# State of U.P. & Ors v. The C/M Sri Durga Ji Purva Madhyamik Balika Jamin Rasoolpur, Azamgarh & Anr

- **Citation:** (2021) 9 ILRA 983
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** Special Appeal No. 25 of 2021
- **Bench:** Manoj Misra, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-the-c-m-sri-durga-ji-purva-madhyamik-balika-jamin-rasoolpur-47426
- **Pages:** 8

## Headnote

A. Service Law - UP Basic Education Act,
1972 - Section 12 - UP Junior High Schools
(Payment of Salaries of Teachers and other
Employees) Act, 1978 - Appointment on the
post of Headmaster/ Assistant Teacher -
Cancellation - Inquiry set up by the
Commissioner - Jurisdiction - Held, report
that was forwarded by the Commissioner,
though may not form the basis for the
action as directed, but it could very well be
treated
as
an
information
justifying
initiation of an enquiry and consequential
action that is otherwise permissible under
the statutory scheme - Held, further the
learned Single Judge while allowing the writ
petitions has not left it open for the
educational authorities empowered under
the 1972 Act and 1978 Act to examine the
validity of the appointments under the
provisions of the Act - Division Bench
modified the writ order. (Para 18 and 19)
B. Service Law - Appointment on the post of
Headmaster/Assistant Teacher - Approval
granted - Power of Review, when can be
exercised - Held, there is no power of
review of the order of approval once
accorded - But, it is well settled, where an
appointee does not possess the minimum
qualifications prescribed by a statutory rule,
the appointment would be void and can be
questioned at any stage - Similarly, where
appointments are obtained by a procedure
not known to law or by following a
procedure which is in flagrant violation of
the
statutory
provisions,
it
can
be
questioned at any stage. (Para 18)
C. Rule of Law - Power under law must be
exercised in its true spirit - Held, when
the administration is governed by a
984 INDIAN LAW REPORTS ALLAHABAD SERIES
statutory scheme, it has to be carried in
the manner provided therein and through
such authorities who have been conferred
powers thereunder - If the law requires
that a particular thing should be done in a
particular manner it must be done in that
way and none other. (Para 16)
D. Interpretation of Statute - Word
'Otherwise' - Meaning and Scope - Term
'otherwise' as it occurs in Sections (2) of
Section 12 of the Act of 1972 is of wide
import and it can include information
which may have been received from
sources other than inspection. (Para 18)
Four Appeal partly allowed; Two Appeal
disposed of. (E-1)
Cases relied on :-

## Text

9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
983

17. Put up this case on 29th
September, 2021 at 02:00 p.m.

18. A copy of this order shall be
provided to the learned A.G.A., who shall
communicate the same to the District
Judge, Varanasi, Commissioner of Police,
Varanasi as well as to the Secretary,
Allahabad High Court Bar, Association for
necessary compliance by Wednesday i.e.
15th September, 2021.

19. The party shall file computer
generated copy of this order downloaded
from the official website of the High Court,
Allahabad, self attested by the party
concerned along with a self attested
identity proof of the said person(s)
(preferably Aadhar Card) mentioning the
mobile number(s) to which the said Aadhar
Card is linked.

20. The concerned Court/Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court, Allahabad
and shall made a declaration of such
verification in writing.
----------
(2021)09ILR A983
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE DINESH PATHAK, J

Special Appeal No. 25 of 2021
&
Special Appeal Defective No. 225 of 2021
& others

State of U.P. & Ors. ...Petitioners
Versus
The C/M Sri Durga Ji Purva Madhyamik
Balika Jamin Rasoolpur, Azamgarh & Anr.
 ....Respondents

Counsel for the Petitioners:
Sri M.C. Chaturvedi, Sri Rajiv Singh

Counsel for the Respondents:
Sri Kunwar Bhaskar Parihar, Sri R.K. Ojha

A. Service Law - UP Basic Education Act,
1972 - Section 12 - UP Junior High Schools
(Payment of Salaries of Teachers and other
Employees) Act, 1978 - Appointment on the
post of Headmaster/ Assistant Teacher -
Cancellation - Inquiry set up by the
Commissioner - Jurisdiction - Held, report
that was forwarded by the Commissioner,
though may not form the basis for the
action as directed, but it could very well be
treated
as
an
information
justifying
initiation of an enquiry and consequential
action that is otherwise permissible under
the statutory scheme - Held, further the
learned Single Judge while allowing the writ
petitions has not left it open for the
educational authorities empowered under
the 1972 Act and 1978 Act to examine the
validity of the appointments under the
provisions of the Act - Division Bench
modified the writ order. (Para 18 and 19)
B. Service Law - Appointment on the post of
Headmaster/Assistant Teacher - Approval
granted - Power of Review, when can be
exercised - Held, there is no power of
review of the order of approval once
accorded - But, it is well settled, where an
appointee does not possess the minimum
qualifications prescribed by a statutory rule,
the appointment would be void and can be
questioned at any stage - Similarly, where
appointments are obtained by a procedure
not known to law or by following a
procedure which is in flagrant violation of
the
statutory
provisions,
it
can
be
questioned at any stage. (Para 18)
C. Rule of Law - Power under law must be
exercised in its true spirit - Held, when
the administration is governed by a
984 INDIAN LAW REPORTS ALLAHABAD SERIES
statutory scheme, it has to be carried in
the manner provided therein and through
such authorities who have been conferred
powers thereunder - If the law requires
that a particular thing should be done in a
particular manner it must be done in that
way and none other. (Para 16)
D. Interpretation of Statute - Word
'Otherwise' - Meaning and Scope - Term
'otherwise' as it occurs in Sections (2) of
Section 12 of the Act of 1972 is of wide
import and it can include information
which may have been received from
sources other than inspection. (Para 18)
Four Appeal partly allowed; Two Appeal
disposed of. (E-1)
Cases relied on :-
1. Manohar Lal (Dead) By Lrs. Vs Ugrasen
(Dead) By Lrs. & ors. (2010) 11 SCC 557
2. Dipak Babaria Vs St. of Guj., (2014) 3 SCC
502
3. R & B Falcon (A) Pvt Ltd. Vs Commissioner of
Income Tax, (2008) 12 SCC 466
(Delivered by Hon'ble Manoj Misra, J.)

1. These six intra-court appeals arise
from a common judgment and order dated
14.10.2020 of a learned Single Judge
passed in six connected writ petitions,
namely, Writ A No. 5540 of 2020; Writ A
No. 5795 of 2020; Writ A No. 5831 of
2020; Writ A No. 5743 of 2020; Writ A
No. 5592 of 2020; and Writ A No. 5582 of
2020.

2. As the aforementioned writ
petitions were decided by a common order,
with the consent of the learned counsel for
the parties, these appeals were heard
together and are being decided by a
common judgment and order.

3. Briefly stated the facts giving rise
to these intra-court appeals are that in the
district of Azamgarh, appointments on the
post of Headmaster/Assistant Teacher in
various Junior High Schools on the grantin-aid list of the State were made and
approved by the Basic Shiksha Adhikari,
Azamgarh (for short BSA). Questioning
their appointment on various grounds,
complaints made to the Commissioner of
Azamgarh
Division
(for
short
the
Commissioner) were entertained and the
Commissioner set up a four-member
Inquiry Committee that prepared a report
on 28.1.2020 which was forwarded to the
Commissioner by letter dated 29.01.2020
of
the
Additional
Commissioner
(Administration) i.e., the Chairman of the
Inquiry
Committee.
The
report
was
thereafter sent to the State Government.
The
Special
Secretary
of
the
State
Government,
vide
letter/order
dated
17.02.2020 addressed to the Assistant
Director of Education (Basic), Azamgarh
Division, Azamgarh, directed that a first
information report be lodged against the
officers,
employees
(teachers)
and
managers of the concerned institutions.
Acting on the letter/order dated 17.02.2020,
the BSA separately issued show cause
notices
to
the
management
of
the
institutions calling upon them to submit a
reply as to why the selection/approval with
regard
to
the
appointments
be
not
cancelled. In addition to above, on
27.06.2020 letters were issued by the BSA
to the Finance and Accounts Officers (for
short the Accounts Officer) attached to its
office to stop payment of salary to all those
appointees whose appointment procedure
was found faulty in the report dated
28.01.2020.

4. Writ A Nos. 5540 of 2020; 5743 of
2020; 5795 of 2020; and 5831 of 2020
giving rise to Special Appeal Nos. 25 of
2021; Special Appeal (Defective) No. 238
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
985
of 2021; Special Appeal (Defective) No.
255
of
2021;
and
Special
Appeal
(Defective) No. 241 of 2021, respectively,
were filed by the management of those
Junior High Schools who were aggrieved
with the Enquiry Report dated 28.01.2020
(forwarded on 29.1.2020), the order dated
17.02.2020 and the show cause notice.
Whereas, Writ A Nos. 5582 of 2020 and
5592 of 2020 giving rise to Special Appeal
(Defective) No. 225 of 2021 and Special
Appeal (Defective) No. 234 of 2021,
respectively, were filed by those teachers
who were aggrieved with the direction
seeking stoppage of their salary.

5. The common ground taken in all
the six writ petitions before the learned
Single Judge was that basic education
including recruitment and payment of
salary
of
teachers
related
thereto,
particularly, those working in institutions
on grant in aid list of the State, is governed
by statutes and the rules framed thereunder.
It was urged that appointment of teachers in
a recognized junior high school, receiving
grant-in-aid from the State, is to be made in
accordance with the provisions of U.P.
Recognized Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Services of Teachers) Rules, 1978 (for
short 1978 Rules) which are framed and
notified by the State Government in
exercise of its power under Section 19 of
the Basic Education Act, 1972 (for short
1972 Act) and the salary of such teachers is
paid under the provisions of U.P. Junior
High Schools (Payment of Salaries of
Teachers and other Employees) Act, 1978
(for short 1978 Act). Neither in the 1978
Rules nor under the 1972 Act or 1978 Act,
the Commissioner has a role to play. In the
statutory scheme, the Commissioner has no
supervisory role over the institutions
including their staff/teachers/management
and, therefore, the enquiry set up by him
was
without
jurisdiction.
Thus,
the
consequential report is of no consequence
and could not be made basis of any further
action. Similarly, the order passed by the
Commissioner
appointing
an
enquiry
committee in respect of appointment of
teachers, duly approved by the BSA under
the provisions of the 1978 Rules, was
completely void and any action flowing
from the report of such an Inquiry
Committee is void and liable to be quashed.

6. The learned Single Judge after
examining the scheme of 1972 Act, 1978
Rules and 1978 Act concluded that the
provisions of the aforesaid Acts and the
Rules conferred powers on specified
authorities other than the Commissioner or
other administrative officers therefore,
setting up an enquiry committee by the
Commissioner, the report of the Inquiry
Committee and the consequential direction
of the State Government based on that
report being in the teeth of the provisions
of the Acts and the Rules were all liable to
be quashed. Likewise, the show cause
notice and salary stoppage order, not being
an outcome of independent exercise of
power but the dictate of officers not falling
in the hierarchy of educational authorities
contemplated by the Act and the Rules,
were also liable to be quashed. Thus, all the
six petitions were allowed by the learned
Single Judge.

7. Aggrieved by the decision of the
learned Single Judge, the State is in appeal.

8. We have heard Sri M.C.
Chaturvedi, learned senior counsel, assisted
by Sri Rajiv Singh, learned Standing
Counsel, in all the appeals, for the
appellants; Sri R.K. Ojha, learned senior
counsel, assisted by Sri Kunwar Bhaskar
986 INDIAN LAW REPORTS ALLAHABAD SERIES
Parihar and Sri Shivendu Ojha for the
respondents in Special Appeal No. 25 of
2021, Special Appeal (Defective) No. 255
of 2021, Special Appeal (Defective) No.
241
of
2021
and
Special
Appeal
(Defective) No. 238 of 2021; Sri Indraraj
Singh for the respondents in Special
Appeal (Defective) No. 234 of 2021; and
Sri H.P. Shahi for the respondents in
Special Appeal (Defective) No. 225 of
2021.

9. The submissions of the learned
counsel for the appellants is that assuming
that the Commissioner of a Division does
not have a place in the hierarchy of
educational authorities as per the scheme of
the Acts (supra) and the Rules (supra) but,
section 12 of the 1972 Act confers power
on the Director to inspect or cause to be
inspected any basic school and, under subsection (2) thereof, he may direct the
management of a basic school to remove
any defect/deficiency found on inspection
or 'otherwise'. The term 'otherwise' used in
sub-section (2) is of significance and
enables the Director to take information
from various other sources also, to initiate
and take action contemplated under the
Acts and the Rules. Sub-section (3) of
section 12 of the 1972 Act empowers the
Director to refer the case to the Board for
withdrawal of recognition of such school if
management of basic school fails to
comply with the direction made under subsection (2). It is submitted that section 13
of the 1972 Act envisages control by the
State Government by providing that the
Board shall carry out such directions as
may be issued to it from time to time by the
State
Government
for
the
efficient
administration of the Act. As 1978 Rules
are framed and notified in exercise of
power
conferred
upon
the
State
Government by section 19 of 1972 Act, any
information
received
by
the
State
Government in respect of violation of the
provisions of 1972 Act or 1978 Rules,
could be passed on to the authorities to
ensure
proper
administration
of
the
provisions of the 1972 Act therefore, it
cannot be said that the Commissioner held
no jurisdiction to direct for an enquiry. It is
submitted
that
even
assuming
that
Commissioner held no jurisdiction to bind
the educational authorities with the report
submitted by the Inquiry Committee set up
under
its
directions,
even
then
the
educational authorities were empowered to
take notice of the report and proceed
further in accordance with law. It was
urged that by quashing the report, the
notice issued in pursuance of the report and
the order issued by the State Government,
the learned Single Judge has closed the
doors to scrutinize the legality and validity
of the appointment that is, whether the
appointments were made by following the
procedure prescribed by the 1978 Rules.

10. In addition to above, it was urged
on behalf of the appellants that section 4 of
the 1978 Act empowers the Education
Officer to inspect or cause to be inspected
any institution or call for such information
and records from its management with
regard to payment of salaries to its teachers
or employees or give its management any
direction for the observance of such canons
of
financial
propriety
including
any
direction for retrenchment of any teacher or
employee for prohibition of any wasteful
expenditure, as he thinks fit. It is urged that
the BSA is the Education Officer as per the
definition under Section 2 (b) of the 1978
Act.
Thus,
the
show
cause
notices
impugned in the writ petitions, issued by
the BSA, were referable to Section 4 of the
1978 Act and were not liable to be quashed
at the threshold. More so, when the BSA
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
987
was authorised to issue notice to the
management calling for its explanation in
respect of irregularity in the appointment of
teachers in the institutions concerned. It is
submitted that the impugned judgment and
order of the learned Single Judge fails to
take notice of the relevant provisions of the
1972 Act, the 1978 Act and the 1978 Rules
therefore, the same is liable to be set aside.

11. Per contra, on behalf of the
management, it was urged by Sri R.K. Ojha
that neither the 1972 Act nor the 1978 Act
contemplates a role for the Commissioner
to examine the validity of the appointments
approved by the Basic Education Officer.
Thus, the setting up of an enquiry
committee by him is a void act with no
statutory backing. Accordingly, the learned
Single Judge was justified in quashing the
order/notice impugned in the writ petition.
In the alternative, it was submitted on
behalf of the respondents that if any
irregularity in appointments had been
noticed, the same could be reported to the
Director or to the Board to act in
accordance with the provisions of law. But,
issuance of notice at the dictates of the
State authorities, having no place in the
statutory
scheme
governing
basic
education, is completely unjustified and has
rightly been quashed by the learned Single
Judge.

12. On behalf of teachers (respondents
in Special Appeal (Defective) Nos. 225 of
2021 and 234 of 2021), it was urged by Sri
Indraraj Singh and Sri H.P. Shahi that the
appointments were made in accordance with
the 1978 Rules and had received approval of
the BSA and so long the appointments are not
cancelled by a procedure known to law there
could be no stoppage of salary. Therefore, the
judgment of the learned Single Judge in that
regard calls for no interference.

13. We have considered the rival
submissions and have perused the record
carefully.

14. Before we proceed to weigh the
rival submissions, we may notice the
reasoning of the learned Single Judge in the
impugned judgment.

15. The learned Single Judge placed
reliance on a decision of the Apex Court in
Manohar Lal (Dead) By Lrs. vs Ugrasen
(Dead) By Lrs. & Ors (2010) 11 SCC 557,
wherein, after noticing various decisions,
the apex court had concluded as follows:

"Therefore,
the
law
on
the
question can be summarised to the effect
that no higher authority in the hierarchy or
an appellate or revisional authority can
exercise the power of the statutory
authority nor can the superior authority
mortgage its wisdom and direct the
statutory authority to act in a particular
manner. If the appellate or revisional
authority takes upon itself the task of the
statutory authority and passes an order, it
remains unenforceable for the reason that
it cannot be termed to be an order passed
under the Act."

16. The legal principle forming the
basis of the decision of the Apex Court in
Manohar Lal's case (supra) is well settled.
The
principle
is
that
when
the
administration is governed by a statutory
scheme, it has to be carried in the manner
provided
therein
and
through
such
authorities who have been conferred
powers thereunder. That is, if the law
requires that a particular thing should be
done in a particular manner it must be done
in that way and none other. Following this
principle in Dipak Babaria V. State of
988 INDIAN LAW REPORTS ALLAHABAD SERIES
Gujarat, (2014) 3 SCC 502, the Apex
Court, in paragraph 72, observed:

"The State cannot ignore the
policy intent and procedure contemplated
by the statute...It is not merely the end but
the means which are of equal importance,
particularly if they are enshrined in the
legislative scheme. The minimum that was
required was an enquiry at the level of the
Collector who is the statutory authority.
Dictating him to act in a particular manner
on the assumption by the Minister that it is
in the interest of industrial development
would lead to a breach of the mandate of
statute framed by the legislature."

17. Applying the above legal principle
and upon finding that in the scheme of the
1972 Act and 1978 Rules a separate set of
authorities have been conferred powers and
the Commissioner finds no place in that
statutory scheme, the learned Single Judge
justifiably held that the Commissioner
exceeded its jurisdiction and powers by
directing an enquiry and, similarly, the
Secretary Education, without independently
applying his mind, erred in issuing a
command to the educational authorities to
straight away lodge a first information
report and to act in a particular manner. To
this extent, the order of the learned Single
Judge being well founded on settled legal
principles
calls
for
no
interference.
However, what has been overlooked by the
learned Single Judge is, whether the
impugned report doubting the validity of
the appointments on the ground that the
procedure prescribed for appointments was
not followed, could be treated as an
information to form basis for initiation of a
proper enquiry within the framework of the
Acts (i.e. 1972 Act and 1978 Act) and the
Rules. In this context, the learned counsel
for the State has submitted that the doors to
examine irregularities in the appointment
ought not to have been closed. We find
substance in this submission of the
appellant's counsel. We, therefore, now
proceed to examine the statutory scheme of
the 1972 Act and the 1978 Act to find out
as to in what manner the validity of such
appointments could be tested once approval
to them was accorded by the BSA.

18. The 1972 Act is an Act to provide
for the establishment of a Board of basic
education and for the matters connected
therewith. Section 2 (b) defines basic
education as education up to class eighth.
Section 19 empowers the State Government
to make rules for carrying out the purposes
of the Act. Clause (c) of sub-section (2) of
Section 19 of the 1972 Act specifically
provides that rules may provide for the
recruitment, and the conditions of service
of the persons appointed, to the posts of
teachers and other employees of basic
schools recognised by the Board. 1978
Rules framed under the 1972 Act provide
for the procedure as well as qualification
for appointment of teachers to such
schools. Sub -rule (5) of Rule 10 casts a
duty upon the BSA, before granting
approval to the appointment, to be satisfied
that the candidates recommended by the
Selection Committee possess the minimum
qualifications prescribed for the post and
that the procedure laid down in the Rules
for the selection of Head Master or
Assistant Teacher, as the case may be, has
been duly followed. No doubt, there is no
power of review of the order of approval
once accorded. But, it is well settled, where
an appointee does not possess the minimum
qualifications prescribed by a statutory
rule, the appointment would be void and
can be questioned at any stage. Similarly,
where appointments are obtained by a
procedure not known to law or by
9 All U.P.S.R.T.C., Lko. & Ors. Vs. Shubash Chandra Gautam & Anr.
989
following a procedure which is in flagrant
violation of the statutory provisions, it can
be questioned at any stage. More over, the
BSA, under section 4 of the 1978 Act, is
empowered to inspect or cause to be
inspected any institution or call for records
from its management with regard to the
payment of salaries to its teachers or
employees or give its management any
direction for the observance of such canons
of financial propriety (including any
direction for retrenchment of any teacher or
employee for prohibition of any wasteful
expenditure)
as
he
thinks
fit.
For
enforcement of a direction issued under
section 4 of the 1978 Act, procedure is
prescribed
under
section
6
thereof.
Likewise, section 12 of the Act, 1972
envisages control of the Director over
Basic Schools. As a junior high school is a
basic school within the meaning of section
2(b) of the 1972 Act, it cannot be said that
the Director has no control over it. Further,
sub-section (2) of section 12 provides that
the Director may direct the management of
a basic school to remove any defect or
deficiency
found
on
inspection
or
otherwise. The term 'otherwise' in P.
Ramanatha
Aiyar's
Advanced
Law
Lexicon has been attributed different
meaning in different contexts. One of them
is "by other like means; contrarily; different
from that to which it relates; in a different
manner; in another way; in any other way;
differently in other respects in different
respects; in some other like capacity." The
above meaning attributed to the term
otherwise has been adopted by the Apex
Court in its decision in the case of R & B
Falcon (A) Pvt Ltd. V Commissioner of
Income Tax, (2008) 12 SCC 466. What we
find from the above is that the term
"otherwise" as it occurs in sub-section (2)
of section 12 of the 1972 Act is of wide
import and it can include information
which may have been received from
sources other than inspection. Hence, in our
view, the report that was forwarded by the
Commissioner, though may not form the
basis for the action as directed, but it could
very well be treated as an information
justifying initiation of an enquiry and
consequential action that is otherwise
permissible under the statutory scheme of
the 1972 Act and 1978 Act.

19. As the learned Single Judge while
allowing the writ petitions has not left it
open
for
the
educational
authorities
empowered under the 1972 Act and 1978
Act to examine the validity of the
appointments under the provisions of the
Act and the Rules framed thereunder, we
are of the view that the judgment and order
of the learned Single Judge is liable to be
modified to that extent.

20. We, therefore, partly allow
Special Appeal No. 25 of 2021; Special
Appeal (Defective) No. 238 of 2021;
Special Appeal (Defective) No. 255 of
2021; and Special Appeal (Defective) No.
241 of 2021 and modify the judgment and
order of the learned Single Judge dated
14.10.2020 to the extent indicated below:-

"The
enquiry
report
dated
28/29.01.2020 as well as the order of the
State
Government
dated
17.02.2020
though, would not be binding on the
educational authorities but may be taken as
an
information
to
initiate
a
fresh
proceeding within the framework and the
scheme of the 1972 Act and 1978 Act.
Similarly, the order dated 17.02.2020 will
not be treated as a binding direction to
lodge the FIR but if the educational
authority by applying its own independent
mind is of the opinion that there is
sufficient material reflecting commission of
990 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizable offence then it would be free to
report such offence."

21. The order of the learned Single
Judge quashing the orders stopping the
payment of salary is affirmed subject to the
liberty to examine the legality/propriety of
the appointments given above. Special
Appeal (Defective) No. 225 of 2021 and
Special Appeal (Defective) No. 234 of
2021 are disposed off accordingly.
----------
(2021)09ILR A990
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.08. 2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAY, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA -I, J.

Special Appeal No. 177 of 2019
AND
Special Appeal No. 178 of 2019
AND
Special Appeal No. 183 of 2019

U.P.S.R.T.C., Lko . & Ors. ...Appellants
Versus
Shubash Chandra Gautam & Anr.
 ...Respondents

Counsel for the Appellants:
Ratnesh Chandra

Counsel for the Respondents:
Ghaus Beg

A. Service Law - UP Road Transport
Corporations Act, 1950 - 34 - GO dated
10.10.2012 and Circular dated 25.10.2012
-
Pension
-
Entitlement
-
Initially
appointed against non-pensionable post;
however, subsequently promoted against
pensionable post - Exclusion from the
benefit
of
departmental
pension
-
Permissibility - Held, there cannot be any
doubt about the power of the State
Government emanating from Section 34 of
1950 Act to issue instructions or give
directions to the Corporation in respect of
conditions of service of the employees of
the Corporation - GO dated 10.10.2012
does
not
differentiate
between
the
employees who were getting pension
under the EPF Pension Scheme and those
who were not getting such benefit.
However,
contrary to
the
stipulation
available in the GO dated 10.10.2012, the
Corporation while issuing the circular
dated 25.10.2012 has drawn such a
distinction - Division Bench found no
illegality in writ order quashing circular
dated 25.10.2012. (Para 30 and 35)
B. Service law - Pension - Significance -
Payment of pension forms a condition of
service. (Para 30)
Appeal dismissed. (E-1)
Cases relied on :-
1. Krishena Kumar Vs U.O.I. & ors., (1990) 4
SCC 207
2. D. S. Nakara & ors.Vs U.O.I.,(1983) 1 SCC
305
3. S. P. Dubey Vs Madhya Pradesh State Road
Transport Corporation & anr. 1991 Supp (1) SCC
426

(Delivered by Hon'ble Devendra Kumar
Upadhyay, J.
&
Hon'ble Ajai Kumar Srivastava -I, J.)

1. These special appeals filed by the
appellant-U.P.
State
Road
Transport
Corporation (hereinafter referred to as the
Corporation) raise similar questions of law
and facts and are therefore being decided
by the common judgment, which follows as
under :

2. Special Appeals No.177 of 2019
and 178 of 2019 assail the judgment and