# Sri Arvind Kumar Chaturvedi v. District Inspector of Schools Jaunpur and another

- **Citation:** (2003) 3 ILRA 930
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-15
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-arvind-kumar-chaturvedi-v-district-inspector-of-schools-jaunpur-and-another-40238
- **Pages:** 5

## Headnote

Law-
U.P.
High
Schools
&
Intermediate
Colleges
(Payment
of
Salaries of Teachers & other employees)
Act 1971, Sections 2 (f), 9- appointment
on non existant post though approved by
DIOS-later on, approval rescinded and
salary stopped-petitioner failed to prove
the validity of appointment-whether act
of respondents held to be vitiated?-held,
'no'.

Held- Para 5

It transpires from the above conspectus
that
approval
accorded
to
the
appointment by the District Inspector
Schools operated in vacuum inasmuch as
there was no sanctioned post and
resultantly,
the
action
of
the
respondents in rescinding approval and
stopping salary of the petitioner cannot
be held to be vitiated. I would not
forbear from expressing that the onus
lay on the petitioner to prove the validity
of his appointment and petitioner having
failed to do, the bald averments do not
commend to me for acceptance.
Case law discussed:
AIR 1988 SC 2181

## Text

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930 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

"Before the decision to retire a
government servant prematurely is taken
the authorities are required to consider the
whole record of service. Any adverse
entry prior to earning of promotion or
crossing of efficiency bar or picking up
higher rank is not wiped out and can be
taken into consideration while considering
the overall performance of the employee
during whole of his tenure of service
whether it is in public interest to retain
him in the service. The whole record of
service of the employee will include any
uncommunicated adverse entries as well."

26.

The
present
compulsory
retirement have been passed fairly,
bonafidely free from arbitrariness, in the
public interest and in the interest of the
administration and in consonance to the
fundamental rules by way of order of
simplicitor, therefore, is in consonance to
the decision of Supreme Court (1992) 2
SCC 317 P & T. Board v. C.S.N.
Murthy and on the material available in
the service record of the petitioner and in
the light of judgment of Baikuntha Nath
(supra) and AIR 1994 SC 1261 Union of
India v. N.P. Seth, (1998) 4 SCC 92
State of Punjab v. Gurudas Singh 1998
(9) SCC 220; U.P.S.R.T.C. v. Hari Nath
Singh (1997) 7 SCC 483; Union of India
v. G. Ganayuthan and 1997 (6) SCC 381
State of Punjab v. Bakshi Singh.

27. The verdict of the Supreme
Court and different decisions of the High
Court were considered earlier also by this
Court and this Court (Single Judge)
(Hon'ble R.B.Misra, J.) has taken similar
view in Writ petition no. 19966/1989
(Radha Charan Yadav Vs. Chairman,
Town Area Committee, Mathura decided
on 21.7.03, in writ petition no. 1768/92
(Bhagwan
Singh
Vs.
Distirct
Magistrate,
Mathura
and
others)
decided on 23.7.03, in writ petition no.
17445/95 (Adya Prasad Pandey Vs.
State of U.P. and others) decided on
30.7.2003 and in writ petition no. 8365/96
(Mathura Prasad Vs. State of U.P. and
others) decided on 19.8.2003, where the
order of the compulsory retirement was
not interfered with.

28. I have heard learned counsel for
the parties. I find that the order of
compulsory retirement was passed after
perusing and considering all the entries
available in the service book and the
records pertaining to the petitioner by the
Screening Committee and in view of the
above analysis no opportunity of hearing
is required to be given and the provisions
of Articles 14, 21 and 311 of the
Constitution are not attracted while
passing
the
order
of
compulsory
retirement, more so the said order is
passed in the public interest and not by
way of punishment. I find no illegality
and impropriety in the said impugned
order, therefore, this Court is not inclined
to invoke its extra ordinary discretionary
jurisdiction under Article 226 of the
Constitution.

Therefore, writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2003

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 14269 of 1988.

Sri Arvind Kumar Chaturvedi ...Petitioner
Versus
District Inspector of Schools Jaunpur and
another

 ...Respondents
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3 All] Sri Arvind Kumar Chaturvedi V. District Inspector of Schools, Jaunpur and another
931
Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
Sri V. Malviya, S.C.
S.C.

Service
Law-
U.P.
High
Schools
&
Intermediate
Colleges
(Payment
of
Salaries of Teachers & other employees)
Act 1971, Sections 2 (f), 9- appointment
on non existant post though approved by
DIOS-later on, approval rescinded and
salary stopped-petitioner failed to prove
the validity of appointment-whether act
of respondents held to be vitiated?-held,
'no'.

Held- Para 5

It transpires from the above conspectus
that
approval
accorded
to
the
appointment by the District Inspector
Schools operated in vacuum inasmuch as
there was no sanctioned post and
resultantly,
the
action
of
the
respondents in rescinding approval and
stopping salary of the petitioner cannot
be held to be vitiated. I would not
forbear from expressing that the onus
lay on the petitioner to prove the validity
of his appointment and petitioner having
failed to do, the bald averments do not
commend to me for acceptance.
Case law discussed:
AIR 1988 SC 2181

(Delivered by Hon'ble S.N.Srivastava, J.)

1. By means of the present petition,
the petitioner has canvassed the validity
of the order-dated 12.4.1988 passed by
the District Inspector of Schools Jaunpur-
respondent no.1 as a consequence of
which the salary of the petitioner was
withheld.

2. The facts forming background to
the present controversy as set out in the
writ petition by the petitioner are that one
Sri
Nath
Yadav,
Asstt.
Clerk
in
Intermediate
College
Machchlishahr
District Jaunpur demitted the office as a
consequence of which applications were
invited. In the ultimate analysis, the
petitioner claims to have been selected
and appointed by means of letter dated
18th July, 1986 and in response thereto, he
reported for duty and joined on 20th July,
1986. It is further claimed that the
appointment of the petitioner received
approval on 30th June 1987. Subsequently,
Addl. Director of Secondary Education
enjoined District Inspector of Schools by
means of letter dated 31.12.1987,to
enquire
into
the
imputations
of
irregularities
indulged
in
by
Rama
Shanker
Pandey,
the
then
District
Inspector of Schools and Vijay Shanker
Srivastava, then Lekha Adhikari in the
office of District Inspector of Schools
Jaunpur between the period 1.7.83 and
31.12.1987 in the matter of appointments
of teachers and non-teaching staff in the
aided institutions attended with further
direction not to levy implementation to
approval accorded by the aforestated two
authorities during their tenure to the
promotions and appointments in relation
to teacher or non teaching staff in various
aided institutions in Jaunpur. In obedience
to the aforestated directives, the District
Inspector of Schools called upon all the
Principals/Managers
of
the
aided
institutions
under
the
Intermediate
Education Act to unfold details of such
appointments on prescribed format by 15th
April, 1988 at the same time, intimating
all concerned that the approval accorded
to the appointment and promotions by his
predecessor had been invalidated and
therefore, it was expressed that it was not
possible to order payment on the basis of
the approval accorded by his predecessor.
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932 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
3. The learned counsel for the
petitioner assailed the impugned order on
the counts that the petitioner was duly
appointed
by
the
Committee
of
Management in the substantive post
vacated by Sri Nath Yadav and the
appointment
was
validly
accorded
approval by the District Inspector of
Schools Jaunpur and as a sequel thereto,
payment of salary was released and made
to the petitioner. It was further canvassed
that the impugned order putting hold on
payment of salary to the petitioner was
made without affording any opportunity
of hearing and further that the order
stopping salary was made by the Addl.
Director of Secondary Education who in
law was not clothed with the power to
pass the order. Lastly, it was submitted by
the learned counsel that the District
Inspector of Schools did not apply his
mind and had a blinkered approach in
passing the impugned order inasmuch as
without enquiry into the merit of the
imputations, he meekly followed the
directives of his superior and acted on it
by stopping salary of the petitioner
followed by submission that the District
Inspector of Schools was not authorized
to review decision of his predecessor. In
opposition, learned Standing counsel
contended that the petition is liable to be
dismissed and the petitioner was not
entitled to salary and in vindication of his
stand, referred to the averments made in
paragraph 2 of the writ petition. The
precise contention of the learned counsel
is that though the petitioner claimed that
he was appointed on substantive vacancy
consequent upon demission of the office
by the incumbent Sri Nath Yadav, Asstt
clerk but at the same time, he did not
indicate the date of creation of post, date
of appointment of Sri Nath Yadav and the
date of his demission. The learned
counsel further pointed out that even the
date of advertisement of post in pursuance
of which the petitioner claims to have
applied and selected has not been
unfolded. Referring to the averments in
para 4 of the counter affidavit, learned
Standing
counsel
quipped
that
the
incumbent of the post namely Sri Nath
Yadav was in fact never appointed against
any sanctioned posts and that there were
only three sanctioned posts of nonteaching staff which were occupied by Sri
Abdul Hakim as Head clerk, Sri Pyare Lal
Maurya as Asstt. Clerk and Sri Bramdeo
Tiwari as Librarin-cum-clerk. He minced
no words to submit that besides the above
three posts, no other post was ever created
or sanctioned for the Institution and by
this reckoning, the appointment of the
petitioner was invalid ab initio.

4. Before delving into the merits of
the respective contentions of the learned
counsel, I feel called to refer to the
provisions bearing on the controversy
involved in the instant petition. Section 2
(f) of the U.P. High Schools and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
other
Employees)
Act,
1971
defines
an
employee as under:

"(f) employee" of an institution
means a non-teaching employee in
respect
of
whose
employment
maintenance grant is paid by the State
Government to the institution."

Likewise section 9 of the Act envisages as
under-

"9. Approval for post- No institution
shall create a new post of teacher or other
employee
except
with
the
previous
approval of the Director, or such other
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3 All] Sri Arvind Kumar Chaturvedi V. District Inspector of Schools, Jaunpur and another
933
officer as may be empowered in that
behalf by the Director."

5. It cyrstallises from the perusal of
the above provisions that the post has to
be created and sanctioned by the State
Government and the Institution is not
empowered to obtain approval for the post
which has not been created or sanctioned
by the State Government. The contention
of the learned Standing counsel bears
scrutiny that the petitioner has not
enumerated any details in relation to date
of creation of post or the date on which
advertisement was publicized either in the
writ petition particularly paragraph 2
thereof or the rejoinder affidavit in reply
to para 4 of the counter affidavit and by
this reckoning, the bald averments do not
bear out that the petitioner was appointed
in substantive post vacated by Sri Nath
Yadav and consequently, it lends colour
to the suspicion that the approval
accorded to the appointment of the
petitioner was valid approval. I have been
taken through para 2 of the writ petition
and again para 4 of the rejoinder affidavit
and the averments therein lack requisite
details and I am not convinced that the
claims of the petitioner deserves to be
nodded in acceptance for want of requisite
details. If the petitioner has claimed to
have been appointed validly he must
disclose requisite details. In Bharat
Singh and Ors v. State of Haryana and
others1 the Apex Court observed that
when
a
point
is
required
to
be
substantiated by facts, the party raising
the point, if he is the writ petitioner, must
plead and prove such facts by evidence
which must appear from the writ petition
and if he is the respondent, from the
counter affidavit. It was further observed

1 AIR 1988 SC 2181
that if the facts are not pleaded or the
evidence in support of such facts is not
annexed to the writ petition or to the
counter affidavit, the court will not
entertain the point. The Apex Court also
observed that there is a distinction
between a pleading under the C.P.C. and a
writ petition or a counter affidavit and
while in a pleading that is, a plaint or a
written statement the facts and not
evidence are required to be pleaded, in a
writ petition or in the counter affidavit not
only the facts but also the evidence in
proof of such facts have to be pleaded and
annexed to it. In the instant case, the
petitioner in vindication of validity of his
appointment
has
relied
upon
his
appointment letter (Annexure 1 to the
petition)
and
the
information
communicated by the Management to the
District Inspector of Schools (Annexure
2) and the approval of the District
Inspector of Schools (Annexure 3). The
aforestated documents do not embody any
of the requisite details to prove the point
bearing on validity of the appointment.
Here in the instant petition, it has not been
shown as to on what date the post claimed
to be substantive post, was sanctioned and
as to on what date advertisement was
publicized. The argument of the learned
Standing counsel carries substance that
the post held by the petitioner was not
sanctioned by the State government as
envisaged in section 9 of the Act and
State did not pay any maintenance grant
for the Institution. Besides, the petitioner
could
not
prove
validity
of
his
appointment by requisite details that he
was
appointed
on
substantive
post
sanctioned by the Government. In the
circumstances, mere bald statement that
the post was advertised and the petitioner
responded
to
the
advertisement
by
applying and consequently, he was
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934 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
appointed in the substantive capacity in
the post vacated by Sri Nath Yadav
without unfolding precise dates can at
best be termed as generalized and vague
averments
without
any
indicia
of
authenticity and in the circumstances, the
conclusion
is
irresistible
that
the
Committee
of
Management
induced
approval from the then District Inspector
of Schools against a non-existent post and
the petitioner was not appointed in
accordance with law on any sanctioned
post as contemplated under section 9 of
the U.P. High Schools and Intermediate
Colleges
(Payment
of
Salaries
of
Teachers and other Employees) act, 1971
and in consequence, he cannot be held
entitled to payment of salary from the
State Exchequer. It transpires from the
above conspectus that approval accorded
to the appointment by the District
Inspector Schools operated in vacuum
inasmuch as there was no sanctioned post
and
resultantly,
the
action
of
the
respondents in rescinding approval and
stopping salary of the petitioner cannot be
held to be vitiated. I would not forbear
from expressing that the onus lay on the
petitioner to prove the validity of his
appointment and petitioner having failed
to do, the bald averments do not
commend to me for acceptance.

6. As a result of foregoing
discussion, the petition fails and is
dismissed. Interim order which was
granted and operated is hereby vacated
and it would be open to the respondents to
initiate appropriate action for recovery of
the amount already paid as salary from
the State Exchequer against invalid
approval to the appointment of the
petitioner. Before parting it may be
observed that if the petitioner feels
aggrieved that he has performed duties
consequent upon his appointment, he may
claim his salary from the Management of
the College in question.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.09.2003

BEFORE
THE HON'BLE R.K. DASH, J.
THE HON'BLE V.S. BAJPAI, J.

Criminal Misc. Writ Petition No. 7699 of
2002

The Good Cause Association ...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri S.R. Singh
Sri P.K. Singh

Counsel for the Respondents:
Sri B.N. Singh, S.S.C.
Sri Giridhar Nath, S.C.
Sri Satish Chandra Misra
Sri Amarjeet Singh, A.G.A.

Constitution of India Article 226-Practice
and
Procedure-Judicial
Revier-in
administrative action-scope and ambitpetitioner unable to make out any casecourt not inclined to scrutinize policy
decision of the State.

Constitution of India Article 226-Judicial
revier in administration actions-relevant
report
under
scrutiny
by
State
Legislature-decision thereon not taken
yet-it is premature for the court to hold
an inquiry-to establish irregularity or
lapses
by
public
authority-however,
court may interfere if no decision is
taken or there is a delay in taking
decision.

Held-Para 10