# Smt. Shashi Saxena v. Dy. Director of Education, Agra and others

- **Citation:** (2000) 3 ILRA 243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shashi-saxena-v-dy-director-of-education-agra-and-others-39481
- **Pages:** 9

## Text

243 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
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By the Court

1. Above mentioned five Special
Appeals arise from Writ Petitions under
Article 226, Constitution of India, which
were filed in this Court due to dispute
between Smt. Shashi Saxena (present
appellant) and one Smt. Kusum Singh
both Assistant Teachers in Shree Teeka
Ram Girls Inter College, (Called the
College) a 'recognised' girls intermediate
college
receiving
'grant-in
aid'
as
contemplated under U.P. Intermediate
Education Act, 1921 (as amended up-to
date). Admittedly, The U.P. High School
and Intermediate College (Payment of
Salaries
of
Teachers
and
Other
Employees) Act, 1971,U.P.Act No. 24 of
1971
and
U.P.
Secondary
Service
Commission Act, 1982 U.P. Act No.5 of
1982 (as amended up to date) are
applicable to the College

Dates in chronological order are
given
hereunder
to
appreciate
the
controversy between the parties:-

24.09.85
One Shashi Kant Sharma -
Assistant Teacher - C.T. Grade-Promoted
adhoc-as Assistant Teacher -(L.T. Grade)
regularized w.e.f. 07.08.1995 vide order
dated 29.01.96. Writ Annexure9P 49.
Cancelled on 12.02.96 Writ Annexure
10P.52.

03-10-85
Kusum
Singh
(R-6)
appointed directly on adhoc basis- against
short-term vacancy on the aforesaid post
of Assistant Teacher -C.T. Grade (Caused
3All] Smt. Shashi Saxena V. Dy. Director of Education, Agra and others 244
by adhoc promotion of Shashi Kant
Sharma from C.T. to L.T. Grade
District Inspector of Schools accorded
approval and Kusum Singh paid salary as
Assistant Teacher (C.T. Grade).

30-06-87
Term of Kusum Singh, as
adhoc, extended up to 30.06.87 or till a
regularly selected candidate by U.P.
Secondary
Education
Service
Commission was available.

24-03-90
Resolution of Committee
of Management-One Rama Dixit (L.T.
Grade Assistant Teacher)promoted adhoc
-as Lecturer (Hindi) Short-term vacancy
on L.T. Post held by Rama Dixit.

07-12-91
Resolution of Committee
of Management Committee proposing to
make
direct
selection
instead
of
promoting Kusum Singh.

22-05-93
Proposal
rejected
by
Regional Insapectress of Girls Schools.

02-07-93
(Impugned)
Application/letter in favour of Shashi
Saxena by Committee of Management
making
short
term
direct
ad
hoc
appointment. Writ Annexure-2/P18.

16-07-93
Committee
of
Management's resolution.

22-07-93
Papers sent to Regional
Inspectress
of
Girls
Schools.
Writ
Annexure-3/P.20

07-08-93
Shashi
Kant
Sharma
regularized retrospectively vide order
dated 23.01.1996
28-08-93
(Impugned) Regional Inspectress of Girls
Schools
approval
to
Committee
of
Management resolution dated 16.07.93.
Annexure-3/20.

01-10-93
Application
by
Kusum
Singh -seeking promotion against .T. post
of Smt. Rama Dixit.

16-10-93
(Impugned)
Regional
Inspectress of Girls Schools orders)
giving approval to Shashi Saxena and
asking Manager to explain 8 excess posts
of
Assistant
Teacher
-L.T.
Grade
Annexure-13.
writ petition No. 3054 of 94 (Kusum
Singh v Regional Inspectress of Girls
Schools) challenging Annexures 2 and 3,
claimed promotion on LT post held by
Shashi
Saxena
(falling
vacancy
on
promotion of Smt. Rama Dixit with effect
from July 1993.

21-01-94
Interim order to pay Salary
to Shashi Saxena, after D.D.E. satisfied
regarding validity of appointment of
Shashi Saxena.

14-09-94
(Impugned)
Order
of
Deputy Director of Education to pay
salary to Shashi Saxena (26-9-94- stayed
by High Court till validity of appointment
of Shashi Saxena decided) Writ Annexure
14.
10-01-95
(Impugned)
Order
of
Deputy Director of Education to pay
salary to Shashi Saxena Writ Annexure
15.

29-01-95
Order of Deputy Director
of Education in favour of Kusum Singh

22-11-95
Order of District Inspector
of Schools, Annexure C.A.-1

29-01-96
Kusum Singh regularized
with retrospective effect from 06.04.1991
245 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
as Assistant Teacher C.T. Grade vide
order dated 25/29-1-96 Annexure 9/P49

12-02-96
Order
of
regularisation
dated
29.01.1996
cancelled
Writ
Annexure 10/PP52.
The Five Special Appeals, arising
from a common judgment and order dated
29th may 1998 passed by a learned single
judge of this Court are dealt hereunder:-

I- SPECIAL APPEAL No. 475 of 1998
(Leading Case - arising from Writ
Petition No. 3054 of 1994 - Kusum
Singh versus Regional Inspectress of
Girls School, Agra & others).

2. Relevant facts and figures, which
are necessary for the purpose of deciding
controversy between the parties, are not in
dispute and the same are given below for
ready reference;

3. One Shashi Kant Sharma,
Assistant Teacher in C.T. Grade, working
in college was promoted on ad hoc basis
as Assistant Teacher in L.T. Grade with
effect from 24th September 1985 and
consequently
causing
'short-term'
vacancy on the post of Assistant TeacherC.T. Grade (held by the said Shashi Kant
Sharma) with effect from 24th September
1985.

4. Smt. Kusum Singh was given adhoc appointment on direct basis against
aforementioned 'short-term' vacancy on
03rd October 1985, which was approved
by
the
District
Inspector
of
Schools/Regional Inspectress of Girls
Schools and consequently she was paid
salary also. Since appointment of Smt.
Kusum Singh was against short-term
vacancy, on becoming substantive, was to
continue till a regular appointment was
being made as is evident from the perusal
of the Manager's letter dated 30th June
1987
(Annexure-1
to
the Rejoinder
Affidavit in Writ Petition No. 3054 of
1994).

5. Smt. Kusum Singh, admittedly,
since 1987 held a post of Assistant
Teacher C.T. Grade, purely on ad-hoc
basis against short-term vacancy and
continued as such when one Smt. Rama
Dixit, Assistant Teacher L.T. Grade, was
given ad-hoc promotion against shortterm vacancy on the post of Lecturer
(Hindi) in pursuance to the management's
resolution dated 24th March 1990.

6. Since Smt. Rama Dixit was given
ad-hoc
promotion
against
short-term
vacancy on the post of Lecturer, a
contingency arose to fill up the post of
Assistant teacher, L.T. Grade (so for held
by said Smt. Rama Dixit )by making adhoc short-term appointment.

7.

On
07th
December
1991
Committee of Management decided to fill
up "short-term' vacancy of Assistant
Teacher, L.T. Grade (caused by ad-hoc
promotion so Smt. Rama Dixit) by
making direct selection. Smt. Kusum
Singh, since working on ad-hoc basis in
C.T. Grade, was, therefore, not eligible
for second 'ad-hoc' promotion on the post
in L.T. Grade. The then Regional
Inspectress of Girls Schools, however,
initially rejected the proposal of the
management vide order dated 20th May
1993. The Committee of Management,
however, passed another resolution dated
16th July 1993 recommending the name of
Smt. Shashi Saxena (present appellant) to
be appointed by direct selection on ad-hoc
basis against aforementioned short term
vacancy in L.T. Grade(earlier held by
3All] Smt. Shashi Saxena V. Dy. Director of Education, Agra and others 246
Smt. Rama Dixit). Papers were sent to the
Regional Inspectress of Girls Schools and
the then Regional Inspectress of Girls
Schools accorded approval to the said
proposal of ad-hoc appointment of Smt.
Shashi Saxena vide letter dated 28th
August 1993.

8. It appears that Smt. Kusum Singh
made representation dated 01st October
1993 raising grievance that she should
have been promoted against the post of
Assistant Teacher , L.T. Grade (vacated
by Smt. Rama Dixit). Having found no
positive action in her favour, Smt. Kusum
Singh filed Writ Petition No 3054 of 1994
(subsequently amended and prayed for
issuing writ of certiorari to quash orders
dated 02nd July 1993. Annexure-11 to the
Writ Petition dated 28th August 1993.
Annexure 12 to the Writ Petition, dated
16th October 1993 Annexure-13 to the
Writ Petition, passed by the management
and the Regional Inspectress of Girls
Schools, dated 14th September 1994.
Annexure 1-4 to the Writ Petition and
date 10th January 1995. Annexure-15 to
the Writ Petition passed by Regional
Inspectress of Girls Schools, in favour of
Smt. Shashi Saxena. Perusal of the
impugned
order
dated
10th
January
1995passed by the Deputy Director of
Education
(Annexure-5
to
the Writ
Petition) shows that the claim of Smt.
Kusum Singh was rejected on the ground
that she was working on ad-hoc basis
against the short-term vacancy in C.T.
Grade and hence she could not be
considered for second ad-hoc appointment
by promotion in L.T. Grade.

9.

Smt.
Kusum
Singh
in
aforementioned petition also claimed writ
of mandamus directing the Respondents
to promote her on the post of Assistant
Teacher, L.T. Grade, on short term
vacancy caused by promotion of Smt.
Rama Dixit on the post of Lecturer
(Hindi) and also for payment of salary to
her as Assistant Teacher in L.T. Grade
with effect from July 1993. Smt. Kusum
Singh also filed application for interim
order, which was rejected vide order
dated 30th July 1997.

10. Smt. Shashi Saxena field
Counter Affidavit and contested the claim
of Smt. Kusum Singh. Smt. Shashi
Saxena
in
Para
3
to
9
of
the
Supplementary Counter Affidavit sworn
on 23rd March 1996 stated that the then
Deputy Director of Education, Ram
Naresh Suman had objected on payment
of salary after 30th June 1986 to Smt.
Kusum Singh as her appointment was
approved up to 19th May 1986 and
initially refused to regularise the services
of Smt. Kusum Singh vide letters dated
13th October 1995 and 22nd December
1995.
Aforementioned
orders
were
changed without assigning reasons by the
same authority illegally, arbitrarily and
apparently
due
to
extraneous
considerations.
There
were
general
complaints against said Ram Naresh
Suman for acting arbitrarily and illegally
on the eve of his retirement (which was
due on 31st January 1996). Director of
Education was pleased to stay such orders
vide order dated 25th January 1996 (copy
filed along with Supplementary Counter
Affidavit). Smt. Kusum Singh, therefore,
get no benefit or valid base for her claim
on the basis of these illegal orders.

11. Undisputedly, Shashi Kant
Sharma (whose post of C.T. Grade
Assistant Teacher was held by Smt.
Kusum Singh) was regularised by the
Deputy Director of Education vide order
247 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
dated 23rd January 1996 as Assistant
Teacher in LT. Grade under Section 33-B,
U.P.
Secondary
Education
Service
Commission Act, 1932 (Annexure-8 to
the affidavit in the leading case). In the
said order, it was mentioned that Smt.
Kusum Singh was not regularised because
of position of vacancy with respect to the
post held by her not being clear. It has
also come on record that Smt. Kusum
Singh was subsequently regularised by
the order of Deputy Director of Education
dated 29th January 1996. Annexure-9 to
the affidavit in leading Appeal where
under Smt. Kusum Singh was regularised
in C. T. Grade with effect from 07th
August 1993. Aforesaid orders of the
Deputy Director of Education dated 23rd
January 1996 and 29th January 1996
(Annexure 8 and 9 referred to above) go
to show that while Smt. Shashi Saxena
was regularised as Assistant Teacher with
effect from 07th August 1993 in L.T.
Grade,
Smt.
Kusum
Singh
was
Regularised as Assistant Teacher with
effect from 07th August 1993 in C.T.
Grade.

12. It is clear and beyond doubt that
Smt. Kusum Singh was working on adhoc basis against short-term vacancy in
C.T. Grade when Smt. Shashi Saxena was
appointed on regular basis as Assistant
Teacher in L.T. Grade vide order of
approval dated 28th August 1993 passed
by Regional Inspectress of Girls Schools
in favour of Smt. Shashi Saxena. This
goes to show that Smt. Kusum Singh has
no right whatsoever to claim appointment
on the post of L.T. Grade which was
vacated by Smt. Rama Dixit in the year
1990. To this extent we find no as
irregularity or illegality in the order of
Deputy Director of Education date 10th
January 1995 (Annexure-15 to Writ
Petition).

In view of the above, the relief's
claimed by Smt. Kusum Singh in Writ
Petition No.3054 of 1994 cannot be
granted. Writ Petition deserves to be
dismissed.

13. Consequently, Writ Petition
No.3054 of 1994 is dismissed Special
Appeal No.475 of 1998 allowed with
costs.

II- Special Appeal No. 478 of 1998
(Smt.
Shashi
Saxena
Vs
Deputy
Director of Education & others) arising
out of Writ Petition No.20849 of 1996
(Smt.
Shashi
Saxena
Vs
Deputy
Director of Education & others.)

Smt. Shashi Saxena through this
Petition
claimed
writ
of
mandamus
against the Respondents to allow her to
continue on the post Assistant Teacher in
L.T. Grade in the College Though she
was appointed initially against short-term
vacancy and notwithstanding that Smt.
Rama Dixit, permanent incumbent had
attained age of superannuation and retired
with effect from 30th June 1996, and ,
consequently, substantive vacancy had
occurred with effect from 01st July 1996.

14. Smt. Shashi Sacena continued to
work as such irrespective of the above
order of Deputy Director of Education
dated 29th January 1996 in favour of Smt.
Kusum Singh apparently due to the order
of Director of Education dated 25th
January 1996 (copy on record).

In this petition learned single Judge
at the admission stage vide order dated
3All] Smt. Shashi Saxena V. Dy. Director of Education, Agra and others 248
04th July 1996 directed status quo as on
date to be maintained.

15. Division Bench decision of this
Court in the case of Raj Kumar Verma
Versus District Inspector of Schools,
Saharanpur and others-1999 (3) Education
and Service Case 1950 - Pr. 10 -
(referring to the Full Bench case of
Pramila Mishra versus Deputy Director of
Education, Jhansi Division, Jhansi and
others reported in (1997) 2 UPLBEC
1329),
observed
that
the
question'
whether an ad-hoc appointee working
against short terms vacancy shall cease
automatically on considered in the said
Full Bench. Above referred Para 10 of the
said Division Bench Judgment reads:-

"10. The question herein is not whether a
teacher appointed in a short-term vacancy
is entitled to continue as of right even
after the vacancy is converted into a
substantive
vacancy,
The
Question
involved in the instant case is whether the
appellants are entitled to be considered for
being given substantive appointment. The
right to be so considered for being given
substantive appointment under Section
33-B accrues only upon conversion of the
short term vacancy into substantive
vacancy as provided in sub-section (1) of
Section 33-B. A teacher appointed in
short term vacancy on or before the dates
specified in sub-clause (a) (i) of subsection (1) of Section 33-B if not found'
suitable' and 'eligible' to get substantive
appointment would cease to hold the post
on such date as the State Government
may by order specify. That is how the
provisions contained in Section 33-B of
U.P. Act. No. 5 of 11982 "interact" with
those of the U.P. Secondary Education
Service
Commission
(Removal
of
Difficulties) (Second) Order, 1981 in
respect of teachers appointed prior to the
date
specified in the Section. The
Question as to how do the two provisions
"Interact"
has not been specifically
answered by the Full Bench in Parmila
Mishra's case (supra). In our opinion the
right of a teacher appointed in a short
term vacancy on or before the date
specified in Section 33-B (1) accrues only
upon the short term vacancy being
converted into a substantive vacancy and
a teacher, appointed in short term vacancy
on or before the specified dates, who is
not found 'suitable' and 'eligible' or
substantive appointment shall cease to
hold the appointment on such date as the
State Government may be order specify
and not on the date short term vacancy
came to be converted into substantive
vacancy. The question in our considered
opinion, needs to be examined by the duly
constituted
Selection
Committed
comprehended by sub-section (3) of
Section 33-B as the appellants were
concededly appointed in Certificate of
Teaching Grade before the specified date
namely, May 13, 1989. whether they
fulfill other conditions of being given
substantive appointment is a question
which is to be decided by the Selection
Committee. In our opinion, therefore, the
judgment of the learned single Judge
needs to be modified accordingly for
nothing in Parmila Mishra's case inhibits
substantive appointment being given to a
teacher appointment against a short term
vacancy prior to the dates specified in
Section 33-B of U.P. Act No.5 of 1982 if
the conditions stipulated therein are
satisfied and such teacher is found by the
Selection
Committee
'suitable'
and
eligible' for being given substantive
appointment. As a matter of fact the
question as to the "interaction" of Section
33-b of U.P. Act No.5 of 1982 with the
249 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
provisions
contained
in
the
U>P.
Secondary
Education
Service
Commission (Removal of Difficulties)
(Second) order, 1981 though posed by
Full Bench in Parmila Misra has not been
answer, perhaps due to inadvertence, if
we may say so with almost respect and
humility. The contention of Sri Sabhajeet
Yadav, Standing Counsel is, therefore,
unacceptable to us"

16.
 The Deputy Director of
Education, U.P. in the letter dated 17th
August
1996
(Annexure-2
to
the
Supplementary
Affidavit
along
with
Miscellaneous Application No. 13364 of
2000) had taken the same view as has
been upheld by the Division Bench of this
Court in the case of Raj Kumar Verma
(supra). The Regional Joint Director of
Education, Agra, after hearing concerned
parties including Smt. Kusum Singh, vide
order dated 10th February 1999, found that
said Smt. Kusum Singh was working on
ad-hoc
basis
by
direct appointment
against short-term vacancy on the post of
Assistant
Teacher
(C.T.
Grade);
a
vacancy caused by ad-hoc short term
promotion of Smt. Shashi Kant Sharma as
Assistant Teacher from C.T. Grade to the
post of Assistant Teacher L.T. Grade and
that Smt. Kusum Singh has been rightly
regularised as Assistant Teacher in C.T.
Grade under Section 33-A with effect
from 07th August 1993. (Annexure SA-1
to the Supplementary Affidavit annexed
with
Miscellaneous
Application
No.
13364 of 2000).

17. Hence, it cannot be said that the
services of Smt. Shashi Saxena came to
an end automatically on the post of
Assistant Teacher in L.T. Grade being
converted into substantive vacancy on the
retirement of Smt. Ram Dixit. There
being no adverse circumstance or material
against the working of Smt. Shashi
Saxena as such, we find no justification in
depriving said Smt. Shashi Saxena the
relief claimed in Writ Petition No. 20349
of 1996. Writ Petition No. 20349 of 1996
is allowed.
Consequently, Special Appeal No.
478 of 1998 is allowed with costs.

18. A writ of mandamus is issued
against the Respondents to allow the
Petitioner-Smt. Shashi Saxena to continue
on the post of L.T. Grade Teacher in
College even after short-term vacancy on
the post held by her got converted into
substantive vacancy with effect from 30th
June 1996 to pay arrears of salary and to
continue
to
pay
in
future
such
salary/emoluments, etc, as may become
due in accordance with law until she is
finally regularised and /or a duly selected
candidate
by
the
U.P.
Secondary
Education Selection Board Joins the post,
as the case may be.

III- Special Appeal NO. 477 of 1998
(Smt. Shashi Saxena versus Deputy
Director of Education & others) arising
out of Writ Petition No.33235 of 1996
(Smt. Shashi Saxena versus Deputy
Director of Education & others).

19. This Writ Petition was filed by
Smt. Shashi Saxena claiming writ of
mandamus
commanding
concerned
Respondent Nos. 2,3 and 4 to pay her
salary regularly of the post of L.T. Grade
teacher in the College with effect from
July 1996 and punish Subhash Chand
Jaiswal, the then Accounts officer in the
Office of District Inspector of Schools for
willfully disobeying the order of this
Court dated 04th June 1996 (Annexure-5
to the Writ Petition) and that of his
3All] Smt. Shashi Saxena V. Dy. Director of Education, Agra and others 250
superiors dated 15th July 1996, 07th
August 1996, 17th August 1996 and 19th
August 1996 (Annexures-6 to 9 to the
Writ
Petition)
and
further writ of
mandamus commanding the Respondents
to decide her several representation
(copies filed as (Annexures-10,11,12,13
and 15 to the Writ Petition) as well as for
direction to the concerned authorities to
regularly pay salary to the petitioner on
the post of Assistant Teacher in L.T.
Grade.

Relief claiming writ of mandamus
for deciding representation has lost its
efficacy in view of the fact that Writ
Petition No. 3054 of 1994 has been
allowed.

20. The other relief's (regarding
continuance of the Petitioner as Assistant
Teacher in L.T. Grade in the College with
effect from July 1996 and to allow the
Petitioner
to
continue
as
Assistant
Teacher in L.T. Grade, if she has not been
regularised as yet and be paid salary till a
regularly selected candidate by the U.P.
Secondary Education Board joins the post
in question) have already been granted
and the same are affirmed.
IV- Special Appeal No. 476 of 1998
(Smt. Shashi Saxena versus Deputy
Director of Education & others) arising
out of Writ Petition No. 37288 of 1998 -
Smt. Shashi Saxena versus Deputy
Director of Education & others.

21. Smt. Shashi Saxena again filed
Writ Petition No. 37288 of 1998 seeking a
writ of certiorari to quash the impugned
order dated 29th January 1996 passed by
Deputy Director of Education informing
the manager of the College that he had
regularised the services of Smt. Kusum
Singh. In view of the facts stated above,
we find that this petition is misconceived
inasmuch as regularisation of Smt. Kusum
Singh as Assistant Teacher in C.T. Grade
under the impugned order does not affect
or in any manner prejudice any right of
Smt. Shashi Saxena.

Writ
Petition
is,
accordingly
dismissed
with the observation that
regularisation of Smt. Kusum Singh as
Assistant Teacher in C.T. Grade; does not
affect service of Smt. Shashi Saxena, in
any manner.

Special Appeal is also dismissed.

No order as to costs .

22. V- Special Appeal No. 479 of 1998
(Smt. Shashi Saxena versus Deputy
Director of Education & others) arising
out of Writ Petition No. 5585 of 1998
(Smt. Kusum Singh versus District
Inspector of Schools & others).

This Writ Petition filed by Smt.
Kusum Singh for claiming writ of
certiorari to quash order dated 19th
January 1998 passed by District Inspector
of Schools (Annexure-8 to the Writ
Petition) cannot be entertained and nor
she is entitled to the relief's claimed, - in
view of our decision in Writ Petition No
3054
of
1994,
This
Petition
is,
accordingly, dismissed.

Special Appeal No. 479 of 1998 is
allowed.

No other point has been raised.

No order as to costs.
251 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
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By the Court

1. Premala Singhania Kanya Inter
College Siswa Bazar Maharajganj is a
recognised
intermediate
College,
the
affairs of which are husbanded by the
Committee of Management constituted
under
and
in
accordance with the
provisions
of
the
U.P. Intermediate
Education Act 1921 (In short the Act).
Though recognised under the Act, the
college has bot yet been brought within
the preview of the U.P. High School and
Intermediate
(Payment of Salary to
teachers and other Employees) Act, 1971
and recognition accorded to the Institution
is sans financial aid (Vityavihin) The
posts of teachers including Principal have
bot
yet
been
sanctioned
and
the
management has to fend on its own
resources for payment of salary to
teachers who, it would appear, have been
appointed under section 7 AA of the Act.
One of the conditions for recognition as
contained in the order dated 16.01.1997 is
"Niyamanusar
Ek
Yogya
Pradhancharya
Kee
Niyukta
Kee
Jaye". This condition in the recognition
order
being
Annexure
1
to
the
supplementary affidavit, may lead to an
inference that the post of Principal should
be deemed to have been created by order
dated 16.01.1997 itself but in the absence
specific pleading and arguments in this
regard it would be but proper to forbear
from expressing any opinion on this point.