# State of U.P. and others v. Vinod Kumar Chand and others

- **Citation:** (2003) 2 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-02
- **Case number:** Special Appeal No. 36 of 2000
- **Bench:** Tarun Chatterjee, C.J. R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-vinod-kumar-chand-and-others-39469
- **Pages:** 4

## Headnote

Constitution of India Article 226- selection
of the Candidate for B.T.C. training- vacancy
advertised on 8.3.98 providing 3 marks
extra
under
sport
Quota.
CandidateSubsequent G.O. dated 24.02.99 providing
5 marks under sport Quota, apart from
qualifying marks-held- not illegal-selection
can not be questioned.

Held- Para 7

Thus, the contention that the Government
order dated 24.2.99 would not apply to the
candidates who had applied pursuant to the
advertisement
dated
8.3.1998
is
misconceived and cannot be accepted.

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
290
Judge, Ballia. The suit under section 92
C.P.C. can be filed with prior permission
of the court or the Advocate General.
There was no such permission. The suit
can be filed in the Principal Civil Court of
original jurisdiction. The suit was filed in
the court of Munsif for declaration and
injunction. In such a suit an scheme for
the management can not be prepared by
the Court. There is no inherent powers
under section 151 C.P.C. to prepare the
scheme of management of a math. The
same can be prepared in the suit under
section 92 C.P.C. by the Principle Civil
Court or by the District Judge under the
provisions of the Indian Trusts Act.
Therefore, the right of management given
to the plaintiff by the first appellate court
is against law and totally without
jurisdiction and the same can not be
maintained.

15. Before parting this appeal, it
may also be mentioned that from the oral
evidence recorded in this case it appears
that the plaintiffs never managed the
math.
The
plaintiff
examined
Ramchander, PW-1, who in his statement
has said that no meeting of the alleged
management committee ever took place.
He further stated that the trust was never
managed by the plaintiffs but was being
managed by Gorakh Giri, defendant. That
no account of the properties were ever
maintained. Therefore, from the statement
of the Ram Chander, PW-1 itself it
appears
that
the
alleged
allegation
regarding the appointment is false.

16. Accordingly, this appeal is
allowed with costs throughout. The
judgment and decree of the first appellate
court is set a side and that of the trial
court is restored.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 2ND MAY, 2003

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 36 of 2000

State of U.P. and others
...Appellants
Versus
Vinod Kumar Chand and others

 ...Respondents

Counsel for the Appellants:
Sri Ran Vijay Singh

Counsel for the Respondents:
Sri Ashok Khare
Sri A.K. Mishra

Constitution of India Article 226- selection
of the Candidate for B.T.C. training- vacancy
advertised on 8.3.98 providing 3 marks
extra
under
sport
Quota.
CandidateSubsequent G.O. dated 24.02.99 providing
5 marks under sport Quota, apart from
qualifying marks-held- not illegal-selection
can not be questioned.

Held- Para 7

Thus, the contention that the Government
order dated 24.2.99 would not apply to the
candidates who had applied pursuant to the
advertisement
dated
8.3.1998
is
misconceived and cannot be accepted.

(Delivered by Hon'ble R.K. Agarwal, J.)

The present Special Appeal has been
filed against the judgment and order dated
18.11.1999 passed by the learned single
Judge, whereby the writ petition filed by the
respondents- writ petitioners, has been
allowed and the order dated 11.5.1999
passed by the Principal, District Institute of
http://www.allahabadhighcourt.nic.in
2 All] State of U.P. and others V. Vinod Kumar Chand and others
291
Education
and
Training,
Didihat
Pithauragarh, has been quashed.

Briefly stated that facts giving rise to
the present special Appeal are that all the
respondents (writ petitioners) herein, claimed
themselves to be sports men having
participated in the State Level Sports, except
the respondents- writ petitioner no. 2 who
participated in National Level Sports. The
State Government issued an order on
9.1.1998 providing for Special B.T.C.
Training to be imparted to those candidates
who possessed training qualification of
Bachelor of Education and otherequivalent
qualifications for appointment as Assistant
Teacher in Basic Schools run by the Board of
Basic Education U.P. In the said order it was
provided that those candidates who are sports
men at the State Level would be entitled to
additional 3 marks whereas those candidates
who are sports men of National level would
be entitled to additional 5 marks. The quality
point marks was to be determined on the
basis of educational qualification and
weightage to various categories provided in
the said order. An advertisement was also
issued on 8.3.1998 in terms of the
Government order dated 9.1.1998 by the
Director, state Council for Educational
Research
and
Training
inviting
the
application for special B.T.C. Training. The
last date for making application was
30.3.1998.
All
the
respondent-
writ
petitioners applied in pursuance of the said
advertisement. A select list was prepared on
21.4.1999 which included the names of the
respondent (writ petitioners). They reported
on 1.5.1999 to the District Institute of
Education and Training, Didihat Pithoragarh
and were granted admission. According to
them, they attended the course till 11.5.1999.
However, the Principal, District Institute of
Education and Training, didihat Pithoragarh,
cancelled their candidature on the ground
that the weightage granted to them on
account of being sports persons was contrary
to the Government order dated 24.2.1999
which provided for giving additional marks
to a sports person who had won any prize at
the state level Tournament or National level
Tournament and since the respondents (writ
petitioners) had not won any such prize and
merely participating at the state level or
National Level Tournament would not make
them eligible and entitled to weightage of
additional 3 or 5 marks respectively as the
case may be. The order dated 11.5.1999 was
challenged
by
the
respondents
(writ
petitioners)
invoking
extraordinary
jurisdiction of this Court under Article 226 of
the Constitution of India by filing Writ
Petition which had been allowed by the
learned Single Judge vide judgement and
order dated 18.11.1999.

We have heard Sri Ran Vijay Singh
learned Standing counsel for the Appellants
and Sri Ashok Khare learned Senior Counsel
for the respondents (writ petitioners).

The
learned
Standing
Counsel
submitted that in view of the Government
order dated 24.2.1999 which provided for the
criteria of giving additional marks to sports
persons of State level or National level, the
respondents (writ petitioner) were not
entitled for additional marks and if additional
marks which were awarded to them was
excluded then they were not entitled for
admission in Special B.T.C. Course. He
further submitted that by the Government
order dated 24/2/1999 the only criteria for
making a person eligible for awarding
additional marks as State level sports men or
National level sports men had been clarified
and does not take away any vested right.
According to him no written examination
was held and the merit list had been prepared
on the basis of quality points marks obtained
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
292
by the candidates according to their
qualification. The weightage on account of
sports persons cannot be claimed as a matter
of right. Thus, the learned Single Judge was
not justified in quashing the order dated
11.5.1999.

Sri Ashok Khare learned Senior
Counsel, however, submitted that the
respondents (writ petitioners) had applied on
the basis of Government order dated
9.1.1998 and the advertisement dated
8.3.1998
which
provided
for
giving
additional marks to sports persons of State
level and National level. Neither the
Government order dated 9.1.1998 nor the
advertisement dated 8.3.1998 stipulated any
condition whatsoever that the sports persons
of State level or National level should have
also won prize in the State level Tournament
or National level Tournament. He thus,
submitted
that
the
State
Government
subsequently cannot apply changed criteria
for awarding additional marks to sports
persons. He further submitted that the
selection has to be made on the basis of
criteria given in the advertisement dated
8.3.1998. According to him the Government
order
dated
24.2.1999
would
apply
prospectively and cannot be applied to the
advertisement dated 8.3.1998. He further
submitted that first list of selected candidate
was published in February 1999 and
additional marks to sports person to State
level and National level has been given to the
candidates applying the Government order
dated 9.1.1998 and if the said Government
order dated 24.2.1999 is applied to the
selected list published in April 1999, then it
would amount to hostile discrimination and
hit by Article 14 of the constitution of India.

Having heard the learned counsel for
the parties, we find that in the Government
order dated 9.1.1998, it was provided that 5
marks would be given for sports etc. Clause
Ga of the said Government order dealing
with the award of 5 additional marks to the
sports etc. read as follows:

"1⁄4x1⁄2 [ksy dwn vkfn ds vk/kkj ij ik¡p vad fuEu izdkj
fn;s tk;saxs A
1⁄411⁄2 ;fn vH;FkhZ jk"Vah; Lrj dk f[kykM+h gS rks 5 vad
ns; gksaxs A
1⁄421⁄2 ;fn vH;FkhZ izns'k Lrj dk f[kykM+h gS rks 3 vad ns;
gksaxs A
1⁄431⁄2 ,u0lh0lh0 ds ßlhÞ izek.k i= /kkjd vH;FkhZ dks
5 vad ns; gksaxs A
1⁄441⁄2 ,u0lh0lh0 ds ßchÞ izek.k i= /kkjd vH;FkhZ dks
3 vad ns; gksaxs A

mDr izek.k i=ksa ds vk/kkj ij vf/kdre 5 vad gh
ns; gksaxs Hkys gh vH;FkhZ us ,d ls vf/kd izek.k i= izkIr
fn, gksaAÞ

From a reading of the aforesaid clause,
it is seen that it only provides for awarding of
5 additional marks to National level sports
person and 3 marks of the State level sports
person but who would be of National level or
State level has not been defined. Vide
Government order dated 24.2.1999, the state
Government has clarified that for the purpose
of giving additional marks to sports person in
Special B.T.C. Training Course, only those
sports person would be eligible who have
won any prize in State level/National level
Tournament. It is to be borne in mind that the
candidates were to be admitted on the basis
of their qualification and interview. No
written examination was held. The select list
in which the name of the respondents (writ
petitioners) has been included was published
in April 1999 after the Government order
dated 24.2.1999 had been issued. In the
earlier Government order dated 9.1.1999 and
the advertisement issued pursuant thereto, it
was not specified as to who would be
considered as National/State Level sports
man. It was clarified only by the Government
http://www.allahabadhighcourt.nic.in
2 All] Anilesh Pratap Singh V. State of U.P. and others
293
order dated 24.2.1999. It has not affected any
vested right of the respondents- writ
petitioners as only criteria for awarding
additional marks to sports persons has been
clarified. Thus, the contention that the
Government order dated 24.2.1999 would
not apply to the candidates who had applied
pursuant to the advertisement dated 8.3.1998
is misconceived and cannot be accepted.

So far as the contention that the sports
person of state and National level whose
name find place in the select list of February
1999 without having won any prize in the
State/National
level
Tournament
is
concerned, it may be mentioned that the
respondents (writ petitioners) have not
brought any material on record to establish
the same. This was also not the ground of
challenge by the respondents (writ petitioner)
in their writ petition before this Court. Even
otherwise, in the absence of any such
material having been brought on record, we
are not in a position to hold that any
candidate has been selected in violation of
Government order dated 24.2.1999.

In view of foregoing discussions, we
are of the considered opinion that the
impugned order passed by the learned Single
Judge, quashing the order dated 11.5.1999
suffers from manifest legal infirmity and
cannot be sustained. It is accordingly, set
aside.

The Special Appeal is allowed.

However, the parties shall bear their
own costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 2.5.2002

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 223 of 1999

Anilesh Pratap Singh

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

Counsel for the Appellant:
Sri Anil Bhushan

Counsel for the Respondents:
Sri Ran Vijay Singh
S.C.

U.P.
Secondary
Education
Service
Commission
(Removal
of
Difficulties
order) 1981 Para 5- Adhoc appointment
on direct recruitment post- permanent
Principal retired on 30.6.91- vacancy
advertised by the Management on 4.7.91
in only one News Paper- appointment
made on 4.8.91- whether such appointee
is entitled for salary ? held "No".

U.P.
Secondary
Education
Service
Commission
(Removal
of
Difficulties
order 1981) - adhoc appointment by
direct recruitment post- whether the
provisions for appointment only after
expiry of the period of two months from
the date of advertisement the 4 vacancy
is mandatory on obligatory.

Held- Para 16

Applying the principles laid down in the
aforementioned cases, we are of the
considered opinion that the provisions of
section 18 of the 1982 Act is mandatory
and unless and until the period of two
months
expires
from
the
date
of
notifying the vacancy to the commission,
the committee of management does not