# Surwase v. Kranti Junior Adhyapak Mahavidyalaya, 2013 (10) SCC 324, Court said

- **Citation:** (2021) 8 ILRA 761
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-27
- **Case number:** Service Single No. 14891 of 2020
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surwase-v-kranti-junior-adhyapak-mahavidyalaya-2013-10-scc-324-court-said-47306
- **Pages:** 11

## Headnote

A. Service Law - Education - Absorption -
U.P. State Universities Act, 1973; U.P.
High Education Service Commission Act,
1980: Sections 12, 13 and 31-E (1)- U.P.
High
Education
Services
Commission
(Third Amendment) Act, 2006 - The
principles of natural justice are to be
followed where valuable right of the
employee is going to be affected. In the
present case, taking into consideration the
requirement as prescribed under absorption
Rules the petitioner was absorbed on the post
of Lecturer in Education and thereafter, the
order impugned was passed without giving her
notice or opportunity of hearing. Thus, the order
being violative of principles of natural justice
cannot be sustained. (Para 11)

B. Absorption on the post in Education
cannot be cancelled on the ground that
the petitioner did not have requisite
qualification
at
the
time
of
initial
appointment. The petitioner was selected by
the selection committee on the post of Part-time
Teacher and continued to discharge her duties
on the said post and was paid salary from the
State Exchequer. Before the enforcement of
Rules, she acquired requisite qualification and
after due consideration of the claim of the
petitioner she was absorbed in service as
Lecturer in Education, therefore after lapse of
almost 22 years the appointment on the post of
Lecturer cannot be held to be illegal. (Para 12,
18, 19)

It is the case of the petitioner that as per the
amended provisions incorporated under the Act,
the petitioner was fulfilling all eligibility criteria
which was required for the grant of absorption.
The petitioner was M.A. with more than 55%
marks and Ph.D. in the concerned subject
obtained in 2001, thus the petitioner was
eligible and qualified for absorption on the date
when his claim for absorption was considered by
the respondents. She was absorbed vide order
dated 29.05.2017 which has been cancelled vide
the impugned order dated 20.08.2020 on the
ground that at the time of initial appointment
the
petitioner
did
not
have
requisite
qualification. (Para 13)

C. Petitioner has been working on the post
of Lecturer since 1998 and at no point of
time
objection
was
raised
by
the
respondents w.r.t. requisite qualification,
therefore the objection taken at this
juncture is not permissible in the eyes of
law. (Para 15)

Writ petition allowed. (E-3)

Precedent followed:

## Text

8 All. Dr. Ratna Shukla Vs. State of U.P. & Ors.
761

23. In K.S. Ravindran Vs Branch
Manager, New India Assurance Company
Ltd., 2015 (7) SCC 222, Court referred to
legal principles laid down in its earlier
decision in Mohan Lal Vs Bharat Electronics
Ltd., 1981 (3) SCC 225 and quoted the
following observation:

"But there is a catena of decisions
which rule that where the termination is illegal
especially where there is an ineffective order
of retrenchment, there is neither termination
nor cessation of service and a declaration
follows that the workman concerned continues
to be in service with all consequential
benefits." (emphasis added)

24. Earlier, in Deepali Gundu
Surwase
v.
Kranti
Junior
Adhyapak
Mahavidyalaya, 2013 (10) SCC 324, Court
said;

"The very idea of restoring an
employee to the position which he held before
dismissal or removal or termination of service
implies that the employee will be put in the
same position in which he would have been
but for the illegal action taken by the
employer. The injury suffered by a person,
who is dismissed or removed or is otherwise
terminated from service cannot easily be
measured in terms of money. With the passing
of an order which has the effect of severing the
employer employee relationship, the latter's
source of income gets dried up. Not only the
concerned employee, but his entire family
suffers grave adversities. They are deprived of
the source of sustenance. The children are
deprived
of
nutritious
food
and
all
opportunities of education and advancement
in life. At times, the family has to borrow from
the relatives and other acquaintance to avoid
starvation. These sufferings continue till the
competent adjudicatory forum decides on the
legality of the action taken by the employer.
The reinstatement of such an employee, which
is preceded by a finding of the competent
judicial/quasi judicial body or Court that the
action taken by the employer is ultra vires the
relevant statutory provisions or the principles
of natural justice, entitles the employee to
claim full back wages." (emphasis added)

5. Considering the entirety of the issue
and the decision of this Court in re;
U.P.S.R.T.C. (supra), I find that the impugned
order dated 25.11.2017 passed by opposite
party no.3 is not sustainable in law, therefore,
the same is liable to be set aside being
arbitrary and violative of Article 14 of the
Constitution of India.

6. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari is
issued quashing the impugned order dated
25.11.2017 passed by opposite party no.3. A
writ in the nature of mandamus is issued
commanding the opposite parties to make
payment of full back wages to the petitioner
with all consequential benefits including
seniority etc., with promptness, preferably
within a period of two months from the date
of receipt of certified copy of this order,
failing which the petitioner shall be entitled
for the interest at the rate of 8% from the date
the dues accrued till the date of its actual
payment.

7. No order as to costs.
----------
(2021)08ILR A761
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 14891 of 2020

Dr. Ratna Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
762 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Laltaprasad Misra, Prafulla Tiwari

Counsel for the Respondents:
C.S.C., Sudeep Kumar

A. Service Law - Education - Absorption -
U.P. State Universities Act, 1973; U.P.
High Education Service Commission Act,
1980: Sections 12, 13 and 31-E (1)- U.P.
High
Education
Services
Commission
(Third Amendment) Act, 2006 - The
principles of natural justice are to be
followed where valuable right of the
employee is going to be affected. In the
present case, taking into consideration the
requirement as prescribed under absorption
Rules the petitioner was absorbed on the post
of Lecturer in Education and thereafter, the
order impugned was passed without giving her
notice or opportunity of hearing. Thus, the order
being violative of principles of natural justice
cannot be sustained. (Para 11)

B. Absorption on the post in Education
cannot be cancelled on the ground that
the petitioner did not have requisite
qualification
at
the
time
of
initial
appointment. The petitioner was selected by
the selection committee on the post of Part-time
Teacher and continued to discharge her duties
on the said post and was paid salary from the
State Exchequer. Before the enforcement of
Rules, she acquired requisite qualification and
after due consideration of the claim of the
petitioner she was absorbed in service as
Lecturer in Education, therefore after lapse of
almost 22 years the appointment on the post of
Lecturer cannot be held to be illegal. (Para 12,
18, 19)

It is the case of the petitioner that as per the
amended provisions incorporated under the Act,
the petitioner was fulfilling all eligibility criteria
which was required for the grant of absorption.
The petitioner was M.A. with more than 55%
marks and Ph.D. in the concerned subject
obtained in 2001, thus the petitioner was
eligible and qualified for absorption on the date
when his claim for absorption was considered by
the respondents. She was absorbed vide order
dated 29.05.2017 which has been cancelled vide
the impugned order dated 20.08.2020 on the
ground that at the time of initial appointment
the
petitioner
did
not
have
requisite
qualification. (Para 13)

C. Petitioner has been working on the post
of Lecturer since 1998 and at no point of
time
objection
was
raised
by
the
respondents w.r.t. requisite qualification,
therefore the objection taken at this
juncture is not permissible in the eyes of
law. (Para 15)

Writ petition allowed. (E-3)

Precedent followed:

1. M.S. Mudhol & anr. Vs S.D. Halegkar & ors.,
(1993) 3 SCC 591 (Para 16, 18)

2. Mrs. Rekha Chaturvedi Vs University of
Rajasthan & ors., (1993) 2 BLJR 854 (Para 17)

Present
petition
assails
order
dated
20.08.2020,
whereby
the
order
of
absorption on the post of Lecturer in
Education has been cancelled by the
respondents.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Dr. L.P. Misra, learned
counsel for the petitioner, Shri Satrughan
Chaudhary,
learned
Additional
Chief
Standing Counsel appearing for respondent
nos.1,2 and 3 and Shri Sudeep Kumar,
learned counsel for the respondent no.4.

2. By means of the present writ
petition, the petitioner is challenging an
order dated 20.08.2020 (Annexure no.1 to
the writ petition) whereby the order of
absorption on the post of Lecturer in
Education have been cancelled by the
respondents
with
further
prayer
for
issuance of direction to the respondents to
treat the petitioner as absorbed Lecturer
and pay her salary as was being paid prior
to the impugned order.
8 All. Dr. Ratna Shukla Vs. State of U.P. & Ors.
763

3. Facts of the case are that Navyug
Kanya Post Graduate Maha Vidyalaya,
Rajendra Nagar, Lucknow (hereinafter
referred to as 'College') is a post of
Graduate Degree College affiliated to
Lucknow
University.
The
service
conditions of the teachers of the College
are governed in accordance with the
provisions contained under the U.P. State
Universities Act, 1973, First Statute of
Lucknow University made under the said
Act and the Higher Education Service
Commission Act, 1980 together with the
Government Orders issued from time to
time under the aforesaid enactments. In the
year 1980, the State Government enacted as
Act known as U.P. Higher Education
Service
Commission
Act
(hereinafter
referred to as Act, 1980) and the object to
enact the said Act was to maintain high
standard of education in the affiliating
private degree and post graduate colleges in
the entire State of Uttar Pradesh and
affiliated with the different Universities.

The
State
Government
vide
Government
Order
dated
7.4.1998
authorized the Committee of Management
of affiliated Degree and Post Graduate
Colleges to appoint ad-hoc teachers subject
to certain conditions laid down in the
Government Order and one of the condition
mentioned in the Government Orders was
that the "appointment shall be till 30th
June, 1999" or till "duly selected candidates
by
the
Higher
Education
Service
Commission joins the post whichever is
earlier". Another condition mentioned in
the Government Order was that a fresh
selection shall be made before expiry of the
session.

Pursuant
to
the
aforesaid
Government Order issued by the State
Government,
the
Committee
of
Management of the College advertised the
post of Lecturer teaching B.Ed. Classes and
an order dated 17.09.1998 was issued by
the
Director
of
Higher
Education,
Allahabad
approving
the
petitioner's
appointment as such on a fixed honorarium
of Rs.5,000/- per month. Pursuant to the
approval
order
dated
17.9.1998,
an
appointment order dated 22.09.1998 was
issued to the petitioner who joined as
teacher for imparting education in B.Ed.
On the same date i.e. 22.09.1998.

The petitioner being aggrieved by
the condition mentioned in the Government
Order dated 07.4.1998 that her appointment
will continue till 30th June, 1999, preferred
Writ Petition No.1163 (SB) of 1999 titled
'Ratna Shukla v. State of U.P. and others'
and the ssame was allowed by this Court
vide judgment and order dated 7.4.2000
thereby holding that the petitioner be
allowed to continue till the time appropriate
regularly selected incumbents joins the
respective post. Pursuant to the judgment
and order dated 07.04.2000 passed by this
Court,
an
appointment
letter
dated
17.4.2000 was issued in favour of the
petitioner wherein it was mentioned that
the petitioner shall continue to work till
duly selected candidate by the U.P. Higher
Education Service Commission joins the
post.
The
petitioner
completed
her
Doctorate of Philosophy (Ph.D.) in the year
2001.

The State Government in order to
absorb the teacher on honorarium who
were working continuously in grant-in-aid
college for a minimum period of three
academic
session
till
the
date
of
commencement of the Uttar Pradesh
Higher Education Services Commission
(Third Amendment) Act, 2006 promulgated
the Act known as Uttar Pradesh Higher
Education Services Commission (Third
Amendment)
Act,
2006
(hereinafter
referred to as Act, 2006). Undisputedly, the
764 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner was working till the date of
commencement of the aforesaid Act, 2006
and she also completed minimum period of
three academic session w.e.f. 2003 to 2006
and she was conferred Ph.D. in the year
2001. A bare perusal of Section 31-E(1)
reveals that the State Government while
promulgating
the
said
Act
wrongly
mentioned the word "cannot be filled",
inasmuch as there could not be any vacancy
which could not be filed under Sections 12
and 13 of the U.P. Higher Education
Service Commission Act, 1980.

The State Legislature in order to
rectify the Legislative oversight enacted the
Uttar Pradesh (Amendment) Act, 2014 by
means of which the words "cannot be
filled" occurring in Section 31-E(1) of the
Uttar Pradesh Higher Education Services
Commission Act, 1980 were substituted by
the words "could not be filled". The
petitioner was absorbed vide order dated
18.05.2017 passed by the respondent no.2
against the post lying vacant in Khun Khun
Ji Girls Post Graduate College, Lucknow in
furtherence of recommendations made by
the statutory committee under Section 31-E
of the Act, 2006. Pursuant to the order of
absorption being passed by the respondent
no.2, the Manager of Khun Khun Ji Girls
Post
Graduate
College
issued
the
appointment
letter
dated
29.05.2017
directing the petitioner to give joining in
the College within 15 days on the post of
Lecturer
in
B.Ed.
Department.
The
petitioner gave her joining on the post of
Lecturer in B.Ed. Department of Khun
Khun Ji Girls Post Graduate College,
Lucknow on 31.5.2017 and since then she
is continuously teaching.

Now after a lapse of about more
than 3 years as regular teacher and after
putting of more than 22 years of total
service, respondent no.2 has passed the
impugned
order
dated
20.08.2020
cancelling the order of absorption dated
18.05.2017. A bare perusal of the impugned
order reveals that the impugned exercise
has been undertaken on the basis of
recommendation made by a Committee
constituted for the purpose of reexamining
the
educational
qualifications
of
the
absorbed teachers but at no point of time
the said committee gave any opportunity of
hearing to the petitioner and also did not
issue any show cause notice to the
petitioner to have her say in the matter. The
impugned exercise has been undertaken on
the ground that the petitioner did not
possess
the
requisite
educational
qualification
of
Ph.D./NET/SLET
prescribed
by
the
U.G.C./
State
Government at the time of her initial
appointment which apart from being illegal
and
arbitrary
is
also
against
the
prescriptions contained in Section 31-E(1)
of the U.P. Higher Education Service
Commission Act, 1980 in terms of which
the petitioner was absorbed.

4. Submission of Dr. L.P. Misra,
learned counsel for the petitioner is that
prior to passing the impugned order, no
notice nor opportunity of hearing was
provided to the petitioner, thus his
submission is that the order is in violation
of principles of natural justice. His next
submission is that although at the time of
selection, the petitioner was not having
PH.D. degree but under the amendment
incorporated under the Statute Book by
making
amendment
in
U.P.
Higher
Education Services Commission Act by
adding Section 31-E(1) it was provided that
those teachers who are working on
honorarium basis if they are having
requisite qualification on the date of
amendment, their candidature shall be
considered for absorption on the post of
Lecturer.
8 All. Dr. Ratna Shukla Vs. State of U.P. & Ors.
765

5. Learned counsel for the petitioner
next submits that the date of amendment is
28th December, 2006 prescribing cut of
date for the requisite eligibility criteria
which was required to be fulfilled on the
date
of
consideration
of
claim
for
absorption. It is the case of the petitioner
that at the time of consideration of claim of
the petitioner, she was fulfilling the
requisite
qualification
for
absorption,
therefore, cancelling the absorption on the
ground that the petitioner was not having
requisite qualification at the time of initial
appointment on honorarium basis is per se
illegal and the order cannot be sustained.

6. Learned counsel next submits that
in the amendment word 'can' was used,
therefore no absorption/ regularization
could not have been made by the
respondents and it was subsequently
amended and in place of word 'can', word
'could' was added, therefore, absorption
proceeding was initiated and absorption
was made.

7. Learned counsel next submits that
the petitioner has been discharging her
duties since 22.9.1998 on honorarium basis
and subsequently, her appointment has been
regularized by absorbing her on the post of
Lecturer in Education. Therefore, after such
a long delay there was no occasion on the
part of the respondents to cancel absorption
on the ground that the petitioner was not
having requisite qualification at the time of
initial appointment. In this view of the
matter, the order is bad in law and cannot
be sustained.

8. On the other hand, Shri Satrughan
Chaundary,
learned
Additional
Chief
Standing
Counsel
submits
that
in
paragraphs 4 and 6 of the counter affidavit,
objection has been taken in support of the
impugned order that the petitioner was
having no requisite qualification, therefore,
she was not entitled to be absorbed on the
post of Lecturer in Education. Thus, his
submission
is
that
the
order
under
challenge is just and valid and does not
suffer from infirmity or illegality.

9. Shri Sudeep Kumar, learned
counsel for the respondent-Committee of
Management submits that the appointment
of the petitioner was made by following the
selection process on the post of Lecturer on
honorarium basis. The Director of Higher
Education
approved
selection
and
appointment
of
the
petitioner
and
thereafter, he joined in the institution and
started discharging her duties with full
satisfaction
and
was
paid
salary
accordingly.

10. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

11. In regard to first submission of Dr.
L.P. Misra, learned counsel for the
petitioner that the order has been passed in
violation of principles of natural justice, I
have perused the impugned order. On its
perusal, the order does not disclose that at
any point of time the petitioner was issued
notice prior to passing the impugned order.
Therefore, the submission of learned
counsel that the order is in violation of
principles of natural justice has substance.
Accordingly, this Court holds that the order
has been passed in utter disregard of
principles of natural justice. The principles
of natural justice is to be followed where
valuable right of the employee is going to
be effected. Here in the present case, taking
into consideration the requirement as
prescribed under absorption Rules the
petitioner was absorbed on the post of
766 INDIAN LAW REPORTS ALLAHABAD SERIES
Lecturer in Education and thereafter, the
order impugned was passed without giving
her notice or opportunity of hearing. Thus,
the order being violative of principle of
natural justice cannot be sustained.

12. In regard to second submission of
learned counsel for the petitioner that the
appointment of the petitioner was made by
following procedure prescribed under law
on the post of Lecturer in Education on
honorarium basis which was duly approved
by the Director of Higher Education and
thereafter, approval was granted by the
Director of Higher Education and in
pursuance thereof, the petitioner continued
to discharge her duties for long spell of
time and the family members of the
petitioner were dependent upon the income
of
the
petitioner,
the
appointment/
absorption after such a long delay cannot
be termed to be illegal on the count that the
petitioner
was
not
having
requisite
qualification at the time of his initial
appointment.
In
the
provision
of
absorption, the required qualification was
as under:-

"31-E(1) Subject to the provisions
contained in Sections 12 and 13, if any
vacancy exists, which cannot be filled
under the provisions of the said sections, a
teacher on honorarium shall be absorbed
in the manner prescribed under sub-Section
(2), who is working in grant-in-aid college,
possessing
educational
qualifications
determined by the State Government,
receiving honorarium thereby working for
a minimum period of three academic
sessions and has been working till the date
of commencement of the Uttar Pradesh
Higher Education Services Commission
(Third Amendment) Act, 2006.

(2)
Where
any
substantive
vacancy in the post of a teacher in a grantin-aid college is to be filled by direct
recruitment, such post shall, at the instance
of
the
Director,be
offered
by
the
management to teacher on honorarium
referred to in sub-section (1).

(3)
Where
any
teacher
on
honorarium
who
has
been
offered
appointment
in
accordance
with
the
provisions of sub-section (2) fails to join
the post within the time allowed, which
shall not be less than fiften days, his further
claim shall cease automatically."

13. It is the case of the petitioner that
as per the amended provisions incorporated
under the Act, the petitioner was fulfilling
all eligibility criteria which was required
for the grant of absorption. The petitioner
was M.A. with more than 55 % marks and
Ph.D. in the concerned subject obtained in
2001, thus the petitioner was eligible and
qualified for absorption on the date when
his claim for absorption was considered by
the respondents. Therefore, on the ground
that the petitioner was not having requisite
qualification
at
the
time
of
initial
appointment cannot be made a ground for
cancellation of her absorption on the post in
Education. The submission advanced by the
learned counsel for petitioner in this regard
is accepted and the order impugned being
non-consideration of the aforesaid aspect of
the matter is illegal and bad in the eyes of
law.

14. The submission of learned
Additional Chief Standing Counsel that the
order of absorption has been cancelled on
the ground that the petitioner was not
having requisite qualification at the time of
initial appointment is not accepted, once
her absorption was made in accordance
with the provisions contained under the
amended Act on which date the petitioner
was eligible and qualified.
8 All. Dr. Ratna Shukla Vs. State of U.P. & Ors.
767

15. It is relevant to point out that
since 1998 the petitioner has been working
on the post of Lecturer and at no point of
time objection has been raised by the
respondents
in
regard
to
required
qualification on the basis of which her
absorption has been cancelled, therefore the
objection taken at this juncture is not
permissible in the eyes of law.

16. The Hon'ble Supreme Court in the
case of M.S. Mudhol and another v. S.D.
Halegkar and others reported in (1993)3
SCC 591 while dealing with the matter of
an employee, who was holding the post of
Principal from year 1981 and at the first
time his appointment was challenged in
year 1990 i.e. after a lapse of about nine
years, has held as under:

"5. As regards the teaching
experience, the 1st respondent's contention
is that he had worked as a teacher for 9
years in a High School and Higher
Secondary School which had upto 11
standards. According to him, he also
worked as a Lecturer in History. His
further contention is that the post of the
School Inspector in Karnataka where he
was working as such and that of the
teacher were interchangeable. Hence the
selection
committee
had
taken
into
consideration his experience in both the
capacities. These facts are not controverted
before us and in any case today, he has the
requisite experience of teaching as he has
been teaching the 11th and the 12th class
continuously for 12 years now, since 1981.
It can, therefore, be said that at least as on
date when his removal from the post of
Principal is sought, he cannot be said to be
disqualified on account of the lack of
required teaching experience.

6. Since we find that it was the
default on the part of the 2nd respondent,
Director
of
Education
in
illegally
approving the appointment of the first
respondent in 1981 although he did not
have the requisite academic qualifications
as a result of which the 1st respondent has
continued to hold the said post for the last
12 years now, it would be inadvisable to
disturb him from the said post at this late
stage particularly when he was not at fault
when his selection was made. There is
nothing on record to show that he had at
that time projected his qualifications other
than what he possessed. If, therefore,
inspite of placing all his cards before the
selection
committee,
the
selection
committee for some reason or the other had
thought it fit to choose him for the post and
the
2nd
respondent
had
chosen
to
acquiesce in the appointment, it would be
inequities to make him suffer for the same
now. Illegality, if any, was committed by the
selection
committee
and
the
2nd
respondent. They are alone to be blamed
for the same.

7. Whatever may be the reasons
which were responsible for the nondiscovery of the want of qualifications of
the 1st respondent for a long time, the fact
remains that the Court was moved in the
matter after a long lapse of about 9 years.
The post of the Principal in a private
school though aided, is not of such
sensitive public importance that the Court
should find itself impelled to interfere with
the appointment by a writ of quo warranto
even assuming that such a writ is
maintainable. This is particularly so when
the incumbent has been discharging his
functions continuously for over a long
period of 9 years when the court was
moved and today about 13 years have
elapsed. The infraction of the statutory rule
regarding
the
qualifications
of
the
incumbent pointed out in the present case is
also
not
that
grave
taking
into
768 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration all other relevant facts. In the
circumstances, we deem it unnecessary to
go into the question as to whether a writ of
quo warranto would lie in the present case
or not, and further whether mere laches
would disentitle the petitioners to such a
writ.

8. However, we must make it clear
that in the present case the 2nd respondent,
Director of Education had committed a clear
error of law in approving the academic
qualifications of the 1st respondent when he
was not so qualified. As pointed out above,
the interpretation placed by him and the other
respondents on the requisite educational
qualifications was not correct and the
appointments made on the basis of such
misinterpretation are liable to be quashed as
being illegal. Let this be noted for future
guidance."

17. The similar view has been taken
in the case of Mrs. Rekha Chaturvedi v.
University of Rajasthan and others
reported in (1993)2 BLJR 854, wherein
the University invited applications vide
advertisement
dated
12.10.1983
for
appointment on ten posts of Assistant
Professors (Lecturers). The last date for
submitting the application was 14.11.1983.
Out of 112 applications received, the
scrutiny committee of the University
recommended
106
candidates
on
25.04.1984 for being interviewed. The
remaining 6 candidates were found uneligible for the post. Out of 106 candidates
so recommended, only 65 candidates
appeared in the interview, out of which the
scrutiny committee selected 8 candidates.
Out of 8 candidates, 2 candidates were
earmarked for reserved category post.
Taking into consideration the dispute and
the provisions contained under the Act of
the
University
and
statute
framed
thereunder, the Court has held as under:

"12. The contention that the
required qualifications of the candidates
should be examined with reference to the
date of selection and not with reference to
the last date for making applications has
only to be stated to be rejected. The date of
selection is invariably uncertain. In the
absence of knowledge of such date the
candidates who apply for the posts would
be unable to state whether they are
qualified for the posts in question or not, if
they are yet to acquire the qualifications.
Unless the advertisement mentions a fixed
date
with
reference
to
which
the
qualifications are to be judged, whether the
said date is of selection or otherwise, it
would not be possible for the candidates
who
do
not
possess
the
requisite
qualifications in praesenti even to make
applications for the posts. The uncertainty
of the date may also lead to a contrary
consequence, viz., even those candidates
who do not have the qualifications in
praesenti and are likely to acquire them at
an uncertain future date, may apply for the
posts
thus
swelling
the
number
of
applications. But a still worse consequence
may follow, in that it may leave open a
scope for malpractices. The date of
selection may be so fixed or manipulated as
to entertain some applicants and reject
others, arbitrarily. Hence, in the absence of
a
fixed
date
indicated
in
the
advertisement/notification
inviting
applications with reference to which the
requisite qualifications should be judged,
the only certain date for the scrutiny of the
qualifications will be the last date for
making
the
applications.
We
have,
therefore, no hesitation in holding that
when the selection Committee in the
present case, as argued by Shri Manoj
Swarup,
took
into
consideration
the
requisite qualifications as on the date of
selection rather than on the last date of
8 All. Dr. Ratna Shukla Vs. State of U.P. & Ors.
769
preferring applications, it acted with patent
illegality, and on this ground itself the
selections in question are liable to be
quashed. Reference in this connection may
also be made to two recent decisions of this
Court in A.P. Public Service Commission,
Hyderabad & Anr. v. B. Sarat Chandra &
Ors. (1990) 4 SLR 235 and The District
Collector
&
Chairman,
Vizianagaram
(Social Welfare Residential School Society)
Vidanagaram & Anr. v. M. Tripura Sundari
Devi (1990) 4 SLR 237.

13. However, for the reasons which
follow, we are not inclined to set aside the
selections in spite of the said illegality. The
selected candidates have been working in the
respective posts since February 1985. We are
now in January 1993. Almost eight years
have elapsed. There is also no record before
us to show as to how the Selection Committee
had proceeded to weigh the respective merits
of the candidates and to relax the minimum
qualifications in favour of some in exercise of
the discretionary powers vested in it under
the
University
Ordinance.
If
the
considerations which weighed with the
Committee
in
relaxing
the
requisite
qualifications were valid, 'it would result in
injustice to those who have been selected. We,
however, feel it necessary to emphasise and
bring to the notice of the University that the
illegal practices in the selection of candidates
which have come to light and which seem to
be followed usually at its end must stop
forthwith. it is for this purpose that we lay
down the following guidelines for the future
selection process:

(a) The University must note that
the qualifications it advertises for the posts
should not be at variance with those
prescribed by its ordinance/Statutes.

(b) The candidates selected must
be qualified as on the last date for making
applications for the posts in question, or on
the date to be specifically mentioned in the
advertisement/notification for the purpose.
The
qualifications
acquired
by
the
candidates after the said date should not be
taken into consideration, as that would be
arbitrary and result in discrimination. It
must be remembered that when the
advertisement/notification represents that
the candidates must have the qualifications
in question, with reference to the last date
for making the applications or with
reference to the specific date mentioned for
the purpose, those who do not have such
qualifications do not apply for the posts
even though they are likely to acquire such
qualifications and do acquire them after the
said date. In the circumstances, many who
would
otherwise
be
entitled
to
be
considered and may even be better then
those who apply, can have a legitimate
grievance since they are left out of
consideration.

(c). When the University or its
Selection Committee relaxes the minimum
required
qualifications,
unless
it
is
specifically
stated
in
the
advertisement/notification both that the
qualifications will be relaxed and also the
conditions on which they will be relaxed,
the relaxation will be illegal.

(d)
The
University/Selection
Committee must mention in its proceedings
of selection the reasons for making
relaxations, if any, in respect of each of the
candidates in whose favour relaxation is
made.

(e) The minutes of the meetings of
the
Selection
Committee
should
be
preserved for a sufficiently long time, and if
the selection process is challenged until the
challenge is finally disposed of. An adverse
inference is liable to be drawn if the
minutes are destroyed or a plea is taken
that they are not available.

14.
Although,
therefore,
for
reasons
stated
above,
we
deem
it
770 INDIAN LAW REPORTS ALLAHABAD SERIES
inadvisable to interfere in the selections
made in the present case, we direct that the
University and its Selection Committee
should observe the above norms in all
future selections."

18. In the case of M.S. Mudhol
(Supra), at the time of initial appointment
the 1st respondent was lacking requisite
qualification for appointment. He continued
to discharge his duty and obtained
sufficient experience and qualification
required for the appointment on the post of
Principal. Taking into consideration the
default on the part of the respondentDirector of Education in approving the
appointment of the 1st respondent to the
appeal, the Supreme Court held that due to
illegal order of approval passed by the
Director
of
Education,
the
teacher
continued to hold the post of twelve years,
therefore it would be inadvisable to disturb
him from the said post at this late stage
particularly when he was not at fault when
his selection was made. It was also held
that it is not projected that he produced
otherwise qualification as he possessed.
The selection committee for the some
reason or the other had thought it fit to
choose him for the post and ultimately
appointed and thereafter, he continued to
discharge his duty. Therefore, Hon'ble
Supreme Court while holding that it is the
Director of Education who had committed
error
in
approving
the
academic
qualification of the teacher, although he
was
not
so
qualified
and
acquired
qualification
while
teaching
in
the
institution, dismissed the appeal.

Here, in the present case pursuant
to the selection proceeding the petitioner
applied for appointment on the post of Parttime Teacher and disclosed the qualification
which he was having and appointment was
made thereafter. She continued to discharge
her duties on the post of Lecturer and in the
meantime she acquired Ph.D. degree which
is the sufficient qualification for absorption
prior to enforcement of the U.P. Higher
Education Services Commissioner (Third
Amendment) Act, 2006. She was absorbed
vide order dated 29.5.2017 which has been
cancelled vide the impugned order dated
20.8.2020 on the ground that at the time of
initial appointment the petitioner was not
having requisite qualification. In view of
the fact that the petitioner continued to hold
the post of Lecturer since long and was
subsequently
acquired
the
requisite
qualification of Ph.D., her claim for
absorption was considered in accordance
with U.P. Higher Education Services
Commissioner (Third Amendment) Act,
2006 and she continued to discharge her
duties on the said post. In view of the
above, the judgment rendered in the Case
of M.S. Mudhol (supra) is fully applicable
to the case of the present facts and
circumstances of the case.

19. In regard to case of Mrs. Rekha
Chaturvedi (supra), she was granted
appointment
in
pursuance
to
an
advertisement issued on 12.10.1983 on the
post of Assistant Professor who was not
having requisite qualification. The Hon'ble
Supreme Court refused to set aside the
selection in spite of the said illegality
considering the fact that the selected
candidates have been working in the
respect post since February, 1985 and the
matter came for consideration in January,
1993 at least 8 years were elapsed. It has
further been recorded that there was no
record before the Court to show as to how
the selection committee had proceeded to
weigh
the
respective
merits
of
the
candidates and to relax the minimum
qualifications in favour of some in exercise
8 All. Bhawani Prasad Pandey & Ors. Vs. State of U.P.
771
of discretionary powers vested in it under
the
University
Ordinance.
If
the
considerations which weighed with the
Committee
in
relaxing
the
requisite
qualifications were valid, it would result
injustice to those who have been selected
and thereafter held that it is necessary to
emphasis and bring to the notice of the
University that the illegal practices in the
selection of candidates which have come to
light and which seem to be followed and
ultimately refused to interfere in the
selection made by the selection committee.

The ratio of judgment in the case of
Mrs. Rekha Chaturvedi (supra) is also
fully applicable to the present facts and
circumstances of the case. The petitioner was
selected by the selection committee on the
post of Part-time Teacher and continued to
discharge her duties on the said post and was
paid salary from the State Exchequer. Before
the enforcement of Rules, he acquired
requisite
qualification
and
after
due
consideration of the claim of the petitioner he
was absorbed in service as Lecturer in
Education, therefore after lapse of almost 22
years the appointment on the post of Lecturer
cannot be held to be illegal.

20. Considering in totality of facts
and circumstances of the case as well as the
law laid down by Hon'ble Supreme Court,
the order impugned dated 20.08.2020
passed by respondent no.2 being not
sustainable in law is set aside. The writ
petition succeeds and is hereby allowed.
However, the respondents are directed to
permit the petitioner to discharge her duties
on the post of Lecturer in Education
treating her absorbed Lecturer and to pay
her monthly salary month by month as and
when became due, inasmuch as arrears of
salary with effect from 20.8.2020 till date
within a period of three months from the
date of production of a certified copy of
this order..

21. No order as to costs.
----------
(2021)08ILR A771
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No 45 of 1996

Bhawani Prasad Pandey & Ors.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.K. Chaturvedi, Sri Ram Prakash Rai

Counsel for the Opposite Party:
G.A., Sri Rudra Kant Mishra

A. Indian Penal Code (45 of 1860) -
Section 149 - Common object - existence
of
common
object
before
the
commencement
of
the
fight
is
not
necessary - It is enough if the common
object is adopted by all the accused -
Common object could develop co-instanti
and being a question of fact it can also be
inferred and deduced from the facts and
circumstances of a case (Para 8)

Dispute was between complainant- Bhragunath
Pandey and accused persons - accused-persons
armed with lathi-danda and started altercation
with the complainant- Bhragunath Pandey and
his family members - Injured Sri Ram Pandey
intervened in the matter - Sri Ram Pandey took
the side of the complainant - On this, the
accused persons started to assault him with
lathi-danda - Held - accused adopted, common
object and assaulted Sri Ram Pandey with lathidanda in furtherance of the said common object
- Section 149 applicable (Para 8)