# Surendra Kumar Singh and another v. State of U.P. and another

- **Citation:** (2001) 2 ILRA 120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-singh-and-another-v-state-of-u-p-and-another-39767
- **Pages:** 11

## Text

2All] Surendra Kumar Singh and another V. State of U.P. and another

120
(Rupees Twenty Five Thousand Only) as
damages to the other party besides
rendering himself liable to be prosecuted
for committing grossest contempt of the
Court.

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By the Court

1. These petitions are based on
common cause of action and since the
relief's
claimed
are
common,
these
petitions were together for convenient
disposal
by
a
common
judgement.
Learned
counsel
appearing
for
the
petitioners in each of these writ petitions
as also Sri S.K. Singh, learned counsel
representing the U.P. Public Service
Commission and the Standing Counsel
representing the State were heard for and
against the relief's claimed in these
petitions.

2. It appears that the U.P.
Subordinate Service Commission had
advertised certain posts including the post
of
Regional
Inspector
(Technical)/Assistant Regional Inspector
(Technical) vide advertisement no. 2/9697. The cut off date for the purpose of
determining the prescribed age limit was
1.7.1996. The last date for submission of
applications was 26.11.1996. But before it
could hold any examination pursuant to
the
said
advertisement
the
U.P.
Subordinate Service Commission was
abolished by U.P. Ordinance No. 16 of
1997 and the posts falling within the
purview of the U.P. Subordinate Services
Commission were brought within the
purview of the U.P. Public Service
Commission. The petitioner was within
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

121
the age limit as per advertisement issued
by
the
U.P.
Subordinate
Services
Commission but when the posts were readvertised by the U.P. Public Service
Commission vide advertisement no. 14/E-1/1999, he surpassed the age limit by
operation of the 'cut - off- date' namely,
1st July of the calendar year in which the
advertisement was issued i.e. 1.7.1999.
The
cut-off-date
so
fixed
in
the
advertisement is statutorily provided by
the U.P. State Services (Age-Limit)
Rules,
1972,
as
amended
by
5th
Amendment Rules, 1984. The petitioner
admittedly became over-aged on the first
date of July of the Calendar year in which
the vacancies for direct recruitment came
to be advertised by the Public Service
Commission. Since the candidature of the
petitioner was liable to be rejected in
terms of the advertisement itself, he filed
the instant petition before he received an
order of rejection of his candidature. This
Court
invited
counter
affidavit
and
permitted the petitioner to take the
examination
of
Assistant
Regional
Inspector (Technical)/Regional Inspector
(Technical) subject of course, to the
ultimate decision of the writ petition. The
result of the examination has been
declared but so far as the petitioner is
concerned, his result has not been
declared ostensibly for the reason that he
was
permitted
to
appear
in
the
examination subject to the result of the
writ petition. Now the matter has come up
for final disposal.

3. It has been submitted by the
learned
counsel
appearing
for
the
petitioner that the petitioner was well
within the age limit prescribed by the
relevant service rules as per advertisement
issued by the U.P. Subordinate Services
Commission but outran the age limit
when the vacancies were re-advertised by
the U.P. Public Service Commission. The
petitioner it has been submitted by the
counsel, cannot be fastened with any
blame owing to the fact that the
Subordinate Services Commission was
abolished and the posts were brought
within the purview of the U.P. Public
Service Commission. It has been further
submitted for the petitioner that in respect
of the posts of Naib Tahsildar a provision
was made in the advertisement itself that
the candidates who had applied for the
posts pursuant to the advertisement issued
by the Subordinate Services Commission
within the prescribed age limit as per
advertisement then issued could apply
pursuant to the advertisement issued by
the U.P. Public Service Commission
while no such benefit was given in
relation to the post of Regional Inspector
(Technical)/Assistant Regional Inspector
(Technical)
and
this,
proceeds
the
submission, is arbitrary and violates the
equality clause of the Constitution.

4. For the respondents it has been
submitted by Sri S.K. Singh that the rules
governing recruitment to the post of
Regional Inspector (Technical)/Assistant
Regional Inspector (Technical) do not
permit any relaxation in age limit. The
petitioners , it has been submitted by Sri
S.K. Singh, are not entitled to claim parity
with those candidates who had applied
for the post of Naib Tahsildar and other
subordinate services of executive branch.
It has been further submitted by Sri S.K.
Singh that in writ petition no. 49699 of
1999 Ran Vijai Singh Versus State of
U.P. and another a similar plea of parity
was rejected by a learned Single Judge by
judgement and order dated 15.12.2000.
Reliance has also been placed on a
Division Bench decision of this Court in
2All] Surendra Kumar Singh and another V. State of U.P. and another

122
Civil Misc. Writ Petition no. 33765 of
1999 (Advocate Association Versus State
of U.P. and another) decided on 11.8.1999
wherein the plea of relaxation of age was
rejected by the court holding that as the
Rules stood, the candidates who had
become over aged were not entitled to
appear in the examination. The same view
was reiterated in the subsequent writ
petition no. 38671 of 1999 (The Advocate
Association and others Versus State of
U.P. and others decided on 21.12.1999).

5. I have given my anxious
consideration to the submissions made
across the bar. The candidates who had
applied for the posts in question pursuant
to the advertisement No. 2/96-97 issued
by the U.P. Public Service Commission
could not take the examination due to the
abolition of the U.P. Subordinate Services
Commission and the posts which were
earlier advertised by the U.P. Subordinate
Services
Commission
carne
to
be
advertised afresh by the U.P. Subordinate
Services Commission wherein the cut off
date for the purpose of determination of
age limit was set out with reference to the
year of recruitment as provided in the
Rules and in the meantime the petitioner
becomes over aged. Enquiry may lean in
favour of such candidates but enquiry
cannot prevail over statutory law which
prescribes certain age limit for the post in
question as also the cut-off-date for the
purpose of determining the prescribed age
limit. The court cannot issue a direction
the compliance of which may lead to
violation of such rules. I have, therefore,
no option but to follow the aforesaid
decision relied on by Sri S.K. Singh
Concededly
the
Rules
governing
appointment to the post of Regional
Inspector (Technical)/Assistant Regional
Inspector (Technical) do not provide for
any relaxation in the age limits and the
advertisement issued by the U.P. Public
Service Commission prescribed the cutoff-date as per the requisition received
from the Transport Commissioner which
was in accordance with the U.P. State
Services (Age-limits) Rules, 1972 as
amended by Vth Amendment Rules,
1984. Rule 6 inserted by the 5th
amendment Rules,1984 has an overriding
effect
in
that
it
provides
that
notwithstanding anything to the contrary
contained in any service rules, for the
services and posts, whether within or
without the purview of the Public Service
Commission, a candidate must have
attained the minimum age and must not
have attained the maximum age as
prescribed from time to time on the 1st
day of July of the calendar year in which
the vacancies for direct recruitment are
advertised
by
the
Public
Service
Commission or any other recruiting
authority or as the case may be such
vacancies
are
intimated
to
the
Employment
Exchange.
The
U.P.
Subordinate Services Commission had
advertised these vacancies in the year
1996-97 and as per the advertisement
issued by the U.P. Subordinate Services
Commission the petitioners herein were,
perhaps, within the prescribed age limit
but
the
U.P.
Subordinate
Services
Commission Act, 1988 came to be
repealed by the U.P. Ordinance No. 16 of
1997 which in turn came to be repealed
and replaced by U.P. Act 5 of 1998 with
the
result
that
the
Uttar
Pradesh
Subordinate Services Commission came
to be abolished. The repealing Act does
not contain any saving clause in respect of
the vacancies advertised by the U.P.
Subordinate
Services
Commission.
Section 6 of the U.P. General Clause Act,
1904 will be unavailing inasmuch the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

123
petitioners acquired no right or privilege
to appear in the examination pursuant to
the
subsequent
advertisement
issued
afresh by the U.P. Public Service
Commission merely because they had
applied pursuant to the advertisement
earlier issued by the U.P. Subordinate
Services Commission.

6. The view I am taking finds
support from the decision of the Supreme
Court in I.J. Divakar Vs. Government
of Andhra Pradesh1. In that case the
Andhra Pradesh Service Commission had
invited applications for filling posts of
Junior Engineers and in response to the
advertisement several candidates applied
for the said posts and appeared at the
viva-voce test. While the Commission
was in process of finalising the select list,
the Government of Andhra Pradesh issued
a Government Order under the proviso to
Article
320(3)
of
the
Constitution
excluding the posts of Junior Engineers
from the purview of the Public Service
Commission.
The
Government
regularised the services of the Junior
Engineers without subjecting them to any
test written or oral. The candidates who
had
applied
in
response
to
the
advertisement issued by the Commission
challenged the validity of the Government
Order excluding the post of Junior
Engineers from the purview of the
Commission and also the validity of the
decision by the Government to regularise
the services of the temporary employees.
While conceding the Government's power
of framing Regulations excluding any
post under the proviso to Article 320 (3) it
was urged before the Supreme Court that
since the advertisement had been issued
by the Commission inviting applications

1 AIR 1982 SC 1955
for the post of Junior Engineers and
Commission was in process of selecting
candidates, the power under the proviso to
clause
(3)
of
Article
320
of the
Constitution could not be exercised. The
Hon'ble Supreme Court rejected the
contention
with
the
following
observation:

"The only contention urged was that
at the time when the advertisement was
issued the post of Junior Engineer was
within the purview of the Commission
and even if at a later date the post was
withdrawn from the purview of the
Commission it could not have any
retrospective effect. There is no merit in
this contention and we are broadly in
agreement with the view of the Tribunal
that inviting the applications for the post
does not by itself create any right to the
post in the candidate who in response to
the advertisement makes an application.
He only offers himself to be considered
for the post. His application only makes
him eligible for being considered for the
post. It does not create any right in the
candidate to the post".

7. Reliance was, however, placed for
the petitioners on a decision of the
Supreme Court in State of Andhra
Pradesh Vs. T. Ramakrishna Rao and
others2. The respondents therein were
candidates for the post of District Munsif
in Andhra Pradesh State Judicial Services
which were to be filled in by direct
recruitment
as
distinguished
from
recruitment by promotion. Rule 5 of the
Andhra Pradesh Judicial Service Rules
empowered the Commission to prepare a
list
of
persons
considered
fit
for
appointment to the post of District

2 AIR 1972 SC 2175.
2All] Surendra Kumar Singh and another V. State of U.P. and another

124
Munsifs "after holding such examination,
if any, as the Governor may think
necessary". Rule 5 thus conferred on the
Governor a discretion to decide whether
an examination should be held or not or if
held, whether it should be written or oral.
The question arose as to whether Rule 5
was a conditional legislation properly
promulgated in exercise of power under
Article 234 and after consulting the High
Court and the Commission. The Andhra
Pradesh High Court held that Rule 5 in so
far as it empowered the Government to
determine whether an examination was
necessary or not and the pattern of such
an examination contravened Article 234
and was therefore, void, it further held
that the said Government orders made
under Rule 5 were also void having been
issued under an invalid rule. In substance
the High Court held that the Commission
could not hold the examination under the
said Government orders and issued a
direction upon the Commission to that
effect. The Governor subsequently issued
an amended Rule 5 after consultation with
the High Court. The commission then
proposed to call fresh applications and
hold the examination for the purpose of
filling in the vacancies of District
Munsifs. Before the High Court a
question was raised that the candidates
who had applied before the amended
Rules could not be subjected to written
examination under the amended Rule as it
was prospective and therefore, it was
urged that their applications should be
proceeded with on the basis of oral test
only. The High Court rejected the
contentions as regards the written and oral
test and held that the Commission was
entitled to make a selection by first
screening the candidates through the
written test and make selection by oral
test from amongst those who qualified for
being called for interview. The High
Court, however, directed the Commission
to hold a separate examination for those
who had applied under the amended Rule
in respect of original 60 vacancies and to
call separate applications and hold a
separate examination for the remaining
140 vacancies. The reason given for such
a direction was that if the respondents
were required to file fresh applications
and made to appear in the examination
alongwith the rest of the applicants there
would be violation of Article 14. The
Supreme Court held that the direction
given
by
the
High
Court
was
unsustainable. The Supreme Court further
held that the Commission and State were
perfectly justified in fixing a date for
examination
and
calling
for
fresh
applications for all the vacancies to enable
the Commission to prepare an approved
list under amended Rule 5 and observed
thus :

"The only direction which becomes
necessary is that if any of the respondents
or other candidates who had applied in
1968 has by this time become age barred
by reason of the delay in holding the
examination, he should not be disqualified
from appearing in the examination if he
was of the qualified age at the time when
he had filed his application."

8. These observations, in my
opinion, were made by the Apex Court
under Article 142 of the Constitution.
This Court has no such power and cannot
issue a direction which may lead to
violation of statutory Rules if the
direction is carried out. The Supreme
Court has very clearly held that the
candidates
who
had
applied
under
unamended Rules did not acquire any
right by merely applying for the post
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

125
either under that Rule or otherwise to be
selected for the posts.

9. It is true that the respondents have
given age relaxation in respect of certain
posts even though under the Rules there
exists no provision for age relaxation
unlike Rule 9 of the U.P. Subordinate
Executive
Services
(Naib
Tehsildar)
Rules, 1978 which enables the relaxation
in age limit. There being no enabling
provision
in
the
Rules
governing
appointment to the post in question and
even the requisition received by the
Public Service Commission from the
Transport Commissioner did not visualise
for age relaxation to candidates who were
within the prescribed age limit as per
advertisement no. 2/96-97, relaxation in
age limit if granted will be illegal. If the
respondents
granted
age
relaxation
illegally that by itself is no ground to
direct them to repeat the same illegality in
respect of the petitioners as well. Article
14 of the Constitution is attracted in such
cases.

10. So far as argument based on
Section 6 of U.P. General Clauses Act,
1904 is concerned, suffice it to say that it
saves "any right, privilege, obligation or
liability acquired, accrued or incurred
under any enactment so repealed" and
"any remedy or any investigation or legal
proceeding
commenced
before
the
repealing Act in respect of any such right
privilege, obligation, liability .........". As
stated (Supra) the petitioners acquired no
right to be considered by the U.P. Public
Service Commission merely because they
had applied pursuant to the advertisement
issued earlier by the U.P. Subordinate
Services
Commission.
"What
is
unaffected by the repeal of a Statute is a
right 'acquired' or 'accrued' under it and
not a mere 'hope or expectation of'
acquiring a right or liberty to apply for it.
It is true that right to be considered for
appointment is a fundamental right but
right to be considered means right to be
considered according to Rules. The
petitioners became over-aged on the cutoff-date namely, 1.7.1999 as prescribed in
the
advertisement
no.
A-2/E-1/98-99
issued by the U.P. Public Service
Commission on 6.9.1998 and as laid
down in the U.P. Transport (Subordinate)
Technical Service Rules, 1980 which
defines 'year of recruitment' to mean 'the
period of 12 months commencing from 1st
day of July of a calendar year' and rule 10
of the said rule provides that a candidate
for direct recruitment must have attained
the age of 21 years and must not have
attained the age of more than 28 years on
January 1 of the year in which recruitment
is to be made, if the posts are advertised
during the period January 1 to June 30
and on July 1 if the post are advertised
during the period July 1 to December 31.
The upper age limit has been enhanced to
32 years and Rules 10, to the extent of
inconsistency with the U.P. State Services
(Age Limit) Rules, 1972 as amended by
Vth Amendment Rules, 1984, ceased to
operate. The advertisement issued by the
U.P. Public Service Commission cannot
be
treated
as
continuation
of
the
advertisement/proceeding
earlier
issued/commenced
by
the
U.P.
Subordinate
Services
Commission.
Benefit of age relaxation cannot be given
to the petitioners except on pains of
violating the fundamental right of equality
of similarly circumstanced candidates
who accepted the advertisement and did
not apply being over aged.

11. In view of the above discussion,
I find no merits and the writ petitions are
2All] Dr. Anirudh Pradhan V. Chancellor, Purvanchal University, Jaunpur and others

126
accordingly dismissed. I make no order as
to cost.

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By the Court

1. The petitioner, a Reader in Hindu
Degree
College,
Jamania,
District
Ghazipur staked his claim of being senior
most teacher in the college. His claim
came to be obligated by the Vice
Chancellor, Purvanchal University as well
as the Chancellor, Jaunpur by means of
the orders impugned herein. The college
is affiliated to the Purvanchal University,
Jaunpur and the provisions of the U.P.
State Universities Act, 1973 and those of
the First Statutes of the Gorakhpur
University are admittedly applicable to
this college.

2. The case has a chequered history.
The minimal facts necessary to highlight
the controversy involved in the case may
be stated thus. The petitioner was
appointed Lecturer (Mathematics) in the
college
21.02.1977
on
the
recommendation dated 27.05.1992 of a
duly constituted selection committee he
was
appointed
Reader
pursuant
to
resolution
dated
18.05.1992
of
the
Committee
of
Management.
The
petitioner took charge of the post of the
Reader by submitting as application is
respect thereof to the Principal of the
college on 19.05.1992. The petitioner was
so
promoted
in
accordance
with
Government Order No. 91/G.I./15-11-8814(5)/87 dated 07.01.1989. It is alleged in
the petition that at the relevant time, the
petitioner happened to be the only Reader
in the college staking his name to be
placed at S. No. 1 in the seniority list of
the teachers of the college in view of
Statute 18.05 read with Statute 11.16 of
the Statutes of the First Statutes of the
Deen
Dayal
Upadhyay
University,
Gorakhpur
in
short
'the
Gorakhpur
University'
which
are
admittedly
applicable to the Purvanchal University,
Jaunpur. The Principal declined the
request of the petitioner to be treated as
the senior most teacher of the college by
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

127
order dated 14.08.1992 against which the
petitioner preferred an appeal to the Vice
Chancellor,
Purvanchal
university,
Jaunpur. It appears that the said appeal
remained pending for a long tine and
feeling aggrieved by the failure of the
Vice Chancellor to take decision within a
reasonable time, the petitioner preferred a
writ petition which came to be disposed
of vide judgement and order dated
25.01.1995 directing the Vice Chancellor
to decide the petitioner's appeal within a
period
of
two
months.
The
Vice
Chancellor
vide
his
order
dated
22.08.1995 decided the appeal in favour
of the petitioner and declared him senior
to other teachers of the college in view of
the Statute 18.05. But on receipt of
representations from respondents teachers
the Vice Chancellor by his subsequent
order
dated
31.08.1995
stayed
the
operation of the earlier order dated
22.08.1995. However, in a writ petition
filed by the petitioner this Court by its
interim order dated 24.01.1996 directed
that the order of the Vice Chancellor
dated
31.08.1995
would
remain
inoperative until further orders. The Vice
Chancellor by his order dated 27.06.1996
directed the Principal of the College who
was due to retire w.e.f. 30.06.1996 to
hand over the charge of his post to Rama
Shankar Singh, respondent no. 4.

3. The petitioner felt aggrieved and
filed writ petition no. 21412 of 1996
challenging
the
order
of
the
Vice
Chancellor dated 27.06.1996. This court
by
a
common
judgement
dated
23.07.1996 finally disposed of the two
writ petitions thereby relegating the
petitioner to avail of the alternative
remedy under Section 68 of the U.P. State
Universities Act, 1973 by means of
representation to the Chancellor. As an
interim measure, the court, however,
directed that the order of the Vice
Chancellor in favour of Dr. Rama
Shankar Singh would be confined only for
the time allowable under the statute
depending upon final outcome of the
reference under Section 68 of the State
Universities Act, 1973. Statute 13.20, it
may be observed gives a discretion to the
Vice Chancellor to direct "any teacher" to
act as officiating Principal for a period of
three months. Thereafter the senior most
teacher is to officiate as Principal in case
regular Principal is not appointed in the
meantime. In view of the judgement of
the Court, the University by letter dated
02.08.1996 directed Sri Rama Shankar
Singh to hand over the charge of post of
the Principal to the petitioner who would
act as such until assumption of charge by
regularly appointed Principal or until an
order was passed by the Vice Chancellor.
Consequently
upon
said
order
the
petitioner, it is stated, acquired charge of
the post of Principal on 03.08.1996. Rama
Shankar Singh preferred a Special Leave
Petition against the judgement and order
dated 23.07.1996 of the Court. It may be
observed that on behalf of Shri Rama
Shankar Singh an argument was advanced
before the Supreme Court that the order
of the Vice Chancellor dated 22.08.1995
was an ex-party order and therefore, it
must be set aside. On behalf of the
petitioner it was urged that the Vice
Chancellor had no jurisdiction to review
or recall his order. The Special Leave
Petition came to be disposed of by the
Supreme Court vide judgement and order
dated 26.08.1996 with the direction that
since the Vice Chancellor had entertained
the application of Sri Ram Shankar Singh
seeking review or recall of the order dated
22.08.1995 and had also passed an order
of stay dated 31.08.1995, he must dispose
2All] Dr. Anirudh Pradhan V. Chancellor, Purvanchal University, Jaunpur and others

128
of the application filed by Rama Shankar
Singh.
The
Supreme
Court
while
disposing of the Special Leave Petition,
however, made it clear that the question
as to power of the Vice Chancellor to
review or recall the order 22.08.1995
could be "raised by Sri Anirudh Pradhan
before the Vice Chancellor himself".

4. Pursuant to the aforesaid direction
of the Supreme Court the Vice Chancellor
took up the matter and declared by his
order dated 18.11.1996 that Sri N.N.
Srivastava happened to be the senior most
teacher of the college while Sri Rama
Shankar Singh and the petitioner were
held to be 2nd and 7th in the order of
seniority. The Vice Chancellor, however,
did not decide the question as to whether
he had the jurisdiction to review his order
dated
22.08.1995.
The
petitioner
thereafter filed a writ petition being Civil
Misc. Writ Petition No. 38916 of 1996
which came to be disposed of finally vide
judgement and order dated 03.12.1996
with the direction that the petitioner had
an alternative remedy under Section 68 of
the U.P. State Universities Act and in the
event of his availing the said remedy, the
Chancellor
would
decide
the
representation "positively within a period
of four months in accordance with law
after hearing the parties by a speaking
order". The Chancellor by his order dated
29.12.1997 remanded the matter to the
Vice Chancellor for decision afresh after
taking into consideration the issue as to
whether he had the power to review/recall
his earlier order dated 22.08.1985. The
Vice Chancellor by his order dated
23.03.1998 maintained his earlier order
dated
18.11.1996
and
rejected
the
petitioner's application dated 10.01.1998
whereby he had sought for direction to be
handed over charge of the post of
Principal. The petitioner again challenged
this order before the Chancellor by means
of representation under Section 68 of the
U.P. State Universities Act, 1973. The
representation came to be rejected by
Chancellor by means of the impugned
order dated 11.03.1999.

We
have
heard
Sri
Gajendra
Pratap for the petitioner and Sri S.P.
Singh for the contesting respondents.

5. The Vice Chancellor in his order
dated 23.3.1998 while maintaining his
earlier order dated 18.11.1996 has heavily
relied
on
Government
order
dated
16.12.1994 in which it has been provided
that conferment of the designation of
Reader
to
a
Lecturer
under
the
Government order would not affect his
seniority. The Government order to the
extent of repugnancy has however been
held vide judgement dated 15.05.1997 to
be ultra vires the provisions of Statute
18.05
of
Deen
Dayal
Upadhyay
University, Gorakhpur according to which
Reader is to be treated senior to Lecturer.
The Government Order dated 16.12.1994
having been held to be ultra vires, stands
obliterated and therefore the decision
taken by the Vice Chancellor relying upon
the Government Order dated 16.12.1994
stands vitiated. Even the Chancellor has
accepted this legal position in the
impugned order but then instead of setting
aside the order passed by the Vice
Chancellor, the Chancellor relegated the
matter to the State Government as in his
opinion it involved a policy decision. The
Chancellor, in our opinion, fell in to error
in not giving effect to the law as declared
by
the
High
Court
declaring
the
Government Order dated 16.12.1994 as
ultra vires the Statutes to the extent of its
repugnancy. Seniority of teachers in the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

129
same cadre and same grade is to be
determined with reference to the date of
appointments and according to Statute
18.05 the Professor shall be deemed to be
senior to every Reader and the Reader
shall be deemed to be senior to every
Lecturer. Concededly the petitioner was
conferred the designation and grade of
Reader earlier in point of time than the
contesting
respondents
and
therefore
according to the Statute 18.05 he would
be deemed to be senior to the contesting
respondent albeit as Lecturer he was
junior to the contesting respondents.

6. The impugned order passed by the
Vice Chancellor cannot be sustained on
yet another ground. The Vice Chancellor
has no power to review an order passed
on merit1 except where the order sought to
be reviewed was obtained by 'fraud or
misrepresentation"2. The petitioner was
earlier declared by the Vice Chancellor
vide order dated 18.07.1995 to be the
senior most teacher of the college. The
U.P. State Universities Act, 1973 and the
Statutes made thereunder do not confer
any power in the Vice Chancellor to
review his decision. The Vice Chancellor
was not justified in recalling his earlier
order dated 22.08.1995 in the absence of a
clear cut finding that the earlier order was
obtained by "fraud or misrepresentation of
such a dimension as would affect the very
basis of the claim". Mere fact that the
interested persons were not heard before
passing the order dated 22.08.1995 was
not sufficient to recall it, if it was not
"wrangled
through
fraud
or

1 Smt. Shiv Raji V. Deputy Director of
Consolidation, 1997 ACJ 908 (F.B.)
2 United India Insurance Co. Ltd. Versus
Rajendra Singh, JT 2000(3) SC 151: Shafiq
Versus Deputy Director of Consolidation,
1994 R.D.59.
misrepresentation of such a dimension
that would affect the very basis of the
claim". The Chancellor having accepted
the
petitioner's
contention
that
the
Government
Order
dated
16.12.1994
would not override the statutory provision
contained in the Statute 18.05 ought to
have set aside the order passed by the
Vice Chancellor instead of referring the
matter to the Government. Statutory
obligation cast upon the chancellor under
Section 68 of the U.P. State Universities
Act, 1973 cannot be delegated to the
Government even if the decision involves
a policy decision. The observation that the
question
as
to
whether
the
Vice
Chancellor had the power to review/recall
his earlier order dated 22.08.1995 has
become insignificant and subordinate is
based
on
misconstruction
of
the
judgement dated 15.05.1997 rendered by
the Court in writ petition no. 5078 of
1995.

7. In the result the writ petition
succeeds and is allowed. The impugned
orders dated 13.11.1996 and 23.03.1998
passed by the Vice Chancellor and the
one dated 11.03.1999 passed by the
Chancellor are quashed. Respondents are
directed to treat the petitioner as senior
most teacher of the college and permit
him to work as officiating Principal till
selection and appointment of a regular
Principal or till he attains the age of
superannuation whichever is earlier.
2All] Jai Shanker Mishra V. State of U.P. and others

130
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By the Court

1. Heard Sri Siddarth Srivastava,
learned counsel for the Petitioner, Sri
R.K. Tewari, learned counsel for the
Respondent and perused the record.

2. Jai Shanker Mishra (petitioner)
filed this petition under Article 226,
Constitution of India in March,1998 after
serving a copy this petition, as required
under Rules of Court in the office of
Chief Standing Counsel.

3. No Counter Affidavit has been
filed in spite of opportunity to the
respondent.

4. Perusal of the order passed by the
concerned Government authority dated
18th March, 1998 shows that petitioner
was restrained from discharging his duties
on
the
allegation
that
some
First
Information Report (no details given) was
lodged against him on the ground of
obtaining initial appointment with the
help of alleged forged document (no
details given). In pursuance, thereof,
impugned order dated 24th March, 1998
(Annexure-1 to the Writ Petition) has
been consequently issued by Prabhari
Chikitsa
Adhikari/Medical
Officer,
Rajkiya Homeopathic Chikitsylay Kathari
Maharajganj
on
the
ground
that
appointment
of
the
petitioner
was
suspicious and he was not an employee of
the Department.

5. Earlier Petitioner was asked not to
discharge his duties till conclusion of an
alleged enquiry on the allegation of his
appointment
being
doubtful.
This
compelled him to file writ petition no.
11917 of 1993 (Jai Shankar Mishra
Versus State of U.P. and others). In the
said petition an interim order was passed,
which reads:-