# Sunil Kumar Mishra v. State of U.P. & Ors

- **Citation:** Service Single No. 8038 of 2011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-06-14
- **Case number:** Service Single No. 8038 of 2011
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-mishra-v-state-of-u-p-ors-46230
- **Pages:** 5

## Headnote

(A) Interpretation - Ordinance dated
26.09.1991 and 28.06.1993 - 'And' - is a
grammatical conjunction - in exceptional
circumstances only it may be capable of
being read as "or" to manifest intention of
legislature, if the contest so demands.

Writ Petition Rejected. (E-10)

List of cases cited:

## Text

798 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner
on
14.06.2017
seeking
information.
The
said
letter
dated
14.06.2017 has been annexed as Annexure
No.8 to the writ petition.

8. Further, the letter dated 20.02.2020,
which has been brought into the notice of
this Court by learned counsel for the
petitioner, clearly reveals that the aforesaid
grievance of the petitioner is pending
consideration, for that, some documents
have been asked and as per learned counsel
for the petitioner those documents have
already been provided to the Competent
Authority.

9. It has been noted that all those
correspondences have been made with the
petitioner on his address at Sultanpur
(U.P.). Besides, the petitioner is aged about
80 years and in the old age he has been
suffering couple of diseases.

10. Learned counsel for the petitioner
has further submitted that the petitioner has
preferred couple of representations to the
Competent Authorities but no proper
decision has been taken. Therefore, the
petitioner may be permitted to prefer a
fresh representation to the Authority
Competent and the direction may be issued
to decide the same within time frame.

11. Be that as it may, in view of the
decision of Hon'ble Supreme Court in re:
Nawal Kishore Sharma (supra) the cause
of action in terms of Article 226 (2) of the
Constitution of India has arisen within the
jurisdiction of this Court at Lucknow and in
view of the decision of Hon'ble Supreme
Court in re: M.R. Gupta (supra), the cause
of action for getting the benefits of 6th Pay
Commission and 7th Pay Commission is
still existing. Therefore, it is a recurring
cause of action, hence, the second ground
may not sustain in the eyes of law.

12. Therefore, in view of the above,
the petitioner is permitted to prefer a fresh
representation to the opposite party No.6
i.e. Deputy Inspector General, Group
Centre, Central Reserve Police Force,
Mokama Ghat, Patna, Bihar taking all pleas
and grounds which are available with him
enclosing therewith the copies of his earlier
representations
and
other
relevant
documents which are necessary for disposal
of his representation within a period of one
month
from
today,
and
if,
such
representation is preferred by the petitioner
within the aforesaid stipulated time, the
Authority Competent shall consider and
decide the same strictly in accordance with
law by speaking and reasoned order with
expedition, preferably, within a period of
three months from the date of presentation
of a certified copy of this order along with
representation and the decision thereof be
communicated to the petitioner forthwith.

13. In view of the aforesaid terms, the
writ petition is disposed of finally.
----------
(2020)03-05ILR A798
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.02.2020

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 8038 of 2011

Sunil Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Pratap Singh
3-5 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
799
Counsel for the Respondents:
C.S.C., Indra Pratap Singh, Krishna Madhav
Shukla

(A) Interpretation - Ordinance dated
26.09.1991 and 28.06.1993 - 'And' - is a
grammatical conjunction - in exceptional
circumstances only it may be capable of
being read as "or" to manifest intention of
legislature, if the contest so demands.

Writ Petition Rejected. (E-10)

List of cases cited:

1. S.Krishnan Vs. St. of Mad. AIR 1951 SC 301:
1951 SCJ 453: 1951 SCR 621 (followed)

2. Vidyacharan Shukla Vs. Khubchand Baghel
AIR 1964 SC 1099: (1964) 2 SCA 505: (1964) 6
SCR 129 (followed)

3. Ishwar Singh Bindra Vs. St. of U.P. AIR 1968
SC 1450: 1968 Cr.LJ 19: (1969) 1 SCR 219
(followed)

4. St. of T.N. Vs. R. Krishnamurthy AIR 1980 SC
538 (followed)

5. Fakir Mohd. Vs. Sita Ram AIR 2002 SC 433:
(2002) 1 SCC 741: JT 2001 (10) SC 530
(followed)

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Ajay Pratap Singh, learned
Counsel for the petitioner, Sri Rishabh Tripathi
and Sri K.M.Shukla, learned Counsel for the
respondents.

2. The present petition has been filed, for
the following main reliefs:-

"I. Issue a writ, order or direction in
the nature of CERTIORARI thereby quashing
the impugned order dated 4.7.2011 passed by
the Director of Education (Secondary), U.P. ,
Lucknow (opposite party No. 2) contained as
Annexure No. 1 to the writ petition.

II. Issue a writ, order or direction in
the nature of MANDAMUS commanding the
Opposite Parties to provide the financial
approval to the petitioner on the post of
Assistant Teacher (Modern Subject) in Ram
Deshik
Sanskrit
Uchchtar
Madhyamik
Vidyalya, Ankaripur, District Faizabad as
admittedly the opposite party NO. 6 and 7 are
juniors to the petitioner and they have been
accorded financial approval."

3. The brief facts of the case as stated
in the writ petition, are that the petitioner
was appointed on the post of Assistant
Teacher (Modern Subject) on 1.7.2005 by
the Manager, Committee of Management
by following the due process in Ram
Deshik Sanskrit Uchchtar Madhyamik
Vidyalya
Rampur,
Ankaripur,
District
Faizabad
(now
Ayodhya)
(in
short
"Institution"). The petitioner joined his
duties on the post of Assistant Teacher
(Modern Subject) on 4.7.2005. In the year
2008, with regard to taking the Institution
in grant-in-aid, the name of the Teacher as
well as Principal was submitted before the
authorities concerned in which the name of
the opposite party No. 6 and 7 does not find
place.
On
12.08.2010,
the
State
Government issued a Government Order by
which the institution of the petitioner was
taken into grant-in-aid list. When the
manager came to know regarding the grantin-aid of the Institution, he immediately
changed the list of teachers by mixing the
name of his son and daughter-in-law viz
Alok Kumar Tiwari (Opposite Party No. 7)
and Mithilesh Kumar (opposite party no.
6). Thereafter, the District Inspector of
Schools, Faizabad, sent a letter to the
opposite party no. 2 on 29.03.2011 with the
observation that two different lists have
been submitted in respect of teaching staff
and requested the respondent no. 2 to do
the needful in the matter. From the records
800 INDIAN LAW REPORTS ALLAHABAD SERIES
of District Inspector of Schools, Faizabad it
appears that appointment of opposite party
nos. 6 and 7 were of 01.07.2009 and
02.07.2009 respectively and petitioner has
been working since 04.07.2005. The
petitioner is still working on the post of
Assistant Teacher (Modern Subject) since
the date of joining. The petitioner is fully
eligible and qualified for the appointment
on the post of Assistant Teacher (Modern
Subject) and being so entitled to salary
from State.

4. Opposing the writ petition, the
respondent nos. 4, 6 and 7 have filed
counter
affidavit
and
supplementary
counter affidavit filed by the respondent
nos. 6 and 7 is also on record.

5. In the affidavit filed by the opposite
partiy nos. 4, 6 and 7 it is stated that Ram
Deshik Sanskrit Uchchtar Madhyamik
Vidyalya, Ramapur, Faizabad, where the
petitioner was working, is affiliated to
Sampurna
Nand
Sanskrit
University,
Varanasi( in short "University") and as per
the Government Order dated 28.06.1993,
the qualification for the post of Assistant
Teacher
(Modern/Adhunik)
is
Post
Graduate with Second Division, whereas
the petitioner is Post Graduate with Third
Division and keeping in view the same the
financial
approval
with
regard
to
appointment of petitioner was not given by
the respondent no. 2.

6. Pressing the writ petition for the
reliefs sought the learned Counsel for the
petitioner submitted that the petitioner was
appointed in the recognized Institution
affiliated to Sampurna Nand Sanskrit
University, Varanasi, imparting education
upto the Uttar Madhyma, on the post of
Assistant
Teacher
and
qualification
provided for the posts of Assistant Teacher
of Modern Subjects in Ordinance of
University dated 26.06.1993 is only Post
Graduate and not Post Graduate with
Second Division and as such the petitioner
is entitled to financial approval as also the
salary from State Exchequer.

7. Per contra, learned Counsel for the
State Sri Rishabh Tripathi as also the
learned Counsel for the respondent nos. 6
and 7 Sri K.M.Shukla, submitted that in the
instant case, as per Ordinance dated
26.06.1993 the minimum qualification for
the post of Assistant Teachers (Modern
Subjects/Adhunik) is Post Graduate with
Second Division whereas the petitioner,
admittedly is Post Graduate with Third
Second as such he does not fulfill the
minimum
requisite
qualification
consequently he is not entitled to salary for
State Exchequer.

8. On the basis of pleadings on record
and submission of learned Counsel for the
parties
that
the
questioner(s)
for
consideration are that (i) Whether petitioner
is eligible and qualifed for the post of
Assistant
Teacher
(Modern
Subject/Adhunik) being Post Graduate with
Third Division and (ii) whether the
requisite qualification for the post of
Assistant
Teacher
(Modern
Subject/Adhunik).

9. Heard learned Counsel for the
parties and perused the records.

10. For deciding the questions
involved in the instant writ petition, it
would be appropriate to take notes of the
relevant
portion
of
Ordinance
dated
28.06.1993 and earlier Ordinance dated
26.09.1991 of the University prescribing
minimum qualification for the post of
Assistant
Teacher
(Modern
3-5 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
801
Subjects/Adhunik)
in
the
recognized
Institution imparting education upto Uttar
Madhyma affiliated to University.

11. Relevant portion of Ordinance
dated 26.09.1991 reads as under:-

"4&mRrje/;ek Lrj rd ekU;rkizkIr
fo|ky; ds v/;kidksa dh U;wure vgZrk,a
fuEufyf[kr gksaxh%&

1⁄4d1⁄2lEc) fo"k; esa de ls de f}rh;
Js.kh esa LukrdksRrj mikf/kA

1⁄4[k1⁄2 izf'k{k.k vkSj ijEijkxr mikf/k dks
ojh;rkA"

12. Relevant portion of Ordinance
dated 28.06.1993 reads as under:-

"mRrj e/;ek LRkj rd ekU;rk izkIr
fo|ky;ksa ds v/;kidksa dh U;wure vgZrk,¡
fuEufyf[kr gksxh&

d1⁄2 lEc) fo"k; esa de ls de f}rh;
Js.kh esa "d" oxhZ; fo"k; esa vkpk;Z mikf/k vkSj
vk/kqfud fo"k;ksa ds v/;kidksa ds inksa ds fy,
LukrdksRrj mikf/kA"

13. To answer the questioner(s)
aforesaid, this Court of the view that
English
version
of
Ordinance
dated
28.06.1993
is
also
required
to
be
considered but the same has not been
produced by any of the party and
accordingly the free hand translation of the
same reads as under:-

"Minimum
Second
Class
in
related subject for "A" category subjects
Acharya Degree and for the posts of
Assistant
Teachers
(Modern
Subjects/
Adhunik Vishyon) Post Graduate Degree."

14. From the above quoted provision,
under consideration, it appears that word
"And/vkSj" has been used therein between
two category of Assistant Teachers. Now
the question is that what would be effect of
word "And" in the provision.

15.

"And"
is
a
grammatical
conjunction used to indicate that one or
more classes/cases it connects. Further, it
connects clauses or sentences and is
generally used in cumulative sense.

16. The word "and" is generally
conjunctive
and
in
only
exceptional
circumstances, the word "and" may be
capable of being read as "or", to manifest
intention of legislature if the context so
demands. In normal course the term "and"
has a cumulative sense, requiring the
fulfilment of all the conditions that are
joined together. (Sec: S.Krishnan v. State of
Madras, AIR 1951 SC 301: 1951 SCJ 453:
1951 SCR 621; Vidyacharan Shukla v.
Khubchand Baghel, AIR 1964 SC 1099:
(1964) 2 SCA 505:(1964) 6 SCR 129;
Ishwar Singh Bindra v. State of Uttar
Pradesh, AIR 1968 SC 1450: 1968 Cr.LJ 19
(1969) 1 SCR 219; State of Tamil Nadu v.
R. Krishnamurthy, AIR 1980 SC 538; and
Fakir Mohd. v. Sita Ram, AIR 2002 SC 433:
(2002) 1 SCC 741: JT 2001 (10) SC 530.

17.

Considering
the
aforesaid
including the earlier Ordinance dated
26.09.1991 and the settled legal preposition
with regard to use of word "And", I am of
the view that the effect of word "And/vkSj"
used in the relevant part of Ordinance dated
28.06.1993
is
that
the
expression
"Minimum Second Class" is required for
appointment of Assistant Teacher on post(s)
related to, "A" Category Subjects as also
for "Modern Subjects".

18. Thus, the answer to question no. 2
is
that
Post
Graduate
Degree
with
minimum Second Class is required for
802 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment on the post of Assistant
Teacher (Modern Subject/ Adhunik).

19. In view of above, the answer to
the question no. 1, is that the petitioner is
not qualified for the post of Assistant
Teacher (Modern Subject/Adhunik).

20. In view of the aforesaid, the
petitioner is not entitled to the salary from
the State Exchequer.

21. Thus, the writ petition for the
relief sought is misconceived and hence
dismissed accordingly.

22. No order as to to costs.
----------
(2020)03-05ILR A802
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 9184 of 2018
connected with
Service Single No. 883 of 2018 & Ors.

Lakshman Singh & Ors ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Gaurav
Mehrotra,
Anamita
Srivastava,
Santosh Kumar Tripathi, Shreya Prakash

Counsel for the Respondents:
C.S.C.

(A) Civil Law- Appointment - court would
have
the
right
to
regularize

an
appointment made only after following
the due procedure, even though, a non
fundamental element of that process or
procedure has not been followed - this
right would not extend to direct that an
appointment made in clear violation of the
constitutional scheme and statutory rules
can be treated to be permanent
Writ Petition Disposed of. (E-10)

List of cases cited:

1. St. of U.P. & anr. Vs. Dalla Ram & ors. Writ
Petition No. 1/SB/2013

2. Secretary, St. of Karn. & ors. Vs. Umadevi
and ors (2006) 4 SCC 1

3. National Fertilizers Ltd. & ors. Vs. Somvir
Singh (2006) 5 SCC 493

4. St. of Orissa & ors. Vs. Mamata Mohanty
(2011) 3 SCC 436

5. St. of Hary. Vs. Piara Singh & ors. (1992) 3
SCR 826

6. Dr. M.S. Mudhol and ors. Vs. S.D. Halegkar &
ors. (1993) 3 SCC 591

7. Rekha Chaturvedi (Smt.) Vs. State of
Rajasthan & ors. 1993 Supp (3) SCC 168

8. St. of U.P. & anr. Vs. Anand Kumar & ors.
(2018) 13 SCC 560

(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. Since similar question of facts and
law are involved in the bunch of writ
petitions, therefore, they are being decided
by this common order.

2. By means of bunch of writ
petitions the petitioners have challenged the
order passed by learned Advocate General
vide which appointment of the petitioners
have been cancelled and their services have
been terminated with immediate effect.

3. In Writ Petition Nos.883 (SS) of
2019, 3047 (SS) of 2018, 3402 (SS) of