# State of Karnataka & ors v. Umadevi (3)

- **Citation:** (2008) 1 ILRA 268
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-04
- **Case number:** Civil Misc. Writ Petition No. 59709 of 2007
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-karnataka-ors-v-umadevi-3-41025
- **Pages:** 7

## Headnote

U.P. State Universities Act, 1973-Section
49 (e) officiating Principal-Post Graduate
College-senior
most
teacher-without
possessing
minimum
requisite
qualification can not be appointed even
for short terms of 3 month on initial
stage-exemption
from
requisite
qualification can be granted only by the
selection Committee-approval of such
appointment
by
V.C.-immaterial
consequential direction issued.

Held: Para 23

From the impugned order of the ViceChancellor
of
the
University,
it
is
apparently clear that there are no
reasons recorded qua the issue of
prescribed
minimum
qualification
or
relaxation thereto in favour of Paras
Nath Chaubey. The Vice-Chancellor of
the University has misdirect himself in
recording that for a period of three
months Paras Nath Chaubey can be
permitted to continue as Officiating
1 All] Paras Nath Chaubey V. State of U.P. and others
269
Principa1 of the college, even if he is not
possessed of the degree of B.Ed. The
reason so recorded is based on complete
misreading of Statute 14.14 (2) of the
First Statutes of the Universities framed
under-the provisions of U.P. State of
Universities Act, 1973.
Case law discussed:
1997 (2) A.W.C. 2214 (NOC), (2001) 3
UPLBEC 218, 1998 (1) ESC 767

## Text

268 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
parties. That being so there can be hardly
any doubt that the court was not
competent to pass the impugned decree.
Hence the decree under execution must be
held to be a nullity."

19. In view of the above, we are of
the considered opinion that if the present
petitioners had not given an undertaking
in-consonance
with
the
statutory
requirement it will not be binding on the
Courts or Tribunal.

20. In view of the Constitution
Bench Judgement in the case of Secretary,
State of Karnataka & ors. vs. Umadevi (3)
& ors.; 2006 (4) SCC 1, relief of
regularization cannot be granted to a
person who has not been appointed in
consonance in accordance with law or
rules.
It
has
been
held
that
any
appointment made in contravention of
Articles 14 and 16 of the Constitution of
India-is void and cannot be given effect
to. A person not in service and further
who has not been appointed under any
procedure prescribed by law, cannot seek
remedy of regularization. In the instant
case, admittedly respondent no.1 had been
appointed unauthorizedly and without
following procedure prescribed by law.
Once the learned Tribunal had reached the
said conclusion that respondent no.1 was
an unauthorized substitute, no relief could
have been granted to respondent no.1 on
merit.

21. Thus in view of the above, the
writ petition succeeds and is allowed and
the impugned order dated 21st March,
2006 and dated 16th January, 2006 passed
by the Central Administrative Tribunal
are hereby quashed. There shall be no
order as to costs.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 59709 of 2007
Connected with
Civil Misc. Writ Petition No. 57894 of 2007

Paras Nath Chaubey

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

Counsel for the Petitioner:
Sri V.D. Shukla
Sri Ashok Khare

Counsel for the Respondents:
Sri P.S. Baghel
Sri G.K. Singh
S.C.

U.P. State Universities Act, 1973-Section
49 (e) officiating Principal-Post Graduate
College-senior
most
teacher-without
possessing
minimum
requisite
qualification can not be appointed even
for short terms of 3 month on initial
stage-exemption
from
requisite
qualification can be granted only by the
selection Committee-approval of such
appointment
by
V.C.-immaterial
consequential direction issued.

Held: Para 23

From the impugned order of the ViceChancellor
of
the
University,
it
is
apparently clear that there are no
reasons recorded qua the issue of
prescribed
minimum
qualification
or
relaxation thereto in favour of Paras
Nath Chaubey. The Vice-Chancellor of
the University has misdirect himself in
recording that for a period of three
months Paras Nath Chaubey can be
permitted to continue as Officiating
1 All] Paras Nath Chaubey V. State of U.P. and others
269
Principa1 of the college, even if he is not
possessed of the degree of B.Ed. The
reason so recorded is based on complete
misreading of Statute 14.14 (2) of the
First Statutes of the Universities framed
under-the provisions of U.P. State of
Universities Act, 1973.
Case law discussed:
1997 (2) A.W.C. 2214 (NOC), (2001) 3
UPLBEC 218, 1998 (1) ESC 767

(Delivered by Hon'ble Dr. B.S. Chauhan. J.)

1. These two writ petitions have
been filed by two lecturers of Sri Gandhi
Post Graduate College, Maltali, Azamgah
claiming a right to function as Officiating
Principal of the institution till regular
selected candidate recommended by the
U.P.
Higher
Education
Services
Commission joins the post. The claim set
up in both the writ petitions is for the
same post i.e. officiating principal. Both
petitioners have challenged the same
order of the Vice-Chancellor of Veer
Bahadur Singh Purvanchal University,
Jaunpur dated 8th September, 2007. These
two writ petitions have, therefore, been
tagged and are being decided by this
common judgment.

2. Heard Sri Ashok Khare, Senior
Advocate, assisted by Sri V.D. Shukla,
learned counsel for Paras Nath Chaubey,
Sri
G.K.
Singh,
Advocate,
learned
counsel for Dr. Ghanshyam Singh, Sri
P.S. Baghel, learned counsel for Veer
Bahadur Singh Purvanchal University,
Jaunpur and learned Standing Counsel for
State-respondents.

3. Sri Gandhi Post Graduate
College, Maltali, Azamgarh (hereinafter
referred to as the 'college') is a degree
college affiliated to Veer Bahadur Singh
Purvanchal
University,
Jaunpur
(hereinafter
referred
to
as
the
'University'). The permanent Principle of
the college, Dr. Dwij Ram Yadav retired
on 30th June, 2001. One Chandra Shekhar
Ojha was handed over charge of the post
of Principal on officiating basis between
1st July, 2001 to 30th January, 2004.
Thereafter Dr. Jagdish Prasad Pandey,
senior most teacher, was appointed as
officiating principal. Dr. Jagdish Prasad
Pandey attained the age of superannuation
on 1st January, 2007. He was, however,
continued as Principal of the institution,
even after he attained the age of
superannuation. Feeling aggrieved by the
said continuation, Paras Nath Chaubey,
present petitioner filed Civil Misc. Writ
Petition No. 20190 of 2007 (Paras Nath
Chaubey vs. State of U.P. & Ors.), which
was disposed of vide judgment and order
dated 24th April, 2007, with a direction
upon the Vice-Chancellor to consider the
matter
pertaining
to
the
officiating
appointment on the post of principal of
the college in a time bound manner.
Before the Vice Chancellor of the
University could take a decision in the
matter, Dr. Jagdish Prasad Pandey at the
end of the academic session i.e. 20th June,
2007, handed over the charge of the post
of officiating principal to Dr. Ghanshyam
Singh on 1st July, 2007.

4. According to Paras Nath
Chaubey, Dr. Ghanshyam Singh is junior
to him and therefore, not entitled to work
as officiating principal of the college in
preference to Paras Nath Chaubey.

5. The Vice-Chancellor of the
University, by means of order dated 8th
September, 2007, has held that Parash
Nath Chaubey is entitled to function as
officiating principal of the college for a
period of three months only.
270 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
6. Despite the order of ViceChancellor, Dr. Ghanshyam Singh did not
hand over the charge of the post of
officiating principal. This lead Paras Nath
Chaubey to file Civil Misc. Writ Petition
No. 59709 of 2007 for quashing the order
of Vice-Chancellor dated 8th September,
2007,
insofar
as
it
restricts
his
appointment (i.e. Paras Nath Chaubey), as
officiating principal of the college for a
period of three months only and with a
further relief that respondents may be
directed to permit Paras Nath Chaubey to
continue as Officiating Principal of the
college till regularly selected candidate
recommended
by
the
U.P.
Higher
Education Services Commission joins the
post.

7. Dr. Ghanshyam Singh has
independently filed Civil Misc. Writ
Petition No.57894 of 2007 challenging
the order of Vice-Chancellor of the
University dated 8th September, 2007
whereby he has approved the appointment
of Paras Nath Chaubey as officiating
principal of the college for a period of
three months only and with a further
prayer that he (Dr. Ghanshyam Singh)
should be permitted to continue as
officiating principal of the college and be
paid salary as and when it falls due.

8. Dr. Ghanshyam Singh contends
that although he is junior to Paras Nath
Chaubey, he is entitled to the appointment
on the post of officiating principal in
preference to Paras Nath Chaubey, who is
not possessed of the prescribed minimum
qualification as per the First Statutes of
the University applicable for the post of
principal of a Post Graduate Degree
College.
In
absence
of
prescribed
minimum qualification being possessed
by Paras Nath Chaubey, he cannot be
permitted to function as officiating
principal even for a single day. Dr.
Ghanshyam Singh therefore, contends
that he being the next senior most
Lecturer in the institution possessed of
minimum prescribed qualifications is
entitled to the officiating appointment on
the post of Principal in terms of the First
Statutes of the University.

9. In reply, learned counsel for Paras
Nath Chaubey, submits that as per Statute
10.20, senior-most teacher of the college
is entitled to be appointed as officiating
principal
till
a
regularly
selected
candidate joins and it is immaterial that
such senior-most teacher is not possessed
of the essential qualification prescribed
for the post of regular Principal.

10. From the records of these two
writ petitions, it is an admitted position
between the parties that permanent
vacancy on the post of Principal of the
college has been caused because of
retirement of the earlier principal. The
dispute
pertains
to
the
officiating
appointment on the post of Principal
pending regular selection by the U.P.
Higher Education Services Commission
in accordance with U.P. Act No. 16 of
1980.

11. It is also admitted to the parties
that Paras Nath Chaubey is senior to Dr.
Ghanshyam
Singh
in
the
college.
Officiating appointment on the post of
Principal of the college pending regular
selection is to be made in accordance with
Statute 10.20 of the First Statutes of Veer
Bahadur Singh Purvanchal University,
Jaunpur, which reads as follows:

"10.20 tc fdlh lEc) egkfo|ky; ds izkpk;Z dk
in fjDr gks tk;] rc izcU/kra= fdlh v/;kid dks rhu
1 All] Paras Nath Chaubey V. State of U.P. and others
271
ekl dh vof/k ds fy;s ;k tc rd fdlh fu;fer izkpk;Z dh
fu;qfDr u gks tk;] buesa ls tks Hkh igys gks] izkpk;Z ds :i
esa LfkkukiUu :i esa dk;Z djus ds fy;s fu;qDr dj ldrk
gSA ;fn rhu ekl dh vof/k dh lekfIr ij ;k mlds iwoZ
dksbZ fu;fer izkpk;Z fu;qDr u fd;k ;k ,slk izkpk;Z viuk
in xzg.k u djsa rks egkfo|ky; dk T;s"Bre v/;kid ,sls
egkfo|ky; ds izkpk;Z ds :i esa dk;Z djsxk tcrd fd dksbZ
fu;fer izkpk;Z fu;qDr u dj fn;k tk;A"

12. From the aforesaid provisions, it
is apparently clear that initially for a
period of three months, the Management
of the institution has been conferred a
right to appoint any teacher as officiating
principal. In case regular principal is not
appointed even during this period of three
months, the Management is obliged to
hand over the charge of the office of
Principal on officiating basis to the
senior-most lecturer of the degree college.

13. The issue up for consideration
before this Court is as to whether for such
officiating appointment be it for a limited
period of three months or for a period
subsequent to three months, till the
regular selected candidate recommended
by the U.P. Higher Education Services
Commission joins the post, is it necessary
that the teacher/lecturer concerned should
be possessed of the prescribed minimum
qualification as provided under the
Statutes applicable to the post of Principal
or not.

14. Although the said Statute 10.20
does not refer to any such condition,
however,
we
must
record
that
appointment on various posts under the
University have to be made strictly in
accordance with the provisions of U.P.
State Universities Act, 1973 and Statutes
applicable as a whole and no provision is
to be read in isolation.

15. Section 49 (e) of the U.P. State
Universities Act, 1973 provides for
Statutes being framed for laying down the
minimum qualification for various posts
and reads as follows:

"49. Statutes......
(e)
the
recruitment
(including
minimum qualifications and experience)
and
their
emoluments
and
other
conditions
of
service
(including
provisions
relating
to
compulsory
retirement) of persons appointed to other
posts under the University;"

16. Section 49 (e) provides that
essential qualifications for recruitment of
persons to be appointed on a post under
the University may be laid down by the
Statutes. In exercise of power under
Section 49{e), the First Statutes of the
University contained in Part-II, lays down
the prescribed minimum qualifications for
appointment on the post of Principal in
various degree colleges affiliated to the
University, so far as the Post Graduate
Degree Colleges are concerned. The
minimum essential qualifications have
been provided for under Statute 14.14
sub-statute (2), which reads as follows:

"14. 14 fdlh egkfo|ky; dh n'kk] tks
fo'ofo|ky; ls lEc) gks] izkpk;Z ds in ds fy;s U;wure
vgZrk;sa fuEufyf[kr gksaxh&
LukrdksRrj egkfo|ky; ds fy,&
1⁄4d1⁄2 egkfo|ky;ksa esa izk/;kfir fdlh fo"k; esa izFke Js.kh ;k
mPp f}rh; Js.kh esa 1⁄4vFkkZr vadksa ds iw.kZ;ksx ds 54 izfr'kr
ls vf/kd vadksa lfgr1⁄2 LukrdksRrj mikf/k ;k ml fo"k; esa
fdlh fons'kh fo'ofo|ky; dh led{k mikf/k lfgr
vfofPNUu mRre 'kSf{k.kd vfHkys[k vFkkZr vH;FkhZ ds f'k{kk
dky esa vk|ksikUr lHkh ewY;kadksa dk lEiw.kZ vfHkys[k vkSj
1⁄4[k1⁄2 egkfo|ky; esa izk/;kfir fdlh ,d fo"k; esa MkDVjsV
dh mikf/k vkSj LukrdksRrj d{kkvksa ds v/;kiu dk 7 o"kZ
dk vuqHko ;k fdlh mikf/k egkfo|ky; esa izkpk;Z ds in dk
5 o"kZ dk vuqHko&
272 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ijUrq ;fn fdlh vH;FkhZ dks LukrdksRrj d{kkvksa ds
v/;kiu dk 10 o"kZ dk vuqHko ;k fdlh mikf/k d{kkvks ds
v/;kiu dk 20 o"kZ dk ;k mlls vf/kd dk vuqHko ;k
fdlh egkfo|ky; ds izkpk;Z ds in dk 7 o"kZ dk vuqHko gS
;k fdlh LukrdksRrj egkfo|ky; dk 5 o"kZ ;k mlls vf/kd
le; ls LFkkbZ izkpk;Z gS ;k jgk gS] rks p;u lfefr MkDVjsV
dh mikf/k dh mis{kk dks f'kfFky dj ldrh gS&
ijUrq ;g vkSj fd ;fn p;u lfefr dk ;g fopkj
gks fd fdlh vH;FkhZ dk vuqla/kku dk;Z tSlk fd tks mlds
'kks/k fucU/k ;k mldh izdkf'kr jpuk ls lqLi"V gks]
vR;f/kd mPpLrj dk gS] rks og mi[k.M 1⁄4d1⁄2 esa fofgr
fdlh vgZrk dks f'kfFky dj ldrh gSA"

17. In view of the aforesaid statutory
provisions, we have no hesitation to
record that no person can be appointed on
the post of Principal in an affiliated
degree college, unless he is possessed .of
the prescribed minimum qualifications on
the post in question. The appointment
may be officiating/ adhoc or regular.
Possession of the minimum essential
qualifications for the post prescribed by
Statutes is a condition precedent for any
valid appointment. It is immaterial that
appointment is regular or officiating as
contemplated by Statute 10.20. A person
not possessed of the prescribed minimum
essential
qualification
cannot
be
appointed on the post of Principal in any
capacity whatsoever. The conclusion so
drawn by us is supported by the following
judgements:

(a) Division Bench of this Court in the
case of Dr. Raghvendra Pratap Singh Vs.
Director
of
Higher
Education,
Allahabad & ors., reported in 1997 (2)
A.W.C. 2214 (NOC} i.e. Civil Misc. Writ
Petition No. 25259 of 1992 decided on
16th December, 1996, wherein with regard
to the issue of appointment on ad-hoc
lecturers in degree colleges affiliated to
Purvanchal University, has held that even
for
ad-hoc
appointment,
essential
minimum qualifications prescribed have
necessary
to be possessed by the
candidate
concerned,
otherwise
the
appointment would be void in view of the
provisions of the Commission Act, 1980.
We may clarify that although Section-15
has been deleted but the legal principal
stated
therein
qua
officiating/ad-hoc
appointment apply with full force.

(b) Division Bench Judgment of this
Court in the case of Shamshul Zama vs.
District Inspector of Schools, Chandauli
& ors. reported in (2001) 3 UPLBEC 218,
wherein with regard to the appointment
on the post of Officiating Principal in an
intermediate college governed by the
provisions of U.P. Intermediate Education
Act, 1921 and U.P. Secondary Education
Services Selection Board Act, 1982, same
principal has been stated.

18. Even otherwise it does appeal to
this Court that a person not possessed of
the
prescribed
qualification
can
be
permitted to discharge the duties on the
post of Principal of the institution, even if
for a period of three months. We therefore
record that a lecturer of degree college not
possessed of the prescribed minimum
qualification as provided for under the
Statutory Provisions of the First Statutes
of the University cannot be appointed as
officiating principal under Statute 10.20
of the First Statutes of the University.

19. In this legal background it is to
be examined as to whether Paras Nath
Chaubey is possessed of the prescribed
minimum
qualification
or not with
reference to Statute 14.14 (2) of the First
Statutes of the University. It is admitted
on record that Paras Nath Chaubey does
not satisfy the requirement of Clause-Ka
and Clause-Kha of the aforesaid First
1 All] Paras Nath Chaubey V. State of U.P. and others
273
Statutes, inasmuch as he does not have
minimum 54% marks at graduate level
nor he has good academic record. He also
does not satisfy the requirement of
Clause-Kha as he is not possessed of a
degree of Doctorate. Proviso to the
aforesaid Statutes, however, provides that
the essential minimum qualification can
be relaxed in a given set of facts.

20. Sri Ashok Khare, Senior
Advocate on behalf of Paras Nath
Chaubey submits that since the ViceChancellor of the University has approved
the appointment of Paras Nath Chaubey
for a. period of three months, it is to be
presumed that he has relaxed the
requirement of essential qualifications as -
per the proviso to the aforesaid Statute
10.20. He therefore, submits that the
appointment of Paras Nath Chaubey
cannot be said to be illegal and it cannot
be said that Paras Nath Chaubey is not
possessed of the prescribed minimum
qualification, senior-most teacher, he is
entitled to continue on the post of
Officiating Principal till the regular
selected candidate recommended by the
U.P. Higher Education Services Selection
Commission joins the post.

21. The contention so raised by Sri
Ashok Khare is opposed by Sri G.K.
Singh,
learned
counsel
for
Dr.
Ghanshyam Singh on following two
grounds:

(a) Proviso to Statute 10.20 will have
no
application,
so
far
as
the
ad·hoc/officiating
appointments
are
concerned, inasmuch as power to grant
relaxation
is
with
the
Selection
Committee to be constituted for regular
appointment. So far as the officiating
appointment is concerned, no Selection
Committee is required to be constituted
and therefore, in terms of the provisions,
no other person has any right to grant
relaxation
from
the
essential
qualifications,
(b) there is no order in writing of the
Vice-Chancellor
of
the
University
granting relaxation in favour of Paras
Nath
Chaubey
from
the
essential
qualifications.

22. After haring the parties on the
aforesaid issue, we are of the considered
opinion that the issue as to whether
relaxation
from
the
essential
qualifications can be granted in respect of
officiating appointment on the post of
Principal in terms of proviso to Statute
10.20 has not at all been examined by the
Vice-Chancellor of the University. We
may further record that the Hon'ble
Supreme Court of India in the case of
Nagendra Singh Chauhan vs. Hemwati
Nandan Behguna University, Sri Nagar
and ors., reported in 1998 (1) ESC 767,
has held that relaxation from the essential
qualifications
prescribed
under
the
Statutes can be granted by the Selection
Committee only under a specific order in
writing supported by reasons.

23. From the impugned order of the
Vice-Chancellor of the University, it is
apparently clear that there are no reasons
recorded qua the issue of prescribed
minimum
qualification
or
relaxation
thereto in favour of Paras Nath Chaubey.
The Vice-Chancellor of the University
has misdirect himself in recording that for
a period of three months Paras Nath
Chaubey can be permitted to continue as
Officiating Principa1 of the college, even
if he is not possessed of the degree of
B.Ed. The reason so recorded is based on
complete misreading of Statute 14.14 (2)
274 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
of the First Statutes of the Universities
framed under-the provisions of U.P. State
of Universities Act, 1973.

24.

In
the
totality
of
the
circumstances, as noticed herein above,
we have no hesitation to record that the
order
of
Vice-Chancellor
of
the
University dated 8th September, 2007 is
illegal and deserves to be quashed. It is
ordered accordingly.

25. Let the Vice-Chancellor of the
University
re-examine
the
dispute
between
the parties qua officiating
appointment on the post of Principal of
the college in terms of the observations
made by us herein above afresh after
affording opportunity of hearing to the
parties concerned, by means of a reasoned
speaking order, preferably within four
weeks from the date a certified copy of
this order is filed before him.

26.

With
the
aforesaid
observations/directions, both the writ
petition no. 59709 of 2007 and writ
petition no. 57894 of 2007 are disposed of
finally.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2008

BEFORE
THE HON'BLE B.A. ZAIDI, J.

Criminal Misc. Application No. 1399 of
2008

Manish

...Applicant
Versus
State of U.P. and another ...Respondents

Counsel for the Applicant:
Sri Raj Kumar
Counsel for the Opposite Parties:
Sri Mohammad Israil Siddiqui
A.G.A.

Code of Criminal Procedure-Section 482demand of local sureties-accused belong
to District Bulandshahr-Bail granted by
Session Judge Gautam Budh Nagar-heldorder
manifestly
callous
and
cruel
against in Moti Ram's case-order set a
side so for it concern to demand of local
sureties.

Held: Para 6

Even if, the aforesaid pronouncement of
the Supreme Court was not within the
knowledge of the learned Judge and was
not brought to his notice, the order is
manifestly callous and cruel. How will an
accused, who knows no one in a district,
where he is being prosecuted and
belongs to another district, would bring
local sureties. The amount of bail bond
also seems to be on higher side. This
order for demanding local sureties for an
amount of Rs.35,000/- each is set aside.
The learned Judge will rectify the order
accordingly.
Case law discussed:
AIR 1978 SC-1594 relied on.

(Delivered by Hon'ble B.A. Zaidi, J.)

1. In Case Crime No. 388/2007
under Sections 379, 411 I.P.C. Police
Station Sector-39 Noida district Gautam
Budh Nagar, bail was granted by Sessions
Judge (on 3.11.2007) and the accused
(applicant) was asked to furnish two local
sureties for a sum of 35,000/-.

2. The accused applied that he
belongs to Auraiya and it is difficult for
him to procure two local sureties and he
produced two sureties residents of district
Bulandshahr, which the Sessions Judge
declined to accept by order dated
15.11.2007 without giving any reason.