# Smt. Uma Gupta v. District Inspector of Schools, Allahabad and others

- **Citation:** (2011) 2 ILRA 517
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-07
- **Case number:** Special Appeal No. 463 of 2010
- **Bench:** Amitava Lala, A.C.J. Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-uma-gupta-v-district-inspector-of-schools-allahabad-and-others-41912
- **Pages:** 4

## Headnote

Act
1982-Section
33(c)
iii-ARegularization-Petitioner/Appellant
continuously working since the date of
her
initial
appointment-till
date
of
commencement of Act-juniors already
regularized, except the appellant-Single
Judge view-regarding negative equalitynot proper after having such clear cut
Statutory Provision to the extent if more
than one teachers appointed on same
day-elder
in
age
entitled
for
recommendation.
518 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Held: Para 9

Against this background, we dispose of
the appeal by saying that the matter will
be
placed
before
the
appropriate
Regularisation
Committee
constituted
under Section 33-B and 33-C of the U.P.
Secondary Education Services Selection
Board Act, 1982 for the purpose of
coming an appropriate conclusion as
early as possible preferably within one
month from the date of communication
of this order. For the purpose of effective
adjudication all the parties concerned
will be given opportunity of hearing and
the Committee will pass appropriate
reasoned order upon hearing all the
parties. Copy of the paper book of this
special appeal can also be treated as part
and parcel of the representation, if any,
to
be
filed
before
the
authority
concerned as an additional papers. It is
obvious that at the time of consideration
the cause of the appellant-petitioner
question of her initial appointment will
also be adjudged.

## Text

2 All] Smt. Uma Gupta V. District Inspector of Schools, Allahabad and others
517
Article Nos. I and IV, but on the other
hand,
imposed
the
penalty
of
Rs.1,99,897/- under Regulation 56 of the
Food
Corporation
of
India
(Staff)
Regulation, 1971. Both the stands are self
contradictory in nature. Therefore, it is a
clear case of disagreement with the report
of the enquiry officer, without affording
any opportunity of hearing. Consequently,
imposition of penalty of recovery of
Rs.1,99,897/- without any pecuniary loss
to the appellant-Corporation is colourable
exercise of power. That apart, the
respondent- writ petitioner has suffered
two punishments; (i) reversion, and (ii)
compulsory retirement. Even thereafter
imposition of penalty for a sum of Rs.
1,99,897/- without any pecuniary loss, as
established before the enquiry officer and
as accepted by the disciplinary authority
as judicious, is not only harsh but
disproportionate in nature.

11. It is to be remembered that
principle of unjust enrichment is not
required to be looked from the angle of
fiscal disputes but from the angle of
other disputes like a dispute between
master and servant, who is not in equal
bargaining position with the other,
particularly when the Government or
governmental bodies claim to be model
employer.

12. In further, rights and duties are
occupying two distinct places. Definitely
one can be required to be punished for
just cause but not for unjust cause. It is
also to be seen from the social point of
view. Due to commercial or economical
globalization, we can not forget the
preamble of the Constitution. This is the
case where imposition of penalty is
absolutely unjusticiable on the part of the
appellant and as such, the amount of
penalty, which has been recovered by the
appellant
from
the
respondent-writ
petitioner, is required to be returned to
the respondent-writ petitioner within a
period of one month from this date,
failing which it will carry simple interest
@ 6% per annum till the date of actual
payment.

13. Accordingly, the special appeal
is
disposed
of,
however,
without
imposing any cost. Interim order, if any,
is merged with the final order.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2011

BEFORE
THE HON'BLE AMITAVA LALA, A.C.J.
THE HON'BLE ASHOK SRIVASTAVA, J.

Special Appeal No. 463 of 2010

Smt. Uma Gupta

 ...Appellant
Versus
District Inspector of Schools, Allahabad
and others

 ...Respondent

Counsel for the Appellants:
Sri Anil Bhushan

Counsel for the Respondents:
C.S.C.

U.P. Education Service Selection Board
Act
1982-Section
33(c)
iii-ARegularization-Petitioner/Appellant
continuously working since the date of
her
initial
appointment-till
date
of
commencement of Act-juniors already
regularized, except the appellant-Single
Judge view-regarding negative equalitynot proper after having such clear cut
Statutory Provision to the extent if more
than one teachers appointed on same
day-elder
in
age
entitled
for
recommendation.
518 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Held: Para 9

Against this background, we dispose of
the appeal by saying that the matter will
be
placed
before
the
appropriate
Regularisation
Committee
constituted
under Section 33-B and 33-C of the U.P.
Secondary Education Services Selection
Board Act, 1982 for the purpose of
coming an appropriate conclusion as
early as possible preferably within one
month from the date of communication
of this order. For the purpose of effective
adjudication all the parties concerned
will be given opportunity of hearing and
the Committee will pass appropriate
reasoned order upon hearing all the
parties. Copy of the paper book of this
special appeal can also be treated as part
and parcel of the representation, if any,
to
be
filed
before
the
authority
concerned as an additional papers. It is
obvious that at the time of consideration
the cause of the appellant-petitioner
question of her initial appointment will
also be adjudged.

(Delivered by Hon'ble Amitava Lala, A.C.J.)

1. Amitava Lala, J. - This special
appeal is arising out of an order passed by
learned Single Judge on 18.2.2010. The
writ petition was dismissed due to lack of
merit. Amendment application which has
been made by the appellant-petitioner
therein was also rejected. The writ
petition was originally filed for the
purpose of getting the salary.

2. During consideration of the cause,
a question arose before the learned Single
Judge whether the service of the petitioner
can be regularised or not and the court
ultimately held that 10 teachers were
appointed as against seven vacancies.
Therefore, neither the service of the
petitioner can be regularised nor she can
get salary. It was argued before the
learned Single Judge and also before us
that by different orders several other
teachers'
services
were
regularised
excepting the petitioner who is the
appellant herein. The learned Single
Judge held that there cannot be any
negative equality and no mandamus can
be issued by the Court to that extent.

3. In view of the aforesaid facts, by
preferring this appeal, Mr. Anil Bhushan,
learned
counsel
appearing
for
the
appellant, has contended before this court
that there is a committee called as
Regularisation
Committee
constituted
under Section 33-B of U.P. Secondary
Education Services Selection Board Act,
1982. Therefore, when there is a scope,
the matter can be sent to such committee,
which can resolve the issue either way.
The provisions of Section 33-B was
inserted in the Act w.e.f. 7th August,
1993. There is other provision being
Section 33-C which speaks about the
regularisation
of
certain
more
appointments which was inserted by an
amendment of 1998 w.e.f. 20th April,
1998.

4. Mr. Rama Nand Pandey, learned
Standing Counsel, appearing for the State
has contended that the appointment, if any,
on ad-hoc basis can be considered by the
Regularisation Committee provided it has
been done against the substantive vacancy
and if the candidate is not appointed against
the substantive vacancy but in excess, no
regularisation can be made. Moreover, no
such case has been made out before the
learned Single Judge.

5. On the other hand Mr. Anil
Bhushan has contended that the report of
the
Regularisation
Committee
dated
2.9.2004, at page 202 of the paper book,
was the part and parcel of the amendment
2 All] Smt. Uma Gupta V. District Inspector of Schools, Allahabad and others
519
application which was rejected by the
learned Single Judge alongwith the writ
petition. It provides that nine persons were
appointed in L.T. Grade and six persons
were appointed against C.T. Grade and by
the report it has been said that total 15 posts
could be there when both the grades are
merged with each other. Hence, according
to him the appellant cannot be said to be
"not appointed against the sanctioned post".

6. He further said that she is the senior
most amongst all and if the juniors are
accommodated in the substantive vacancies,
how the appellant can be eliminated by
saying that she was not appointed against
sanctioned post.

7. However, upon being heard Mr.
Bhushan and Mr. Pandey we have gone
through the relevant parts of both sections
33-B and 33-C and found that if some
body is continuously serving in an
institution
from
the
date
of
such
appointment
upto
the
date
of
commencement of the Act as referred to
in sub-clause (iii) of Clause A, then
service can be regularised to which the
submission of the respondent is that adhoc appointment can be regularised only
against substantive vacancy. But as per
sub-section 3-A of Section 33-C the
names
of
the
teachers
shall
be
recommended
for
substantive
appointment in order to seniority as
determined from the date of their
appointments. Section 33-B says that if
more than one teacher are appointed
on the same day, the teacher who is elder
shall be recommended first. Ultimately
Mr. Pandey has submitted before this
Court that if the appellant is dissatisfied
with the order, the matter could be
remanded back to the learned Single
Judge for the purpose of passing an
appropriate order.

8. We are of the view that there is a
little difference between hearing of the
writ petition by the learned Single Judge
and the special appeal arising out of writ
petition by the Division Bench so far as
the procedure as per the Allahabad High
Court
Rules,
1952
is
concerned.
Restrictions made in the procedure are to
maintain check and balance but not for
any other reasons. Some of the writ
petitions are required to be heard by the
learned Single Judge which will be ended
there and from such order no special
appeal lies before any Division Bench.
Similarly, some of the writ petitions can
not be heard by the learned Single Judge
but will be heard by the respective
Division Benches. Therefore, such type of
structures as made by the High court are
only for the purpose of administrative
exigency. Against this background, there
is no embargo for the Court of special
appeal which is competent to hear out any
appeal from an order of the learned Single
Judge passed in writ jurisdiction and act
as Court of first instance. In such
circumstances, it is desirable that unless
the situation prescribes, the matter is
required to be disposed of by the Court of
special appeal in the place of remanding
matter to the learned Single Judge in a
routine manner. On the other hand, it will
affect the arrear disposal by the High
Court.

9. Against this background, we
dispose of the appeal by saying that the
matter
will
be
placed
before
the
appropriate
Regularisation
Committee
constituted under Section 33-B and 33-C
of the U.P. Secondary Education Services
Selection Board Act, 1982 for the purpose
520 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
of coming an appropriate conclusion as
early as possible preferably within one
month from the date of communication of
this order. For the purpose of effective
adjudication all the parties concerned will
be given opportunity of hearing and the
Committee will pass appropriate reasoned
order upon hearing all the parties. Copy of
the paper book of this special appeal can
also be treated as part and parcel of the
representation, if any, to be filed before
the authority concerned as an additional
papers. It is obvious that at the time of
consideration the cause of the appellantpetitioner
question
of
her
initial
appointment will also be adjudged.

10. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Service Bench No. - 678 of 2010

Mahendra Pratap Singh
 ...Petitioner
Versus
State Of U.P.,Thru. Prin. Secy.,Training &
Employment and others ...Respondents

Counsel for the Petitioner:
Sri Alok Kr. Tripathi

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Recovery
of
excess
amount
from
gratuity-after 3 years of retirement
amount
Rs.
200586/-withheld
and
remaining amount released on ground of
excess payment-due to miscalculation by
the
authorities-petitioner
not
found
instrumental or mis representated in
drawing
excess
amount-if
excess
amount paid with collusion of employees
it can be dealt suitably-but such excess
amount can not be withheld.

Held: Para 9

In another case, reported in 2004
ESC(All) 455 Union of India versus
Rakesh Chandra, a Division Bench of this
Court
after
considering
catena
of
judgments of Hon'ble Supreme Court
held that incorrect calculation of pay
scale and payment thereof of no fault on
the part of the employee shall not make
out a ground to recover the same.

In view of settled proposition of law, it
appears that once the amount is paid for
no fault on the part of the government
employee, then at later stage, that too
after retirement, the same cannot be
recovered. Of course, in case higher payscale is paid because of collusive act
between the office and the employee
concerned, then in such situation, it will
be open for the State to recover the
same.
Case law discussed:
[2004 (22) LCD 486]; [2004 (22) LCD 490];
(1994) 2 SCC 521; [1998 (16) LCD-1277];
(1994) 6 SCC 589; (1981) 1 SCC 449; 2004
ESC (All) 455

(Delivered by Hon'ble Devi Prasad Singh,J. )

1. Heard learned counsel for the
petitioner and learned Standing Counsel.
With the consent of the parties, we
proceed to decide the writ petition finally
at admission stage.

2. The petitioner was appointed on
the post of Assistant Employment
Officer
through
Public
Service
Commission on 12.11.1976. After ten
years of satisfactory service, he was
given selection grade and posted as
District
Employment
Officer
on
11.11.1986. By order dated 31.10.2001