# Smt. Sangeeta Singh & Anr v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-20
- **Case number:** Writ-A No. 2184 of 2016
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sangeeta-singh-anr-v-state-of-u-p-ors-43457
- **Pages:** 4

## Headnote

U.P. Intermediate Education Act-1921Section 16 (I), 16 E (ii)-appointment of
Assistant
Teacher-against
substantive
vacancy-on retirement of regular teachersappointment
by
management
not
to
continue more than 6 months or end of
academic
session-any
appointment-in
contravention of Section 16 (i)-held-voidas per law laid down by Division BenchAbhishek
Tripathi
case-direction
for
financial approval can not be givenpetition dismissed.
Held: Para-7
Though under Section 16-E of the
Intermediate Education Act, 1921, the
Committee of Management has the
power to make an appointment but in
exercise
of
the
said
power,
an
appointment can only be made against a
temporary vacancy caused by the grant
of leave to an incumbent for a period not
exceeding six months, or in the case of
46
 INDIAN LAW REPORTS ALLAHABAD SERIES
death, termination or otherwise, of an
incumbent
occurring
during
an
educational session. An appointment
made under sub-section (11) of Section
16-E, as provided in the proviso, in any
case, shall not continue beyond the end
of the educational session during which
the appointment was made.
Case Law discussed:
2013 (1) UPLBEC 759; Writ -A No. 22520 of
2013; W.P. No. 655 (SS) of 2014.

## Text

1 All. Vidya Dhar Pandey Vs. Lucknow University, Lucknow & Ors.
45
4. Inspite of the order dated
20.04.2015 no counter affidavit has been
filed by the University, therefore, the facts
stated in the writ petition
remain
unrebutted.
5. The contention of the petitioner is
that merely on the direction of the Vice
Chancellor
the
impugned
order
of
forfeiture of salary for the period of
suspension has been passed without
issuing any show cause notice.
6. A perusal of the impugned order
reveals that a charge sheet was issued to
the petitioner and he was placed under
suspension on 08.11.2013. According to
the petitioner he had filed reply to the
charge sheet. The impugned order shows
that the final decision was taken by the
Vice Chancellor in the matter awarding an
adverse entry for the alleged misconduct
with a direction to the concerned authority
to forfeit the salary of the petitioner for
the suspension period.
7. The legal position is very well
settled by the decision of the Supreme
Court reported in (1987) 4 SCC 328 (O.P.
Gupta vs. Union of India & others) that
forfeiture of remaining salary for the
period of suspension requires issuance of
separate
show
cause
notice
under
intimation as the matter of forfeiture of
salary has financial implications. The
petitioner needs to be confronted as to
why the financial burden be not imposed
upon him.
8. As no show cause notice was
issued to the petitioner therefore, the
impugned order to this extent is set aside
and liberty is given to the concerned
authority to proceed afresh if forfeiture of
remaining salary of the suspension of
petitioner is proposed by issuing a show
cause notice and thereafter take an
appropriate decision in accordance with
law.
9. The writ petition is disposed of in
the aforesaid terms
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2016
BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.
Writ-A No. 2184 of 2016
Smt. Sangeeta Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Rajesh Kumar Singh Kaushi
Counsel for the Respondents:
C.S.C.
U.P. Intermediate Education Act-1921Section 16 (I), 16 E (ii)-appointment of
Assistant
Teacher-against
substantive
vacancy-on retirement of regular teachersappointment
by
management
not
to
continue more than 6 months or end of
academic
session-any
appointment-in
contravention of Section 16 (i)-held-voidas per law laid down by Division BenchAbhishek
Tripathi
case-direction
for
financial approval can not be givenpetition dismissed.
Held: Para-7
Though under Section 16-E of the
Intermediate Education Act, 1921, the
Committee of Management has the
power to make an appointment but in
exercise
of
the
said
power,
an
appointment can only be made against a
temporary vacancy caused by the grant
of leave to an incumbent for a period not
exceeding six months, or in the case of
46
 INDIAN LAW REPORTS ALLAHABAD SERIES
death, termination or otherwise, of an
incumbent
occurring
during
an
educational session. An appointment
made under sub-section (11) of Section
16-E, as provided in the proviso, in any
case, shall not continue beyond the end
of the educational session during which
the appointment was made.
Case Law discussed:
2013 (1) UPLBEC 759; Writ -A No. 22520 of
2013; W.P. No. 655 (SS) of 2014.
(Delivered by Hon'ble Rakesh Srivastava, J.)
1. This writ petition has been filed
praying inter alia for the following reliefs:
-
i) issue a writ, order or direction in
the nature of mandamus commanding and
directing the respondent no.2 to grant
financial approval to the appointment of
the petitioners on the post of assistant
teacher in the institution.
ii) issue a writ, order or direction in
the nature of mandamus directing the
respondent no.2 to pass appropriate order
and release the salary of the petitioner as
and when due as per the law month to
month.
2.

Rashtriya
Inter
College,
Mehrenw, Purenw, Jaunpur (for brevity
'the College') is a recognized and aided
college and is governed by the provisions
of Intermediate Educaiton Act, 1921 and
the Regulations framed thereunder. In the
College two posts of Assistant Teachers
fell vacant due to retirement of Sri Kalka
Prasad Singh and Sri Bhola Nath Singh,
who retired on 30.6.2002 and 30.6.2007
respectively. A requisiton for selection is
alleged to have been sent to the
Secondary Education Services Selection
Board on 26.5.2014. On 5.9.2015, the
Committee of Management of the College
issued
an
advertisement
in
daily
newspapers
'Tarun
Mitra,
Aaj'
and
'Swatantra Bharat' inviting applications
for appointment on two posts of Assistant
Teachers in the College.
3. According to the petitioners, they
applied for appointment on the said posts
along with other candidates and after
interview they were selected and in
pursuance of the recommendation of the
Selection Committee, the Committee of
Management of the College approved the
appointment of the petitioners on the
posts
in
question.
Thereafter,
on
29.10.2015, the papers pertaining to
selection
of
the
petitioners
were
forwarded to the DIOS (for short 'DIOS').
As nothing was heard off from the DIOS
in this regard, the petitioners have
preferred this writ petition.
4. Shri Rajesh Kumar Singh Kaushi,
the learned counsel for the petitioners has
submitted that the selection of the
petitioners was only till regularly selected
candidates joined the posts. The counsel
relying upon the decision of this Court in
Sanjay Singh & Ors. v. State of U.P. &
Ors., 2013 (1) UPLBEC 759 has
submitted that in the circumstances, the
respondent no.3 was obliged to accord
approval to the appointment of the
petitioners.
5. Appointment of teacher in a
recognized
Intermediate
College
is
governed by the provisions of the U.P.
Secondary Education (Service Selection
Board) Act, 1982 (for short '1982 Act).
As per Section 16 of 1982 Act, the
appointment
of
a
teacher
in
the
Intermediate College is to be made only
on the recommendation of the Board
constituted under the Act and as per sub-
1 All. Smt. Sangeeta Singh & Anr. Vs. State of U.P. & Ors.
47
section (2) of section 16 of 1982 Act any
appointment made in contravention of the
provisions of sub-section (1) of Section
16 is void.
6. Admittedly, the posts of Assistant
Teachers in the College fell vacant on
substantive basis and in view of the
provisions of Section 16 of 1982 Act the
appointment on the said posts could only
be made on the recommendation of the
Board. There is no provision in the 1982
Act, which may empower the Committee
of Management to make an ad hoc or
temporary
appointment
against
a
substantive vacancy, and as such the
petitioners could not have been selected
for appointment by the Committee of
Management of the College.
7. Though under Section 16-E of the
Intermediate Education Act, 1921, the
Committee of Management has the power
to make an appointment but in exercise of
the said power, an appointment can only
be made against a temporary vacancy
caused by the grant of leave to an
incumbent for a period not exceeding six
months, or in the case of death,
termination or otherwise, of an incumbent
occurring during an educational session.
An appointment made under sub-section
(11) of Section 16-E, as provided in the
proviso, in any case, shall not continue
beyond the end of the educational session
during which the appointment was made.
8. In Writ A No.22520 of 2013, Pradeep
Kumar Vs. State of U.P. & 3 Ors., a Learned
Single Judge of this Court after considering the
case of Sanjay Singh (supra) held that an
appointment made by the Committee of
Management against a substantive vacancy is a
nullity. Relevant portion of the said judgment is
extracted below:-
"In these circumstances, merely
because the management has made
appointment of a person, who is qualified
in terms of the Appendix-A, it will not
mean that the said appointment is in
accordance with law. In view of Section
16 of Act, 1982, it would be a nullity. No
appointment against substantive vacancy
can
be
made
except
on
the
recommendation of the Selection Board in
view of the law as it stands today.
Reference Smt. Prameela Mishra Vs.
State of U.P. & othes; 1997 (2) UPLBEC
1329 and Surendera Kumar Srivastava vs.
State of U.P. & others; 2007 (1) ESC
118."
9. The conflict in the opinion in the
case of Sanjay Singh (Supra) and
Pradeep Kumar (Supra) was resolved by
a Division Bench of this Court in Writ
Petition No.655 (SS) of 2014, Abhishek
Tripathi vs. State of U.P. & Ors. wherein
the case of Sanjay Singh was overruled.
Para 42 of the judgment is quoted
below:-
"42. For these reasons, we have
come to the conclusion that the view of
the learned Single Judge in Sanjay
Singh's case (supra) cannot be upheld
as laying down the correct postion in
law. The view of the learned Single
Judge
shall
stand,
accordingly,
overrulled. The judgment in Pradeep
Kumar (supra) is upheld subject to the
principles which, we have enunciated
in this judgment."
10. In view of the above, the reliefs
prayed for cannot be granted.
11. The writ petition is devoid of
merit and is accordingly dismissed.
-------
48
 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.12.2015
BEFORE
THE HON'BLE RAJAN ROY, J.
Service Single No. 7176 of 2015
Smt. Vandana Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Khaleeq Ahmad Khan
Counsel for the Respondents:
C.S.C., Anil Kumar Singh Vishen
U.P.
Recruitment
of
Dependents
of
Government Servant Dying in Harness
Rule
1974-Rule
5(3),
(4),
Rule-7compassionate appointment-if there are
more than one claimant-authorities to
consider and take appropriate decision
keeping in view of provisions of Rule
5(3) and 5(4)-petition disposed of.
Held: Para-8
In view of rule 7 of the Rules, 1974 as
there are rival claimants the competent
authority shall take a decision in the
light of the aforesaid Rules, 1974 within
a period of two months from the date a
certified copy of the order is submitted
before him, based on the application
already
submitted
which
has
been
decided by the impugned order and for
this purpose the said application shall
stand
restored.
The
question
of
payment of death-cum-retiral dues shall
be dealt with in accordance with the
Rules within a period of next three
months. Let a fresh decision be taken
uninfluenced by the directions or order
passed
by
this
Court
referred
to
hereinabove subject of course to their
entitlement
under
the
aforesaid
provisions.
(Delivered by Hon'ble Rajan Roy, J.)
1. Heard learned counsel for the
parties.
2. The petitioner herein is the wife of
deceased Vivek Kumar Mishra who is said
to have died in harness barely two and half
months of the marriage with petitioner. The
opposite parties 4 to 7 are the father, mother
and sister of deceased. The opposite parties
4 to 7 had earlier filed a Writ Petition No.
3476 (SS) of 2015 which was decided on
18.06.2015 with a direction to consider the
case of petitioner no.4 therein under rule
2(c)(iv) of the U.P. Recruitment of
dependents of Government Servants Dyingin-Harness Rules, 1974 (hereinafter referred
to as 'the Rules, 1974') with a further
direction to clear the dues in favour of
petitioners 1 to 3.
3.
Apparently the said direction
appears to have been issued under some
misconception as if, the deceased was
unmarried whereas on perusal of the
record of the said writ petition it is
revealed that in paragraphs 8 and 9 of the
writ petition it was specifically stated that
the deceased had been married with the
petitioner herein namely; Smt. Vandana
Mishra on 18.06.2016 and within two and
half months of the marriage, the the death
of her husband happened. Therefore, no
benefit can be derived by the opposite
parties 4 to 7 in pursuance to the
directions contained therein, in view of
admitted factual error mentioned therein
unless the claim of all the claimant is
considered
in
accordance
with
the
relevant Rules.
4. The petitioner herein on her part
filed another Writ Petition No. 4568 (SS)
of 2015 which was decided vide order
dated 07.08.2015 with a direction to the
concerned
opposite
party
to
take