
was never approved by District Inspector
of Schools he never acquired the status of
teacher,
when
the
petitioner
never
acquired the status of teacher in any
capacity , the question of regularisation of
his services does not arise.

17. After amendment made by U.P.
Act No. 26 of 1975 regarding procedure
of making appointment of teacher, there
was difficult being felt in appointment
teachers for time being, hence U.P.
Secondary
Education
(removal
of
difficulties) order 1975 was issued on
18.8.1975. The aforesaid difficulty order
provided
for
making
an
ad
hoc
appointment by selection committee.
Several other difficulties orders were
issued thereafter.

18. Section 16 GG provided for
regularization
of
Ad
hoc
teachers
appointed
between
18.8.1975
and
30.9.1976. Section 16 GG sub clause (1)
is quoted as below:

"16 GG- Regulation of appointment
of adhoc teachers - (1) Notwithstanding
anything contained in Sections 16 E, 16 F
and 16 FF, every teacher of an institution
appointed between August 18, 1975 and
September 30, 1976 (both dates inclusive)
on adhoc basis against a clear vacancy
and possessing prescribed qualifications
http://www.allahabadhighcourt.nic.in
2 All] Sita Ram V. D.I.O.S. and others
643
or having been exempted from such
qualifications in accordance with the
provisions of this Act, shall with effect
from the date of commencement of this
section,
be
deemed
to
have
been
appointed in a substantive capacity,
provided
such
teacher
has
been
continuously serving the institution from
the date of his appointment up to the
commencement of this section.

19. From his own case of the
petitioner, petitioner was appointed on
25.6.1972 and thereafter again claims to
have joined on 1.7.1975. Thus petitioners'
claim even according to his own case was
not of appointment between 18.8.1975
and 30.9.1976, hence section 16 GG is not
attracted. The claim of regularization as
contended by counsel for the appellant is
wholly misconceived. Petitioner having
never acquired status of teacher there is
no question of his being considered for
regularization.

20. The fourth submission of
counsel for the petitioner that Single
Judge ought to have decided the claim of
regularization and ought to have remitted
the matter to the District Inspector of
Schools is also to be considered. The
Learned Single Judge has considered the
submission which were raised before him.
From the perusal of judgment, it is clear
that no such claim was even raised that
petitioner is entitled to be regularised
under section 16 GG. Further , the learned
Single Judge and parties have filed their
affidavits, it was not necessary for
Learned Single Judge considered the
claim of the petitioner and considered the
affidavits filed in the writ petition. In
view of the fact that all relevant facts
were brought before learned Single Judge
to have again directed the District
Inspector of Schools to examine the
matter. This submission of counsel for the
appellant also does not help the appellant.

21. The last submission of the
counsel for the appellant is that certain
similarly
situated
teachers
were
regularised where as petitioner has been
discriminated. Petitioner has to succeed in
the writ petition on the strength of his
own
case.
The
details
regarding
appointment of other teachers have not
been brought in the appeal to even
consider the above plea of appellant.
Appellant's appointment letter alongwith
the appeal shows that his appointment
was by the Manager only on temporary
basis initially up to 20.5.1973. There is no
order of the District Inspector of Schools
permitting the petitioner to continue or
approving
his
appointment.
The
circumstances and facts under which
some other teachers were regularised are
not relevant nor can help the petitioner in
the present case. The petitioner who is
seeking relief from this Court has to bring
material to satisfy the Court that his
appointment was made in accordance
with the procedure prescribed in the U.P.
Intermediate Education Act. In view of
this petitioner is not entitled to get any
benefit from the above submission.

22. In view of foregoing discussion ,
none of the submission raised by counsel
for the appellant has any merit. We have
examined the claim of the petitioner on
merit. We have come to conclusion that
petitioner's
appointment
was
never
approved as required under provision of
U.P. Intermediate Education Act 1921.
Petitioner has failed to prove that he was
validly appointed. Learned Single Judge
did not commit any error in rejecting the
writ petition.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
644
23. We do not find any good ground
in this special appeal to interfere with the
order of Learned Single Judge or to grant
any relief to the petitioner. The special
appeal fails and is dismissed accordingly.
No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19. 08.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No.1005 of 1997

Anil Kumar Tiwari

...Appellant
Versus
Executive Engineer, Tube Well Division,
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Sri D.K. Mishra

Counsel for the Respondent:
Sri Ran Vijai Singh, S.C.

(A) Constitution of India, Article 226
Service
Law-
Cancellation
of
appointment order- appellant appointed
as Part time tube well operator pursuant
to demicile certificate of a particular
village subsequently it was found that
the certificate is not correct-show cause
notice issued- in reply the appellant
could not prove to be the resident of that
particular
village-
cancellation
of
appointment held-proper-writ court can
not act as Appellate court.

Held- Para 7

The petitioner was given opportunity to
show cause and the respondents after
the show case notice were satisfied that
petitioner is not resident of village Tarna
Tarni. In view of the above, it was open
to the respondents to arrive at a finding
with
regard
to
residence
of
the
petitioner.
The
scope
of
challenge
regarding residence of the petitioner is
very limited. This Court under Article 226
of the Constitution cannot re-asess the
evidence or to substitute its finding with
that of the finding of the authorities.

(B) Constitution of India, Article 226-
opportunity of hearing- appointment
letter issued on the basis of certificate
submitted by the employee regarding
permanent resident of village Tarn Tarni-
after considering the reply submitted
pursuant
to
show
cause
notice-
appointment cancelled whether before
passing the cancellation of appointment
opportunity of hearing is must ? Held-
'No'.

Held- Para 6

The disciplinary enquiry is required to be
held when a person is punished on
account
of
any
misconduct.
The
respondents having not awarded any
kind of punishment to the appellant and
only having cancelled the appointment of
the petitioner, there was no occasion for
holding disciplinary enquiry.
.
It is true that before passing the order of
cancellation of appointments in the
present case, the petitioner was entitled
for an opportunity. The show cause
notice dated 14the February, 1991 was
given to the petitioner to which reply has
also been filed by the petitioner. Hence
not holding of enquiry in the present
case does not vitiate the order cancelling
the appointment. The second submission
of counsel for the appellant thus cannot
be accepted.
Case law discussed:
2002 (2) ESC 247

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri D.K. Misra, counsel for
the appellant and Sri Ran Vijai Singh,
Standing counsel appearing for the
respondents.