# Sushil Kumar Dubey v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 348
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-10
- **Case number:** Writ-A No. 1223 of 2006
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-dubey-v-state-of-u-p-ors-49614
- **Pages:** 6

## Headnote

Law-
U.P.
Intermediate
Education Board Act-Section 16 E (11)-UP
High School and Intermediate College(
Payment of salaries to teachers and
employees) Act, 1971-Petitioners claim to
be Teachers L.T. Grade seeking regular
payment of salary and non-interference in
regular functioning of the petitionersPetitioners
was
appointed
as
adhoc
teachers but they did not get any salary
despite several request made by them-No
doubt a temporary vacancy can be filled
by management in case of an exigency
but the petitioners could not allowed to be
continue on the said post for perpetuity
without his appointment having been
referred to selection committee-Judgment
passed by Apex Court in Sanjay Singh's
case and the compliances made by the
State
leading
to
the
conducting
of
examination/interview and preparation of
panel sent to the DIOS, nothing survives
to be decided.(Para 1 to 11)
The writ petitions are disposed of. (E-6)

List of Cases cited:

## Text

348 INDIAN LAW REPORTS ALLAHABAD SERIES
Allahabad, within four weeks from the date
of order.

18. Learned A.G.A. to communicate
the order and ensure compliance.
----------
(2023) 1 ILRA 348
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.01.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 1223 of 2006
with other connected cases

Sushil Kumar Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Har Govind Singh Parihar

Counsel for the Respondents:
C.S.C.

A.
Service
Law-
U.P.
Intermediate
Education Board Act-Section 16 E (11)-UP
High School and Intermediate College(
Payment of salaries to teachers and
employees) Act, 1971-Petitioners claim to
be Teachers L.T. Grade seeking regular
payment of salary and non-interference in
regular functioning of the petitionersPetitioners
was
appointed
as
adhoc
teachers but they did not get any salary
despite several request made by them-No
doubt a temporary vacancy can be filled
by management in case of an exigency
but the petitioners could not allowed to be
continue on the said post for perpetuity
without his appointment having been
referred to selection committee-Judgment
passed by Apex Court in Sanjay Singh's
case and the compliances made by the
State
leading
to
the
conducting
of
examination/interview and preparation of
panel sent to the DIOS, nothing survives
to be decided.(Para 1 to 11)
The writ petitions are disposed of. (E-6)

List of Cases cited:
1. Sanjay Singh & ors.. Vs St. of U.P & ors.. Civil
Appeal No. 8300 of 2016

2. Vinod Kumar Yadav Vs St. of U.P. Writ-A No
95 of 2011

3. St. of Punj. & anr. Vs Devans Modern
Dreweries Ltd. & anr. (2004) 11 SCC 26

(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Shri H.J.S. Parihar, learned
Senior Counsel assisted by Mrs. Meenakshi
Singh Parihar for the petitioner. Shri Ashish
Kumar Pathak, Mrs. Alka Verma, Shri
Anand Dubey, Shri Anupam Shukla, Shri
I.P. Singh, Shri R.D. Shahi, Shri S.S.
Rajawat, Shri Bhanu Bajpai, Shri Pradeep
Kumar Singh, Shri Firoz Ahmad Khan,
Shri Chandrashekhar Singh, , Shri Alok
Srivastava, Shri Prashant Kumar Singh,
Shri S. Chandra, Shri Vinod Kumar Gupta,
Shri Ravikant Mishra, Shri Ajay Kumar
Singh, Shri P.K. Singh, Shri Pawan Kumar
Pandey, Shri G.C. Verma, Shri Y.K. Mishra,
Shri Ansuman Singh, Shri Ashutosh Shahi,
Shri Ganesh Nath Mishra, Shri Sanjay
Mishra, Shri Ramchandra Gupta, Shri
Rajendra Pratap Singh, Shri Alok Pandey,
Shri Udai bhan Pandey, Shri Shashank
Singh, Shri Kshemenda Shukla, Shri
Jitendra Kumar Pandey, Shri Vinod Kumar
Srivastava, Shri Anupam Mehrotra, Shri
Krishna Kumar Dubey are present for the
petitioners. Shri Badrish Kumar Tripathi,
learned Counsel Shri V.P. Nag & Shri
Gopal Kumar Srivastava, learned Standing
Counsel are present for the opposite parties.

2. The Petitioners in this leading Writ
Petition claim to be Teachers L.T Grade
and as such have knocked the door of this
Court, thereby seeking regular payment of
1 All. Sushil Kumar Dubey Vs. State of U.P. & Ors.
349
salary,
arrears
of
salary
from
their
respective date of joining and noninterference by the respondents in regular
functioning of these Writ Petitioners on the
post of Assistant Teachers L.T. Grade in
their respective institution.

3. Since common issue has been raised
in this bunch of matter, they are being taken up
together for disposal. In order to appreciate the
controversy in these bunch of writ petition, it
would be appropriate to curl the facts of any
writ petition and for the limited purpose, the
fact of leading Writ Petition bearing no. 1223
of 2006 (Sushil Kumar Dubey vs. State of U.P
& Ors.), is being taken for consideration. The
Petitioner in the said Writ Petition claims to be
fully qualified for appointment to the post of
Assistant Teacher L.T Grade and having been
appointed on a vacant post. The Petitioner
claims pursuant to the arising of the said
vacancy, the post was advertisement and he
applied in view of the said advertisement. It is
the case of the petitioner that he had been post
on the post of Assistant Teacher L.T Grade
pursuant to a resolution dated 15.07.2003
issued by the managing committee of the
intermediate college, Newadhiya District
Jaunpur. The Petitioner claims to have been
issued appointment letter on 16.07.2003 and
joined on the said post on 18.07.2003 and his
name being sent to the office of the District
Inspector of schools on 21.07.2003. In view of
his said appointment, the petitioner claimed
that although several request were made by
him to the Manager and Principal of Institution
for payment of salary however the same was
not released and on his inquiry to the District
Inspector of Schools, Jaunpur he was told that
the Secretary of Secondary Education,
Government of Uttar Pradesh has issued
circular dated 10.05.2002 mentioning therein
that no approval to the adhoc appointments be
made as there was no provision for making
adhoc appointment by the management.

4. Although, this court finds on fact
that the petitioner ought to be bound by the
circular as it was issued much prior to his
appointment and was commensurate to the
existing law relating to appointment under
the U.P Education Act, however the
petitioner claims that the Government has
no power to make adhoc appointment
under the rules or regulations framed under
U.
P
Secondary
Education
Service
Selection Board (U.P Act no. 5 of 1982) as
well as U.P Intermediate Education Board
Act as it is the Managing committee of an
institution, which has been vested with the
said power. Thus, it is the case of the
petitioner that the state government has no
power
and
authority
to
stop
the
management of its essential functions of
appointment of Teachers and Principal in
the name of grant in aid as his appointment
has been made by the Committee of
Management
in
exercise
of
powers
conferred under Section 16 E (11) of U. P
Intermediate Education Board Act read
with Regulation 9 of Chapter II of the U.P
Intermediate Education Board Act. He also
claims that since the post in question is
under grant in aid it is the responsibility of
the State Government to make payment of
his salary and any violation thereof is in the
teeth of the provisions contained under the
U. P High School and Intermediate
Colleges (payment of salaries to teachers
and other employees) Act, 1971. Thus, it
has been prayed by the petitioner that since
he has been continuously and regularly
working in the said post of Assistant
Teacher L.T Grade, he is entitled for salary
and arrears thereof.

5. This court finds profitable to quote,
section 16 E of the U. P Intermediate
Education Board Act, 1921, which provides
procedure for filling of temporary vacancy
of teachers and head of institutions. Sub -
350 INDIAN LAW REPORTS ALLAHABAD SERIES
section 11 of Section 16 E inter alia
provides as under: -

"Notwithstanding anything contained
in the foregoing sub sections, appointments
in the case of a temporary vacancy caused
by the grant of leave to an incumbent for a
period not exceeding six months or 1 [by
death, termination or otherwise] of an
incumbent occurring during an educational
session, may be made by direct recruitment
or promotion without reference to the
Selection Committee in such manner and
subject to such conditions as may be
prescribed.

[Provided that no appointment made
under this sub-section shall, in any case,
continue beyond the end of the educational
session during which such appointment was
made."

6. The aforesaid clause is an
exception
to
the
general
rule
that
recruitment or promotion can be made by
reference to the selection committee only
for all grant-in aid institutions. The said
non-obstante clause makes it loud and clear
that no doubt a temporary vacancy can be
filled by the management of the institution
in case of an exigency like death or
termination etc., during an educational
session, however it is also equally clear that
the same can be done for a period not
exceeding 6 months and in any case no
appointment can continue beyond the end
of the educational session during which
such appointment was made. Thus, on facts
of the case, it seems apparently the
petitioner could not allowed to be continue
on the said post for perpetuity without his
appointment having been referred to
selection committee.

7. However, this court finds that the
controversy relating to the issue being
raised in this bunch of matters has been
decided by the Hon'ble Supreme Court vide
Judgment dated 20.08.2020 passed in Civil
Appeal no. 8300 of 2016 (Sanjay Singh &
Ors. vs. State of U.P & Ors.), wherein the
Hon'ble Supreme Court in the said
judgment gave a slew of directions to the
commission in paras 7 to 11 of the
judgment relating to conducting of one
single examination, interview, weightage to
the persons who have worked as TGT or
Lecturers etc. etc. Seeing the number of
petitions engaging the attention of this
court on an issue, which stands already
decided by the Apex Court, it would be
pertinent to mention Para 7(e) of the said
direction which clearly says that the
decision taken by the commission shall be
final and no further litigation will be
entertained in respect thereof.

8. It is also reported that an M.A no.
818/2021 was also filed in the said Civil
Appeal no. 8300 of 2016 which was
decided on 07.12.2021 wherein the court
clarified that weightage will be given to
only those who have been found appointed
on adhoc basis following procedure as
prescribed under section 16 E (11) of the
Act. The Ld. Standing Counsel has
submitted that in compliance to the
directions passed by the Hon'ble Supreme
Court in the aforesaid Sanjay Singh's case
an advertisement was issued for selection
to the post of Assistant Teacher for which
test/interview was held on 07/08 of August,
2022 and similar advertisement was issued
for selection to the post of Lecturer for
which test/interview was held on 17/18 of
August, 2021. It is the further submission
of the Ld. Standing Counsel that after
holding the selection process which was
participated by total 1455 (1446 TGT and 9
Lecturer) candidates, who claimed to be
working on adhoc basis, only 126 adhoc
1 All. Sushil Kumar Dubey Vs. State of U.P. & Ors.
351
teachers on being verified were found to be
working and appointed as per Section 16 E
(11) of the Act. The Ld. Counsel submits
that due weightage were given to these
successful candidates and accordingly
panel has been sent to DIOS concerned.
Thus, he submits that in view of the
direction of the Hon'ble Apex court the
selection process were initiated, completed
and names of successful adhoc teachers
whose services could be verified has been
already sent to the DIOS and as such
nothing remains in the present bunch of
Writ Petitions as the writ petitioners have
no legally enforceable right to continue in
the respective institutions nor they may be
granted salary from the public ex chequer.

9. This court finds that a similar writ
petition as the present bunch of the writ
petition has been decided by a coordinate
bench of this court based on the judgment
passed by the Hon'ble Court in the aforesaid
Sanjay Singh's Case. The Ld. Coordinate
Bench in Writ - A No. 95 of 2011 (Vinod
Kumar Yadav vs. State of U.P), after
extensively quoting the judgment passed by
the Hon'ble Supreme Court in Sanjay Singh's
case has held as follows: -

"The petitioner has been working as
LT Grade Teacher in the opposite party no.
4-Institutoin in terms of the interim order
dated 11.01.2011, however, his rights, if
any, are now restricted in terms of the
judgment of Hon'ble the Supreme Court in
the case of Sanjay Singh (supra).

On being asked as to whether the
petitioner appeared in the selection held by
the Board in pursuance to the said
judgment vide advertisements No. 1 and 2
of 2021, learned counsel fairly submitted
that the petitioner did not appear.

In these circumstances, it is difficult to
pass any order in favour of the petitioner.

At this stage, learned counsel for the
petitioner
submitted
that
the
State
Government proposes to frame some policy
for adjustments of ad hoc teachers such as
the petitioner on honorarium basis. He says
that policy will be applicable only to those
Teachers who are still working on the date
of issuance of the policy.

On being asked, learned counsel for
the State and the petitioner's submitted that
the matter is still under consideration and
no policy has been issued by the State
Government as yet.

In this view of the matter, there is
nothing that this Court can do anything in
favour of the petitioner. The matter stands
concluded by the decision of Hon'ble the
Supreme Court in Sanjay Singh's case
quoted hereinabove, therefore, this writ
petition is disposed of in terms thereof."

10. Thus, this court is of the
considered opinion that all the issues raised
by the petitioner stands decided by the
Hon'ble Apex Court as well as by this court
in one matter or the other and the issues
raised are no longer res integra. Moreover,
this court cannot be oblivious of the law of
precedents, which forms the foundation of
administration of Justice and it has been
held time and again that a single Judge of a
High Court is ordinarily bound to accept as
correct judgments of Courts of coordinate
jurisdiction and of Division Benches and of
the Full Benches of his Court. The rule of
precedent is binding for the reason that
there me view as has been taken earlier.
The earlier decision of the coordinate
bench is binding upon any latter coordinate
bench deciding the same or similar issues.
If the latter bench wants to take a different
view than that taken by the earlier bench,
the proper course is for it to refer the matter
to a larger bench. The Apex Court in the
judgment reported in the State of Punjab
352 INDIAN LAW REPORTS ALLAHABAD SERIES
and another versus Devans Modern
Breweries ltd. and another, (2004) 11 SCC
26, held at paragraph 339 as follows:-

"339. Judicial discipline envisages
that a coordinate Bench follow the decision
of an earlier coordinate Bench. If a
coordinate Bench does not agree with the
principles of law enunciated by another
Bench, the matter may be referred only to a
Larger Bench. (See Pradip Chandra Parija
v. Pramod Chandra Patnaik, (2002) 1 SCC
1 followed in Union of India Vs. Hansoli
Devi, (2002) 7 SCC 273. But no decision
can
be
arrived
at
contrary
to
or
inconsistent with the law laid down by the
coordinate Bench. Kalyani Stores (supra)
and K.K. Narula (supra) both have been
rendered by the Constitution Benches. The
said decisions, therefore, cannot be thrown
out for any purpose whatsoever; more so
when both of them if applied collectively
lead to a contrary decision proposed by the
majority."

11. In view of the above and keeping
in mind the Judgment passed by the
Hon'ble Apex Court in Sanjay Singh's case
and
the
compliances
made
by
the
respondent-State leading to the conducting
of examination/interview and preparation
of panel sent to the DIOS, nothing survives
to be decided in these bunch of matters and
as such the present bunch of writ petitions
are DISPOSED OF in the said terms. It is
made clear that this court has not expressed
its view on any individual matters, which
nonetheless shall be guided on their own
merits and may also be entitled for the
benefits, if any, in case accrued to them as
per the judgment in Sanjay Singh's case
and the subsequent compliances made by
the State as aforesaid. There shall be no
order as to costs. is a desire to secure
uniformity and certainty in law. It is
expected that a coordinate bench must
follow the decision of another coordinate
bench and take the same view as has been
taken earlier. The earlier decision of the
coordinate bench is binding upon any latter
coordinate bench deciding the same or
similar issues. If the latter bench wants to
take a different view than that taken by the
earlier bench, the proper course is for it to
refer the matter to a larger bench. The Apex
Court in the judgment reported in the State
of Punjab and another versus Devans
Modern Breweries ltd. and another, (2004)
11 SCC 26, held at paragraph 339 as
follows:-

"339. Judicial discipline envisages
that a coordinate Bench follow the decision
of an earlier coordinate Bench. If a
coordinate Bench does not agree with the
principles of law enunciated by another
Bench, the matter may be referred only to a
Larger Bench. (See Pradip Chandra Parija
v. Pramod Chandra Patnaik, (2002) 1 SCC
1 followed in Union of India Vs. Hansoli
Devi, (2002) 7 SCC 273. But no decision
can
be
arrived
at
contrary
to
or
inconsistent with the law laid down by the
coordinate Bench. Kalyani Stores (supra)
and K.K. Narula (supra) both have been
rendered by the Constitution Benches. The
said decisions, therefore, cannot be thrown
out for any purpose whatsoever; more so
when both of them if applied collectively
lead to a contrary decision proposed by the
majority."

12. In view of the above and keeping
in mind the Judgment passed by the
Hon'ble Apex Court in Sanjay Singh's case
and
the
compliances
made
by
the
respondent-State leading to the conducting
of examination/interview and preparation
of panel sent to the DIOS, nothing survives
to be decided in these bunch of matters and
1 All. Rana Pratap Singh Chauhan Vs. State of U.P. & Ors.
353
as such the present bunch of writ petitions
are DISPOSED OF in the said terms. It is
made clear that this court has not expressed
its view on any individual matters, which
nonetheless shall be guided on their own
merits and may also be entitled for the
benefits, if any, in case accrued to them as
per the judgment in Sanjay Singh's case
and the subsequent compliances made by
the State as aforesaid. There shall be no
order as to costs.
----------
(2023) 1 ILRA 353
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 12434 of 2017

Rana Pratap Singh Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Piyush Shrivastava, Rajeev Shukla, Sanjeev
Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Qualifying Service For
Pension and Validation Act, 2021
-
Pension - Appointment on the substantive
vacancy - Period of adhoc service, how far
relevant to fix the pension - Held, once
the appointment is made against the
substantive vacancy following the rules,
service rendered in the adhoc capacity
must have been considered while fixing
the
pensionary
benefits
-
Non
consideration of adhoc services is bad and
contrary to settle proposition of law. (Para
13)
Writ petition allowed. (E-1)
List of Cases cited:

1. Service Single No. 5433 of 2013; Shiv
Shankar Vajpayee Vs St. of U.P. decided on
21.11.2014
2. Writ A No. 35301 of 2017; Bhanu Pratap
Singh Vs St. of U.P. & ors. decided on
06.10.2020
3. Appeal No. 6798 of 2019; Prem Singh Vs St.
of U.P.& ors.
4. Special Appeal No. 152 of 2021; St. of U.P.
through Secretary, Lok Niram Vibhag & ors. Vs
Bhanu Pratap decided on 14.7.2021
5. Writ A No. 15529 of 2018; Dr. Ram Sharan
Tripathi Vs St. of U.P. & anr. decided on
15.09.2021
6. Writ A No. 6583 of 2022; Dr. Anil Kumar
Singh Vs St. of U.P. & ors. decided on
30.09.2022
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State-respondents.

2. Present petition has been filed with
the following prayer:-

(i) Issue a writ, order or directing in
the nature of mandamus commanding the
opposite parties to calculate pension and
other post retiral benefits from the date of
his appointment as Ad-hoc employee i.e.
from 13.7.1978 and give the pension on the
basis of recalucated period of service and
furnish the arrears accumulated till date
alongwith time scale prescribed by the
Government of U.P."

3. At the very outset, learned counsel
for the petitioner submitted that he is not
pressing his prayer so far relate to grant of
time scale. He further requested that he
may be permitted to pursue his remedy