# State of U.P. & Ors v. Jai Prakash & Anr

- **Citation:** (2021) 6 ILRA 565
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-16
- **Bench:** Sanjay Yadav, C.J. Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-jai-prakash-anr-47131
- **Pages:** 9

## Headnote

A. Education/Service Law - Appointment -
U.P. Intermediate Education Act, 1921 -
Regulation 101 - U.P. High Schools And
Intermediate Colleges (Payment Of Salaries
Of Teachers And Other Employees) Act,
1971 - A single post of Class-III employee in
the institution (Intermediate College), could
only be filled up by promotion. In view of this,
it is only the claim of promotion which has to be
considered and not the claim of direct recruitment
which has been done by the learned Single Judge
in the present case. (Para 10, 11, 12)

B. It is well-settled that the powers in
writ jurisdiction should not be exercised
to set aside one illegal order to restore
another illegal order - The Regional Level
Committee while passing the order dated
05.10.2014 has not taken into consideration
the fact that the entire selection process of
petitioner/respondent has already been set
aside by this Court and has proceeded to
examine the claim of petitioner as the
petitioner/respondent
was
appointed
after
following the procedure prescribed under the
Act & Regulations framed there under. The
reason given in the order dated 05.12.2014,
which was impugned in the writ petition,
although are not tenable in law, but since the
selection process for the post of clerk was
quashed by this Court by order dated
21.9.2010, the order impugned in the present
appeal dated 3.3.2020 is not tenable and is
hereby set aside. (Para 16, 17)

The appointment of petitioner/respondent, if
allowed, will amount allowing a person to be
appointed without following procedure of law as
the
selection
process
of
the
petitioner/
respondent has already been quashed by this
Hon'ble Court. This is not permissible in exercise
of power conferred under Article 226 of the
Constitution of India. (Para 19)

Special Appeal allowed. (E-3)

Precedent followed:
566 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

6 All. State of U.P. & Ors. Vs. Jai Prakash & Anr.
565
proceedings or not. Whichever way it be,
the decision to take fresh proceedings or
not to do so, would ultimately rest with the
respondents.

27. In the result, this writ petition
succeeds and is allowed with costs. The
impugned order dated 16.07.2014 passed by
the Chief Manager, Punjab National Bank,
Circle Office, Pilibhit Bypass, Bareilly and
the appellate order dated 29.12.2014 passed
by the Circle Head/Appellate Authority,
Punjab National Bank, Circle Office, Pilibhit
Bypass, Bareilly are hereby quashed. The
respondents are ordered to forthwith reinstate
the petitioner in service and pay him current
salary regularly. In case, the respondents do
not elect to initiate fresh proceedings arising
out of first charge sheet, the consequential
benefits shall also become payable. However,
in case fresh proceedings are taken, the
consequential
monetary
benefits
would
depend
upon
the
outcome
of
those
proceedings.

28. Let this order be communicated to
the Chief Manager, Punjab National Bank,
Circle Office, Pilibhit Bypass, Bareilly and
the Circle Head/ Appellate Authority, Punjab
National Bank, Circle Office, Pilibhit Bypass,
Bareilly by the Joint Registrar (Compliance).
----------
(2021)06ILR A565
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.06.2021

BEFORE

THE HON'BLE SANJAY YADAV, C.J.
THE HON'BLE PRAKASH PADIA, J.

Special Appeal (D) 41 of 2021

State of U.P. & Ors. ...Appellants
Versus
Jai Prakash & Anr. ...Respondents
Counsel for the Appellants:
Sri Subhash Rathi

Counsel for the Respondents:
Sri Siddharth Khare

A. Education/Service Law - Appointment -
U.P. Intermediate Education Act, 1921 -
Regulation 101 - U.P. High Schools And
Intermediate Colleges (Payment Of Salaries
Of Teachers And Other Employees) Act,
1971 - A single post of Class-III employee in
the institution (Intermediate College), could
only be filled up by promotion. In view of this,
it is only the claim of promotion which has to be
considered and not the claim of direct recruitment
which has been done by the learned Single Judge
in the present case. (Para 10, 11, 12)

B. It is well-settled that the powers in
writ jurisdiction should not be exercised
to set aside one illegal order to restore
another illegal order - The Regional Level
Committee while passing the order dated
05.10.2014 has not taken into consideration
the fact that the entire selection process of
petitioner/respondent has already been set
aside by this Court and has proceeded to
examine the claim of petitioner as the
petitioner/respondent
was
appointed
after
following the procedure prescribed under the
Act & Regulations framed there under. The
reason given in the order dated 05.12.2014,
which was impugned in the writ petition,
although are not tenable in law, but since the
selection process for the post of clerk was
quashed by this Court by order dated
21.9.2010, the order impugned in the present
appeal dated 3.3.2020 is not tenable and is
hereby set aside. (Para 16, 17)

The appointment of petitioner/respondent, if
allowed, will amount allowing a person to be
appointed without following procedure of law as
the
selection
process
of
the
petitioner/
respondent has already been quashed by this
Hon'ble Court. This is not permissible in exercise
of power conferred under Article 226 of the
Constitution of India. (Para 19)

Special Appeal allowed. (E-3)

Precedent followed:
566 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Jai Bhagwan Singh Vs District Inspector of
Schools, Gautam Budh Nagar & ors., (2006) 3
UPLBEC 2391 (Para 10, 13)

2. Ashok Kumar Pandey & ors. Vs Basic Shiksha
Adhikari, Mau & ors., 1992 (3) AWC 1389 (Para
17)

3.
Raghunath
Vs
Deputy
Director
of
Consolidation, 1998 (1) AWC 776 (Para 18)

Special Appeal against judgment and
order
dated
03.03.2020,
passed
by
learned Single Judge in Civil Misc. Writ
Petition 1228 of 2015.

(Delivered by Hon'ble Prakash Padia, J.)

1. The matter is taken up through
video conferencing.

2. Heard learned counsel for the
parties.

3. The present Special Appeal has
been
filed
by
the
appellant
State
challenging the judgement and order dated
03.03.2020 passed by the learned Single
Judge in Writ A No.1228 of 2015.

4. It appears from perusal of the
record that at Prem Puri Badagaon District
Kanpur Nagar, there is an educational
institution namely Jan Shikshan Inter
College (In short "Institution"). The said
Institution is governed by the U.P.
Intermediate Education Act, 1921 and U.P.
High Schools And Intermediate Colleges
(Payment Of Salaries Of Teachers And
Other Employees) Act, 1971 (hereinafter
referred to as "Act, 1921 and Act, 1971"
respectively). The Institution in question
received grant in aid upto High School
level. In the Institution in question, there is
only one sanctioned post of clerk which
was held by one Raj Kumar Uttam. He
retired from service after attaining the age
of superannuation on 30.05.2006. In the
Institution in question, there is huge
strength of the students and in order to
discharge the proper work as well for
disposal disposal of official work, certain
computers were purchased by the Colleges
Authorities. In order to fill up the post of
clerk, a decision was taken by the
Management to fill up the aforesaid post by
way of direct recruitment by a person
having full knowledge of operation of
computer. In this regard an application was
submitted by the Institution before the
District Inspector of Schools (In short
"D.I.O.S.) for grant of permission in order
to fill up the aforesaid post by direct
recruitment. The permission was granted
by the D.I.O.S. vide its order dated
19.10.2007.
Pursuant
to
the
same,
advertisement was published in two daily
newspapers namely Swatantra Bharat and
Times
of
India
on
24.10.2007
and
27.10.2007 respectively. Pursuant to the
aforesaid advertisement, the petitionerrespondent as well as various other
candidates applied for the aforesaid post.
The petitioner-respondent was found most
suitable
candidates
by
the
Selection
Committee. Subsequently, the papers of
petitioner-respondent
were
transmitted
before the D.I.O.S. for obtaining prior
approval which is mandatory requirement
as per Regulation 101 contained in Chapter
III of the Act, 1921.

5. Before the aforesaid approval
granted, one Narendra Singh, Class IV
employee
preferred
Writ
Petition
No.57689 of 2007. In the aforesaid writ
petition, interim order was granted by the
learned
Single
Judge.
Since
the
petitioner-respondent
was
not
implemented
in
the
aforesaid
writ
petition, he filed an application for his
impleadment which was allowed. Apart
6 All. State of U.P. & Ors. Vs. Jai Prakash & Anr.
567
from the petitioner-respondent, another
class IV employee namely Virendra
Kumar also filed impleadment which was
also allowed. After hearing counsel for
the parties, the learned Single Judge
allowed the writ petition filed by one
Narendra Singh vide its judgment and
order dated 21.09.2010. The learned
Single Judge was pleased to cancel the
advertisement
dated
24.10.2007
and
27.10.2007 as well as consequential
action
as
has
been
taken
by
the
Committee of Management for Direct
Appointment of Class III employee and
the appointment of petitioner-respondent.
Further directions were given to the
Regional Level Committee headed by
Regional Joint Director of Education to
examine the claim of Narendra Singh as
well as respondent no.6 (Virendara
Kumar)
and
other
candidates.
The
aforesaid order is reproduced below:-

"Heard Sri Alok Dwivedi learned
counsel
for
the
petitioner,
learned
Standing Counsel for the respondents no.
1, 2 and 3, Sri Arun Kumar Tiwari for the
respondent no. 4, Sri R.K. Ojha for the
newly impleaded respondent no. 5 and Sri
Agnihotri holding brief of Sri Neeraj
Kumar Pandey for the newly impleaded
respondent no. 6 Virendra Kumar.

This writ petition questions the
selections on the solitary sanctioned post
of clerk in Jan Shikshan Intermediate
College Prempur, Badagaon, District
Kanpur Nagar.

The petitioner claims promotion on
the said post being a Class IV employee
under the provisions of Chapter II
Regulation 2 of the Regulations framed
under the U.P. Intermediate Education
Act 1921. The committee of management
has proceeded to select the respondent
no. 5 by direct recruitment under the
impugned
advertisement
dated
24.10.2007 /27.10.2007.

The respondent no. 6 Virendra Kumar
has come up with a prayer that he is the
senior most of the institution and therefore
he should be promoted and even otherwise
the claim of the petitioner deserves to be
rejected.

Affidavits
have
been
exchanged
between the parties and the learned
Standing Counsel has also filed a counter
affidavit on behalf of the State respondent.

The submission raised is that the
impugned action of the committee is in
violation of the provisions of Chapter II
Regulation 2 coupled with the decision of
this Court in the case of Jai Bhagwan
Singh Vs. District Inspector of Schools,
Gautam Budh Nagar and others, reported
in 2006 (3) U.P.L.B.E.C. Pg. 2391. In
essence the contention is that it there is a
solitary post which should be filled up by
way of promotion and it cannot be filled by
way of direct recruitment.

The second submission of Sri Dwivedi
is that the committee of management has
illegally refused to consider the claim of
promotion of the petitioner inspite of the
fact that the petitioner is duly qualified and
further the respondent no. 6 Virendra
Kumar who is senior to the petitioner has
already refused to claim promotion.

The respondents have taken a stand
that the selections have been held in
accordance with the regulations and
further the same is pending approval
before the District Inspector of Schools.
They submit that the claim of the petitioner
even otherwise cannot be considered
inasmuch as the petitioner is not the senior
most Class IV employee entitled for
promotion.

The aforesaid issue need not detain
this
court
inasmuch
as
under
the
Government Order dated 19.12.2000 the
568 INDIAN LAW REPORTS ALLAHABAD SERIES
Regional Level Committee headed by the
respondent no. 2 has to examine such
claims and process the appointments
keeping
in
view
the
provisions
of
Regulations 101 to 107 of Chapter III of
the regulations framed under the U.P.
Intermediate Education Act 1921. The
claim of promotion on the post in question
by the petitioner and also of the respondent
no. 6 will therefore have to be examined
before approval is granted to the selections
held by the committee of management in
favour of the respondent no. 5.

It is however to be noted that so far as
the position of law is concerned the
decision in the case of Jai Bhagwan Singh
holds the field clearly laying down that if
there is a single post of Class III in the
Institution it has to be filled up by way of
promotion. In view of this, it is only the
claim of promotion which has to be
considered and not the claim of direct
recruitment.

So far as the inter-se claim between
the petitioner and respondent no. 6 is
concerned the issue as to whether the
respondent no. 6 had refused to accept
promotion or not will still have to be
examined
by
the
Regional
Level
Committee.

Accordingly, the advertisement dated
24th October 2003 and all consequential
action
taken
by
the
committee
of
management
for
the
selection
and
appointment of the respondent no. 5 being
in teeth of judgment in the case of Jai
Bhagwan Singh (supra) is hereby quashed
and Regional Level Committee headed by
respondent no. 2 shall now proceed to
examine the claim of the petitioner and
the respondent no. 6 after calling for
comments
from
the
committee
of
management and the District Inspector of
Schools as expeditiously as possible but
not later than eight weeks from the date of
presentation of a certified copy of this
order before the said authority.

Partly allowed."

6. Pursuant to the same, matter was
placed
before
the
Regional
Level
Committee. It is submitted in paragraph 15
of the writ petition that all class IV
employees of the writ petition submitted
their notorial affidavits by which they
submitted
their
unwillingness
for
promotion on the post of clerk.

7. The Regional Level Committee
after hearing all the parties concerned
rejected the claim set up by the petitionerrespondent vide its order dated 21.5.2013.
Aggrieved against the aforesaid order as
well as the order dated 21.09.2010 passed
by the learned Single Judge in Writ Petition
No.57689
of
2007,
Special
Appeal
(Defective) No.1207 of 2011 was preferred
by the petitioner-respondent. The aforesaid
appeal was dismissed by the Co-ordinate
Bench of this Court vide its judgement and
order dated 27.3.2014 while dismissing the
writ petition direction was given that any
person aggrieved by the order of Regional
Level Committee dated 21.05.2013, he can
file a separate writ petition challenging the
same. The order dated 27.03.2014 is
reproduced below:-

"1. We have heard Sri Vinod Kumar
Singh for the appellant. Learned standing
counsel appears for State respondents. Sri
Alok Dwivedi appears for respondent No.6
- the petitioner in the writ petition.

2. The appeal is reported to be beyond
time by one year and 48 days. Learned
counsel
appearing
for
petitionerrespondent and learned standing counsel
have no objection in condoning the delay.
The grounds for condonation of delay are
good
and
sufficient.
The
delay
is
6 All. State of U.P. & Ors. Vs. Jai Prakash & Anr.
569
accordingly condoned, and the appeal was
heard.

3. The appellant was selected by the
Committee of Management of Jan Shiksha
Intermediate College, Prempur, Badagaon,
District Kanpur Nagar for appointment on
a vacant Class III post.

4. Sri Nagendra Singh - the petitioner,
who was serving as a Class IV employee in
the institution, had filed a Writ Petition No.
57689 of 2007, in which a direction was
given to the Regional Level Committee
headed by Joint Director of Education, to
examine the claim of petitioner Sri
Nagendra Singh and Sri Virendra Kumar -
the respondent No.6 in the writ petition,
another class-IV employee for promotion,
in the light of judgment of the Court in Jai
Bhawan Singh Vs. District Inspector of
Schools, Gautam Budh Nagar and others
[2006 (3) UPLBEC 2391], in which it was
held that if there is a single post of Class
III in the institution, it has to be filled up by
way of promotion, and not by direct
recruitment.

5. The Joint Director considered the
matter of promotion, and by his order
dated 21.05.2013, in pursuance to the
directions
issued
by
the
Court
on
21.09.2010, decided the representation
directing promotion of Sri Nagendra Singh
- the petitioner in Writ Petition No. 57689
of 2007, on the vacant class-III post.

4. Learned counsel appearing for the
appellant states that the observation of the
learned Single Judge in the judgment dated
21.09.2010, that the single post of Clerk
could be filled by promotion of Class IV
employee is not correct in law. All the
class-IV employees who were eligible to be
considered for promotion refused to be
promoted by giving undertaking on notary
affidavit, and in the circumstances the
Regional
Level
Committee
was
also
required to consider the appointment of
appellant.

5. This Special Appeal is directed
against order dated 21.09.2010, by which
the Joint Director was required to consider
the representation of petitioner - Sri
Nagendra Singh in accordance with
decision of the Court in Jai Bhagwan
Singh. Learned Single Judge has not
decided the rights of the petitioner. If the
right of any aggrieved person has been
affected by the order of the Regional Level
Committee dated 21.05.2013, they can file
a separate writ petition challenging the
orders, and in which they may raise all the
grounds, which are available to them in
accordance with law.

6. The Special Appeal is dismissed."

8. Pursuant to the aforesaid, another
writ petition was filed by the petitionerrespondent being Writ A No.23371 of
2014. After hearing learned counsel for the
parties, learned Single of this Court was
pleased to dispose of the writ petition vide
order dated 28.04.2014 directing the
Regional Level Committee to consider the
case of the petitioner also for approval the
selection against Class III post. It is
important to note here that while giving the
aforesaid directions, the earlier order
passed by the Regional Level Committee
dated 25.1.2013 was not interfered. The
order dated 28.4.2014 passed in the
aforesaid writ petition is reproduced
below:-

"Heard learned counsel for the
petitioner, learned Standing Counsel for
the respondent nos.1, 2 & 3, Sri Arvind
Upadhyay, learned counsel representing
Committee of Management (respondent
no.4) and Sri Alok Dwivedi, learned
counsel representing respondent nos.5 to 8
570 INDIAN LAW REPORTS ALLAHABAD SERIES
who are class IV employees in the
institution in question.

Jan Shiksha Inter College, Frempur
Badagaon, district Kanpur Nagar is a
recognised and aided institution up to
Intermediate. There is one post of clerk in the
institution and there are four Class IV
employees working in the institution. The
Committee of Management appointed the
petitioner by way of direct recruitment as
clerk. Initially two of the Class IV employees
objected to the Selection of the petitioner on
the ground that single post of clerk is to be
filled up by way of promotion. The matter
came up before this Court and was remitted
to the Regional Level Committee for taking
appropriate decision with regard to the two
candidates viz Nagendra Singh, respondent
no.5 and Birendra Kumar, respondent no.6
regarding their seniority and further claim
for promotion to the post of Assistant Clerk.
Before Regional Level Committee all the four
Class IV employees working in the institution
filed their affidavits stating that they were not
interested for being promoted to the post of
Assistant Clerk which ultimately would result
into the filling up of the said post by way of
direct recruitment and for consideration of
the claim of the petitioner. The Regional
Level Committee after considering their
respective
claims
vide
order
dated
21.05.2013 has recorded that all the Class IV
employees have relinquished their claim for
promotion
including
two
contesting
candidates i.e. Narendra Singh and Birendra
Kumar. It further records that as the
direction of the High Court was only to
consider the claim of the contesting Class IV
employees it would not be in a position to
consider the claim of the petitioner for being
approved on the post of Assistant Clerk
pursuant to the selection made by the
Committee of Management. In the meantime
against the order of the learned Single Judge
directing the Regional Level Committee to
take a decision the petitioner had filed an
intra Court appeal being Special Appeal
Defective No.1207 of 2011. During the
pendency of the appeal the Regional Level
Committee
passed
the
order
dated
21.05.2013. The Division Bench while
deciding the aforementioned intra Court
appeal filed by the petitioner has granted
liberty to the petitioner to file separate writ
petition challenging the order of the Regional
Level Committee. As such the present petition
has been filed.

The relief prayed for by means to this
petition is that the order dated 21.05.2013
passed by the Regional Level Committee be
quashed and further direction be issued to the
Regional Level Committee to consider the
claim of the petitioner for its approval on the
post of Assistant Clerk in accordance with
law.

Learned counsel for the Committee of
Management Sri Arvind Upadhyay and the
learned counsel for the Class IV employees
Sri Alok Dwivedi have submitted that they
have no objection if such a direction be
issued.

In the opinion of the Court it is not
necessary to quash the order dated
21.05.2013 but appropriate direction can
be issued to the Regional Level Committee
to consider the claim of the petitioner for
approval on the selection against Class III
posts duly made by the Committee of
Management.

Accordingly this petition is disposed of
with a direction to the Regional Level
Committee to take an appropriate decision
in the aforesaid matter in accordance with
law within a period of two months from the
date of production of certified copy of this
order."

9. Pursuant to the aforesaid order,
matter was again placed before the
Regional
Level
Committee
and
the
6 All. State of U.P. & Ors. Vs. Jai Prakash & Anr.
571
Regional Level Committee again rejected
the claim set up by the petitionerrespondent vide its order dated 05.12.2014.
Aggrieved with the aforesaid order, the
petitioner-respondent filed Writ Petition
with the prayer to set aside the order dated
05.12.2014 passed by the Regional Level
Committee with a further prayer to direct
the
Regional
Level
Committee
to
reconsider the claim of the petitionerrespondent and pass appropriate orders.
The aforesaid writ petition filed by the
petitioner-respondent was allowed by the
learned Single Judge vide its judgment and
order dated 03.03.2020. Aggrieved against
the aforesaid order, the State-appellant filed
the present Special Appeal before this
Court.

10. It is argued by learned Standing
Counsel appearing on behalf of the
appellant that the advertisements issued
by
the
Institution
as
well
as
all
consequential
actions
taken
by
the
Committee of Management for selection
and appointment of petitioner-respondent
was quashed by this Court. It is further
argued that the aforesaid findings were
not set aside in the Special Appeal filed
by the petitioner-respondent and this
aspect of the matter was not considered
by the learned Single while passing the
impugned
order
in
Writ
Petition,
therefore, no relief could be granted to
the petitioner-respondent. It is further
argued that in view of the law laid by this
Court in the case of Jai Bhagwan Singh
v.
District
Inspector
of
Schools,
Gautambudh Nagar and others, (2006) 3
UPLBEC 2391, a single post of Class-III
employee in the institution, could only be
filled up by promotion. In view of this,it
is only the claim of promotion which has
to be considered and not the claim of
direct recruitment which has been done
by the learned Single Judge in the present
case. It is argued that in Jai Bhagwan
Singh (supra) case, following question
was placed before the Larger Bench by
the
learned
Singh
Judge
for
consideration:-

"Whether a single post of Class III
available in the Intermediate College
governed by the 1921 Act can be filled by
way of promotion and whether the case of
Palak Dhari Yadav, reported in (1999) 3
UPLBEC
2315, has been
correctly
decided keeping in view the opinion
expressed by another Single Judge in
Writ petition No.4165 of 2004 as also the
pronouncement of the Apex Court in the
cae of B. Badami Vs. State of Mysore and
All India Fedration V. Union of India."

11. The aforesaid question has been
answered by a Division Bench, as under:

"19. In view of the foregoing
discussions, we answer the reference in
the following words.

(i) A single post of Class III
available in an Intermediate college
governed by 1921 Act can be filled up by
way of promotion, and the case of Palak
Dhari Yadav (supra) has not been
correctly decided.

12. From the aforesaid law laid
down by Coordinate Bench of this Court
it is clear that the single post of Class III
employee in Intermediate College has to
filled up by promotion.

13. This Court, while deciding the
writ petition no. 57896 of 2007 has
quashed
the
advertisement
dated
24.10.2003 and all the consequential action
taken by the Committee of Management for
572 INDIAN LAW REPORTS ALLAHABAD SERIES
selection and appointment of petitioner/
respondent being in teeth of the judgment
in case of Jai Bhawan Singh.

14. The aforesaid judgment of this
Court dated 21.9.2010 passed in Writ
Petition No. 57869 of 2007 has not been set
aside in any subsequent proceedings
including special appeal (defective) no.
1207
of
2011
filed
by
the
petitioner/respondent.

15. Once the advertisement and all the
consequential actions were quashed by this
Court, there was no lawful process of
selection of petitioner/respondent. The
entire
appointment
process
of
petitioner/respondent was set aside by this
Court, thus in absence of lawful selection
process, the order impugned in the special
appeal is not tenable in law and is liable to
be set aside.

16. Although the Regional Level
Committee while passing the order dated
5.10.2014 has not taken into consideration
the fact that the entire selection process of
petitioner/respondent has already been set
aside by this Court and has proceeded to
examine the claim of petitioner as the
petitioner/respondent was appointed after
following the procedure prescribed under
the Act & Regulations framed there under.
The reason given in the order dated
5.12.2014, which was impugned in the writ
petition, although are not tenable in law,
but since the selection process for the post
of clerk was quashed by this Court by order
dated 21.9.2010, the order impugned in the
present appeal dated 3.3.2020 is not tenable
and is hereby set aside.

17. It is well settled that the powers in
writ jurisdiction should not be exercised to
set aside one illegal order to restore another
illegal order, as has been held by Division
Bench of this Court in the case of Ashok
Kumar Pandey and others Vs. Basic
Shiksha Adhikari, Mau and others,
reported in 1992 (3) AWC 1389. The Court
has held as under:

"14. As regards the last contention of
Mr. Singh that before the impugned order
was passed, the Appellants were not given
an opportunity of being heard, it must be
said that, in the facts of the instant case, it
has no sub-stance. It has already been
found that the concerned Appellants were
not appointed as teachers. They were
therefore not being deprived of any right,
for which they were entiled to a prior
opportunity of being heard. We hasten to
add that even if we had found that they
were entitled to such an opportunity and
failure on the part of the Adhikari to
provide them with the same made the order
under challenge bad, we would not have
been justified in quasffing the same for that
would have amounted to putting premium
upon and giving judicial imprimatur to
another wrong, namely, conferment of a
right upon certain persons who were not
entitled to it. To put it differently, powers in
writ jurisdiction should not be exercised to
set aside one illegal order to restore
another illegal order. In making these
observations, we have drawn sustenance
from the Division Bench judgment of this
Court in the case of S.K.J.P.K. Inter
College v. District Inspector of Schools
1988 UP LB EC 739."

18. This Court further in case of
Raghunath
Vs.
Deputy
Director
of
Consolidation, reported in 1998 (1) AWC
776 has held as under:

"13. In its decision in the case of
Ashok Kumar Pandey and others D. Basic
6 All. Shiv Shankar Vs. State of U.P. & Ors.
573
Shiksha Adhikari, Mau and others. Special
Appeal No. 127 of 1992, decided on
22.4.1992. a Division Bench of this Court
had observed that powers in writ jurisdiction
should not be exercised to set aside one
illegal order to restore another illegal order
reiterating the view of another Division
Bench of this Court in its decision in the case
of SKJPK Inter College v. District Inspector
of Schools 1988 U.P.L.B.E.C. 739. pointing
out that quashing of an order which
amounted to putting premium upon and
giving Judicial imprimatur to another wrong,
namely conferment of a right upon certain
persons who were not entitled to it cannot be
justified.

19.

The
appointment
of
petitioner/respondent, if allowed, will amount
allowing a person to be appointed without
following procedure of law as the selection
process of the petitioner /respondent has
already been quashed by this Hon'ble Court.
This is not permissible in exercise of power
conferred
under
Article
226
of
the
Constitution of India.

20. In view of the above discussions,
the order of learned Single Judge dated
3.3.2020 passed in Writ-A No. 1228 of 2015
(Jai Prakash Uttam Vs. State of U.P. &
others) is set aside.

21. Consequently, the special appeal is
allowed.
----------
(2021)06ILR A573
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.06.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ -A No. 8385 of 2020
Along with
Writ -A No. 18664 of 2019

Shiv Shankar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjeev Singh, Sri Ghan Shyam Yadav

Counsel for the Respondents:
C.S.C.

A. Service Law - Regularisation and
payment
of
minimum
wages
-
U.P.
Regularization of Persons Working on
Daily Wages or on Work Charge or on
Contract in Government Departments on
Group 'C' and Group 'D' Posts (Outside the
Purview of the Uttar Pradesh Public
Service Commission) Rules, 2016 - Rules
5, 6, 8, & 10 - U.P. Regularization of Daily
Wages Appointment on Group 'D' Posts
Rules, 2001 - Rule 4(1).

Requirement of eligibility list - Rule 6(4) -
The eligibility list as contemplated under Rule
6(4) had to be prepared having regard to the
provisions of Rule 6(1) which provides two cutoff dates. The first date is of initial engagement
which is on or before 31.12.2001, and the
second is of working or engagement or
employment on 12.9.2016, the date of the
commencement of the Rules. (Para 17)

Exercise of regularisation as per the
procedure in the Rules' 2016 has not been
completed in the department. The claim of
the petitioner on individual basis had been
considered under the directions of this Court.
Whereas, the exercise of regularisation was
required to be undertaken by the Department
on its own and there was no requirement of
making individual claim by
one or two
employee(s). The record does not reflect that
any eligibility list had been prepared by the
appointing authority in terms of Rule 6(4) in
order of the seniority of all daily wage
employees
working
on
the
date
of
commencement of the Rules i.e. 12.9.2016 for
consideration of their candidature for regular
appointment on the permanent or temporary
vacancies available either on the date of