# Smt. Indu Tripathi v. The Director of Education (Madhyamic), Allahabad and others

- **Citation:** (2002) 2 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-05-24
- **Case number:** Writ Petition No. 47893 of 2000
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-indu-tripathi-v-the-director-of-education-madhyamic-allahabad-and-others-39880
- **Pages:** 7

## Headnote

Constitution
of
India-Article
226-a
selected candidate cannot be permitted
to be deprived of his right on account of
the fact- that the employer sits over the
matter
and
permits
the
time
as
prescribed for exhausting panel to run
over. For the fault of the committee/
Board in taking erroneous decision, if a
post has been taken over by some body,
even then the right of a candidate so
validly found to be entitled for that post,
cannot be denied. (Held in para 14).

The
action
on
the
part
of
the
management for denying the petitioner's
right is neither fair nor justified nor
bonafide nor legally acceptable and
therefore, decision of respondent no.4
dated 10.9.2000 (annexure 6 to the writ
petition) as impugned in this petition
deserves to be quashed.
Case Law Preferred:
1999 SCC Vol.6
AIR 1996 SC 1145
1997 JT Vol.(3) page 736

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
380
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.5.2002

BEFORE
THE HON'BLE S.K. SINGH, J.

Writ Petition No. 47893 of 2000

Smt. Indu Tripathi

...Petitioner
Versus
The Director of Education (Madhyamic),
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Shri Radha Kant Ojha
Shri Dinesh Chandra Tripathi

Counsel for the Respondents:
Shri Manoj Kumar Pandey
Shri Ravi Kant
S.C.

Constitution
of
India-Article
226-a
selected candidate cannot be permitted
to be deprived of his right on account of
the fact- that the employer sits over the
matter
and
permits
the
time
as
prescribed for exhausting panel to run
over. For the fault of the committee/
Board in taking erroneous decision, if a
post has been taken over by some body,
even then the right of a candidate so
validly found to be entitled for that post,
cannot be denied. (Held in para 14).

The
action
on
the
part
of
the
management for denying the petitioner's
right is neither fair nor justified nor
bonafide nor legally acceptable and
therefore, decision of respondent no.4
dated 10.9.2000 (annexure 6 to the writ
petition) as impugned in this petition
deserves to be quashed.
Case Law Preferred:
1999 SCC Vol.6
AIR 1996 SC 1145
1997 JT Vol.(3) page 736

(Delivered by Hon'ble S.K. Singh, J.)

1. By means of this writ petition, the
petitioner has prayed for issuance of a
writ in the nature of certiorari quashing
the order dated 10.9.2000 (annexure 6 to
the writ petition) passed by respondent
no.4. A further prayer has been made for a
direction to the respondents to permit the
petitioner to work as Assistant Teachers
and to pay her salary.

2. There is an intermediate college
known as Rama Devi Balika Inter
College, Allahabad (hereinafter referred
to as the College). There happened three
vacancies of teachers in BTC grade in
respect to which the management held
selection
in
accordance
with
the
provisions of Education Act. For all these
posts, different sets of panel of two
candidates each were prepared. The
dispute survives only in respect to the
post which is being claimed by the
petitioner which is general category post
for which, admittedly, Smt. Neelam
Kapoor was placed at Sl. No. 1 and the
petitioner was placed at Sl. No.2. The
petitioner claims that Smt. Neelam
Kapoor was not eligible and qualified and
therefore, her name in the panel at Sl.
No.1 was clearly illegal and her selection
as such was void and the petitioner being
next, on top was entitled to be given
appointment.
It
appears
that
the
management recommended the name of
Km. Durga Singh who was at Sl.No.2 in
the panel prepared for backward class
candidates to be appointed in place of
Smt.
Neelam
Kapoor
which
was
challenged by the present writ petitioner
in writ petition no.18253 of 1998. This
Court on 22.5.1998 disposed of the writ
petition with the direction to the District
Inspector of Schools to decide the
2 All] Smt. Indu Tripathi Vs. The Director of Education (Madhyamic), Allahabad and others 381
 petitioner's representation by reasoned
order. It is in pursuance of the direction of
this Court, the District Inspector of
Schools decided the representation of the
petitioner by order dated 28/29.9.1998
and found that the petitioner being at Sl.
No.2 in the panel prepared for general
category candidates was entitled to be
appointed as Smt. Neelam Kapoor who
was at Sl. No.1 was not having proper
B.Ed. certificate, Km. Durga Singh
challenged the order of the District
Inspector of Schools dated 28/29.9.1998
by which the claim of the present
petitioner for the post in question, was
accepted by the District Inspector of
Schools by filing writ petition no.33321
of 1998, which was dismissed by this
Court on merits by its judgment dated
19.8.1999. The relevant extract from the
judgment of this Court for the purposes of
this case, is useful to be quoted as under:

"Once it was found that Smt. Neelam
did not possess proper B.Ed. certificate,
Smt. Indu Tripathi being at Sl. No.2 was
entitled under the law to be appointed. I
do not find any illegality in the impugned
order passed by the District Inspector of
Schools and the order dated 28/29.9.1998
is liable to be maintained."

3. As inspite of the orders of the
District
Inspector
of
Schools,
the
petitioner was not given appointment, the
representations
were
made
by
the
petitioner which were also not attended
then the petitioner filed writ petition
no.37607 of 2000 which came to be
disposed of by this Court by order dated
25.8.2000 by issuing direction to the
committee of management to decide the
petitioner's claim by a reasoned order. It
was also mentioned in the order that the
committee will decide the matter without
being influenced by any observation made
in the judgment. It is thereafter, the
respondent no.4 proceeded to consider the
petitioner's claim and has rejected the
same by its resolution dated 10.9.2000 as
communicated by letter dated 19.10.2000
(annexure 6 to the writ petition). It is
against this decision of the management,
the petitioner has filed this writ petition.

4. Learned counsel for the petitioner
has assailed the decision of respondent
no.4 on various grounds and it has been
submitted that firstly, the view taken by
the committee that the District Inspector
of Schools has passed orders in favour of
the petitioner on 28.9.1998 and by that
time, life of the panel being of one year
has already expired and therefore, the
petitioner's right came to an end is totally
incorrect. Learned counsel submits that in
the present case, there is no question of
panel having been exhausted as selection
of Smt. Neelam Kapoor who was at
sl.No.1 was void. It was found that she
was lacking in the requisite qualification
and thus the petitioner being at Sl.No.2
was entitled to be appointed. It is on
account of the litigation and inaction on
part of the management, delay in
acceptance of the petitioner's claim has
taken place for which, the petitioner
cannot be permitted to be pensalised. In
support of this submission, learned
counsel for the petitioner has placed
reliance on a decision reported in 1999
SCC Vol.6 page 49 Purshottam Vs.
Chairman, MSEB and another for the
proposition that duly selected candidate
cannot be deprived of her appointment on
the pretext that some one has been
appointed.

5. It was then contended that the
ground as has been mentioned by the
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
382
management
for
not
accepting
the
petitioner's claim that B.Ed. certificate
cannot be validly accepted, as it has been
obtained through correspondence course
in the year 1995-96 from Mahatma
Gandhi Gramodyog College, Chitrakoot,
Satna which is not recognized under the
National Council for Teachers Education
Act 1993, also according to learned
counsel, is not acceptable. It has been
pointed out that the petitioner has got the
B.Ed. degree in the year 1995-96 from the
aforesaid
vishvidayala
which
was
established by the State of M.P. under Act
no. 1/91 which is recognized by all states
as per Appendix-A-Chapter-II of U.P.
Intermediate Education Act. It has been
further argued that the recognition from
National
Council
for
the
Teachers
Education was not required for the year
1995-96 as the National Council for
Teachers Education was established on
17.8.1995 and the regional committee was
constituted on 6.1.1996 and the rules were
framed on 24.2.1996 and thus it is for this
reason, the Western Regional Committee
of
National
Council
for
Teachers
Education has itself directed by letter of
7.10.1999 (Annexure 1 to the rejoinder
affidavit) that from Session 1996-97 m
recognition from National Council for
Teachers Education is required. Thus the
ground as given by the management that
the degree of B.Ed. of the petitioner has
no recognition by the National Council
for the Teachers Education, is absolutely
illegal and accordingly, the petitioner is
entitled to get herself appointed on the
post. Lastly, it has been submitted that the
committee
of
management
has
not
challenged the order of the District
Inspector of Schools dated 28.9.1998 by
which it was held that the petitioner is
entitled to be appointed on the post in
question
and
the
management
was
directed to issue appointment letter and
therefore, now it is not open for the
management to challenge the impugned
decision and that too after dismissal of the
writ petition filed by Km. Durga Singh
i.e. writ petition no.33321 of 1998, which
in fact was got filed by the management
itself.

6. In view of the aforesaid premises,
it has been submitted that the decision of
the management not permitting the
petitioner to join the post for which she
was selected is clearly unjust.

7. In response to the aforesaid
submissions,
learned
counsel,
who
appears for respondent no. 4 submits that
the District Inspector of Schools had no
authority to take up the name of the
petitioner from the select list and approve
the same for appointment as the same is
clearly against the provisions of Section
16-F of the Act. It has been further
submitted that the petitioner is not
possessed with the minimum qualification
and therefore, the direction of the District
Inspector of Schools was clearly illegal
and was not to be implemented by the
management. It has also been pointed out
that writ petition no. 37607 of 2000 filed
by the petitioner for the same relief, was
dismissed by this Court and therefore, the
order of the District Inspector of Schools
looses its significance. Lastly, it has been
pointed out that even assuming that the
petitioner was eligible for appointment,
mere placement of a candidate in the
select list does not confer any right on
him/her to get appointment and as the
panel of the candidates having life of one
year, by time, the order of the District
Inspector of Schools was passed, it has
expired and thus panel was exhausted and
2 All] Smt. Indu Tripathi Vs. The Director of Education (Madhyamic), Allahabad and others 383
therefore, on all these grounds, the claim
of the petitioner has been resisted.

8. In view of the aforesaid
submission, as has come from both sides,
pleadings as has been set forth and the
materials brought on record, have been
examined.

9. There appears to be no dispute
about the fact that the petitioner was duly
selected by the management against
vacancy of general category and she was
placed at Sl.No.2 in the select list. Smt.
Neelam Kapoor was placed at Sl.No.1 i.e.
above
the
petitioner.
The
selection
appears to have taken place on 10.8.1997.
The Selection/placement of Smt. Neelam
Kapoor at Sl. No.1 was challenged by the
petitioner before this Court and after a
direction in writ petition no. 18253 of
1998, the District Inspector of Schools,
after giving opportunity to the petitioner,
Smt. Neelam Kapoor and the management
by its order dated 28.9.1998 held that
Smt. Neelam Kapoor is not possessed
with the requisite qualification and
therefore, the petitioner being at Sl. No.2
was held to be entitled for the post. It
cannot be disputed that the order of the
District Inspector of Schools dated
28.9.1998 was passed after full hearing to
the management and a copy of the same
was also sent to the management. The
order of the District Inspector of Schools
dated 28.9.1998 was challenged by one
Km. Durga Singh who had obviously no
claim for the post as her name was at Sl.
No.2 in the list of panel of OBC
candidates and therefore, obviously she
has no locus standi to lay any claim for
the post in question for which it has been
suggested in para 12 of the writ petition
that it is the management who inspired
aforesaid Km. Durga Singh to file writ
petition. It in this back ground now the
claim of the petitioner has to be
examined. The order of the management
by which the petitioner's claim has been
rejected states two grounds namely (i) that
the life of the panel being one year on the
date on which the District Inspector of
Schools has passed order i.e. 28.9.1998, it
has come to an end (ii) the petitioner is
not having valid B.Ed. degree as it is
through
correspondence
course
and
Vishwavidyalaya from where the degree
has been obtained, on account of coming
into existence the National Council for
Teachers
Education
Act,
1993,
recognition automatically came to an end.
In so far the ground as has been taken by
the management and the submission as
has been made on behalf of the
respondents about life of the panel having
came to end after expiry of one year is
concerned, in the given set of facts, the
selectee at Sl. No.1 has been found to be
not
possessed
with
the
requisite
qualification. As the candidate at Sl. No. 1
lacked in requisite qualification that
cannot be said to be a valid selection in
the eye of law and therefore, the petitioner
has to get the birth which may be at Sl.
No.2. It is not a case where the valid
selectee has joined the post and for some
reason, he/she has left the same or for any
latches on the part of the petitioner, he has
not reported within one year, making him
disentitled under law for the post in
question. Here is the case where from
very beginning the petitioner took up a
fight to challenge selection of Smt.
Neelam Kapoor, selectee at Sl. No. 1 and
it is a matter of common knowledge, the
litigation takes quite reasonable time and
therefore, in the event, final decision of
the District Inspector of Schools came in
favour of the petitioner on 28.9.1998, no
blame can be attributed to the petitioner
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
384
for expiry of period of one year. Here it is
the management which is guilty of
selecting a candidate who was not
qualified and therefore, in the event, Smt.
Neelam Kapoor would not have been
selected/placed at Sl. No.1, obviously the
petitioner would have placed at Sl. No.1
in this view of the matter, I feel that the
respondents cannot be permitted to take
expiry of one year to nullify the legitimate
due of the petitioner. In such a situation if
one sticks to the period of one year, in
respect to the life of the panel then it will
be very easy for any body, not interested
in permitting valid claimant, to take over,
to file writ petition or take some objection
before the educational authorities and get
the matter some how or the other lingered
on; for a period of one year in passing of
final order in favour of the selectee and
even thereafter, his/her ouster on account
of expiry of one year. It cannot be said to
be the intention of the life of the panel. In
view of this, objection of the respondents.
In this respect has to rejected.

10. In connection with submission
of learned counsel for the respondents that
mere placement of the candidate in the
select list does not confer any right to get
the appointment also cannot be accepted
in the facts of the present case as it is not
a case where the vacancy is not to be
filled up or there may be any situation that
for any reason entire selection process has
been
set
aside
and
therefore,
the
contention in this respect also has to be
rejected. The decision as has been
referred by learned counsel for the
respondents reported in AIR 1996 SC
1145
State
of
Bihar
Vs.
Md.
Kalimuddin and others and 1997 JT
Vol.3 page 736 Basudev Pati Vs. State
of Orissa has no application to the facts
of the present case.

11. In respect to the submission of
the respondents that the petitioner was not
possessed with minimum qualification as
she has no proper degree of B.Ed. on
account of fact that on coming into force
the
National
Council
of
Teachers
Education Act, 1993, Vishvidydalaya
from where petitioner has obtained degree
has no recognition, suffice to say that on
record, there is a letter of Western
Regional Committee which clearly states
that the recognition will be required from
the Session 1996-97 and thus in view of
the fact that the Vishvidyalaya was duly
established by the State of M.P. under
M.P. Act No. 9 of 1991 the degree from
which may to be recognized by all the
States as per the Appendix-A, Chapter-II
of the Intermediate Education, the B.Ed.
degree of the petitioner being of the year
1995-96, cannot be said to be improper.
Learned counsel for the respondent in this
connection has taken the Court to various
provisions as contained in National
Council of Teachers Education Act, 1993
but in view of the letter of the Western
Regional Committee of the NCTR itself
(annexure 1 to the rejoinder affidavit) it is
not required to examine those aspects in
detail. Otherwise also, it is not a case of
any concealment or playing fraud on the
part of the petitioner and on the basis of
the materials so supplied, the management
has duly selected the petitioner and place
her in the panel.

12. Admittedly, the petitioner has
been selected by the management and she
was placed at Sl. No.2 in the panel. In the
event, Smt. Neelam Kapoor would not
have been placed at Sl. No. 1, in normal
course, at that very stage, the petitioner
could have been appointed. It is only on
account of dispute having arisen in
respect to selection of Smt. Neelam
2 All] Smt. Indu Tripathi Vs. The Director of Education (Madhyamic), Allahabad and others 385
Kapoor, all the differences appear to have
crept between the management and the
petitioner.
Ultimately,
the
petitioner
succeeded in getting order in her favour.
The management who is an active
participant in the decision of the District
Inspector of Schools dated 28.9.1998, has
not chosen to file any writ petition before
this Court or to challenge the same taking
any other recourse, can be safely said to
have submitted to the order of District
Inspector of Schools. As argued by
learned counsel for the respondents that
the order of the District Inspector of
Schools is void and non-est and therefore
it required no challenge and thus it is open
for the management not to comply the
same and resist the claim of the
beneficiary as and when it is taken for
implementing the said order, cannot be
accepted. The decision of the District
Inspector of Schools has come in
pursuance of the direction of this Court
given in writ petition no.37607 of 2000.
The decision of the District Inspector of
Schools after rejection of the candidature
of Smt. Neelam Kapoor, in respect to the
present petitioner, is just a necessary
consequence which ought to have been
there at the first instance when the
selection took place, in the event the
candidature of Smt. Neelam Kapoor is
ignored from scene. To my mind non
challenge of the order of the District
Inspector of Schools dated 28.9.1998 by
the management, operates as estoppel in
respect
to
non
acceptance
of
the
petitioner's claim and the effect of the
order of the District Inspector of Schools
cannot be permitted to be nullified by
taking a pretext by the management that it
is void and non-est. The order of the
District Inspector of Schools on the facts,
even assuming for the sake of arguments,
submissions of the respondents, cannot be
said to be non-est and at the most, it can
be termed as erroneous and in view of the
law
settled
by
Apex
Court,
even
erroneous judgment/order between the
parties, has binding effect. Thus the claim
of the petitioner is to be accepted on this
ground alone. Although after the aforesaid
finding; it is not very much necessary to
examine other aspects but as various
aspects have been placed before this
Court, it appears to be just and proper that
the some finding, in the light of the
submission may also come.

13. In view of the aforesaid
discussions, it appears that the panel
neither exhausted on account of joining of
the selected candidate nor it is a case of
there being any lapse on the part of the
petitioner and on the other hand the
selection of the candidate who was placed
at Sl. No. 1 was not valid selection in the
eye of law and therefore, the petitioner
being next in order of merit, is certainly
entitled to the discretion of the Court. It is
also not the case where authority has
decided not to fill up the post or for any
other reason, the entire selection process
has been decided to be invalidated and
therefore, the submission that mere
empanelment of a candidate does not
confer any right to get appointment, also
is not acceptable. On the other hand, the
Apex Court has clearly laid down that a
selected candidate cannot be permitted to
be deprived of his right on account of the
fact that the employer sits over the matter
and permits the time as prescribed for
exhausting panel to run over. It has also
been held by the Apex Court that if for
the fault of the committee/Board in taking
erroneous decision, if a post has been
taken over by some body, even then, the
right of a candidate so validly found to be
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
386
entitled for that post, also cannot be
denied.

14. In view of the aforesaid
discussions, it appears that the action on
the part of the management for denying
the petitioner's right is neither fair nor
justified
nor
bonafide
nor
legally
acceptable and therefore, decision of
respondent
no.4
dated
10.9.2000
(annexure 6 to the writ petition) as
impugned in this petition deserves to be
quashed.

15. Accordingly, this petition
succeeds and is allowed. The impugned
order dated 10.9.2000 (annexure 6 to the
writ petition) is hereby quashed. The
respondent no. 4 is commanded to
implement the order of the District
Inspector of Schools dated 28.9.1998 and
permit the petitioner to join the post for
which she was selected.

Parties to bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.7.2002

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE IMTIYAZ MURTAZA, J.

Misc. Writ Petition No. 5014 of 2001

Vidya Prakashan Mandir Limited and
another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Pushkar Mehrotra
Sri R.K. Jain

Counsel for the Respondents:
Sri Arvind Tewari
A.G.A.

Copy right Act- section 62- petitioners
have not violated any of provisions of
copyright Act as the books published by
the petitioners are for the students of
class IX and X and these books were
published only according to the syllabus
prescribed by the Board and there is no
violation of any of the provisions of
copy-right Act-thus the impugned First
Information Report does not disclose
commission of any cognizable offence
against the petitioners and is liable to be
quashed. (Held in para 15).

The impugned F.I.R. registered as Case
Crime
No.
317/2001
police
Station
Transport Nagar, Meerut and further
proceedings
on
the
basis
of
the
impugned
first
information
report
against
the
petitioners
are
hereby
quashed. The Books seized by the
opposite parties shall be returned to the
petitioners forthwith.
Case Law referred
(1) AIR 1982 Calcutta 245

(Delivered by Hon'ble Imtiyaz Murtaza, J.)

1. The present writ petition is
directed for quashing the F.I.R. registered
as case crime No.317/2001 Police station
Transport Nagar, Meerut against the
petitioners
by
District
Inspector
of
Schools, Meerut, respondent No. 2 under
sections 3,4, 7 and 8 of the Uttar Pradesh
Course Books Act 1978 and section 63 of
Copyright Act 1957.

2. According to the allegations of
the
First
Information
report
the
complainant had received information
from the District Magistrate, Meerut that
he had received complaint that M/s Vidya
Prakashan
Kendra
Ltd.
Meerut
is
publishing, books for which they have no
permission
from
the
Department.
Additional City Magistrate, Meerut had