# Tapeshwar Prasad Gautam v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 485
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-02
- **Case number:** Civil Misc. Writ Petition No. 15950 of 2012
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tapeshwar-prasad-gautam-v-state-of-u-p-and-others-42211
- **Pages:** 3

## Headnote

C.S.C.

U.P.
Secondry
Education
Service
Selection Board, Act 1982-Section 16
(2)-payment
of
salary-petitioner
appointed as Assistant Teacher simply
on
application
without
following
procedures
of
appointment-without
creation of Post-claiming salary on basis
of Apex Court direction in Chandigarh
Administration Case-held-misconceived
in view of Gopal Dubey (FB) Case-salary
can not be paid from state fundappointment
being
contractual-can
pursue Civil suit against Manager.

Held: Para 9

In view of the aforesaid, no relief as
prayed for by the petitioner can be
granted. The petitioner has not been
able to demonstrate that he has been
appointed in the institution under the
provisions
of
the
Intermediate
Education Act or under the provisions of
the U.P. Act No. 05 of 1982. The
appointment of the petitioner appears
to be purely contractual. The petitioner
may seek his remedy, qua payment of
salary, against the manager by way of
Civil Suit.
Case law discussed:
2000 (2) SCC 42; 1999 (1) UPLBEC 01

## Text

1 All] Tapeshwar Prasad Gautam V. State of U.P. and others
485
therefore, liable to be dismissed and is,
accordingly, dismissed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 15950 of 2012

Tapeshwar Prasad Gautam ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Lalji Chaudhary

Counsel for the Respondent:
C.S.C.

U.P.
Secondry
Education
Service
Selection Board, Act 1982-Section 16
(2)-payment
of
salary-petitioner
appointed as Assistant Teacher simply
on
application
without
following
procedures
of
appointment-without
creation of Post-claiming salary on basis
of Apex Court direction in Chandigarh
Administration Case-held-misconceived
in view of Gopal Dubey (FB) Case-salary
can not be paid from state fundappointment
being
contractual-can
pursue Civil suit against Manager.

Held: Para 9

In view of the aforesaid, no relief as
prayed for by the petitioner can be
granted. The petitioner has not been
able to demonstrate that he has been
appointed in the institution under the
provisions
of
the
Intermediate
Education Act or under the provisions of
the U.P. Act No. 05 of 1982. The
appointment of the petitioner appears
to be purely contractual. The petitioner
may seek his remedy, qua payment of
salary, against the manager by way of
Civil Suit.
Case law discussed:
2000 (2) SCC 42; 1999 (1) UPLBEC 01

(Delivered byHon'ble Arun Tandon, J. )

1. Petitioner before this Court seeks
a writ of mandamus directing the
respondents to pay salary to the petitioner
in the grade of Rs.5500-9000 w.e.f.
15.07.1996 along with interest through an
account payee cheque, in the alternative
to consider and decide his representation
dated 19.01.2012.

2. It is the case of the petitioner that
Jai Sat Gurudev Janta Inter College,
Dullahpur, Ghazipur is an institution
recognized under the provisions of the
Intermediate Education Act, 1921 (herein
after referred to as the Act, 1921). It is
further stated that the institution has been
taken on grant-in-aid list in the year 1983
and the provisions of U.P. Act No. 24 of
1971 were made applicable to the said
institution. In paragraph 5 of the writ
petition, it is stated that the petitioner was
appointed as Assistant Teacher (Social
Science) vide letter dated 10.07.1996. He
joined the institution on 15.07.1996. The
respondent, Committee of Management,
is
not
making
payment
of
salary
admissible to the post of Assistant
Teacher of an Intermediate College. On
the contrary petitioner is being paid a
meager amount. It is submitted that the
petitioner is discharging the same duties
as are being discharged by any other
Assistant
Teachers
working
in
the
institution.

3. Reliance has been placed upon the
judgment of the Hon'ble Supreme Court
in
the
case
of
Chandigarh
Administration and others vs. Mrs.
486 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Rajni Vali and Others reported in 2000
(2) SCC, 42 wherein it has been held that
the salary to be paid by the unaided
institution must be at par with that paid by
institutions receiving grant-in-aid. It is
stated that a hostile discrimination is
being practiced by the Committee of
Management in the matter of payment of
salary to the teachers who have been
appointed against non sanctioned post like
the petitioner and those who have been
appointed by the management against
sanctioned post.

4. This Court may record that the
case set up by the petitioner is wholly
misconceived. From the appointment
letter enclosed as Annexure-1 to the writ
petition, it is apparently clear that the
Manager of the institution has recorded
that on an application being made by the
petitioner, the Committee of Management
has decided to appoint the petitioner as
Assistant Teacher and order was being
issued for his joining on 01.07.1996.
Petitioner joined in pursuance thereof.

5. Counsel for the petitioner could
not demonstrate that such appointment
offered to the petitioner was against any
sanctioned post available in the institution
duly created under Section 9 of the U.P.
Act No. 24 of 1971. For this reason only,
the petitioner cannot claim salary from the
State exchequer in view of the Full Bench
judgment of this Court in the case of
Gopal Dubey Vs. District Inspector of
Schools,
Maharajganj;
1999
(1)
UPLBEC, 01) wherein it has been held
that the liability of the State to make
payment of salary is only against the posts
duly created under Section 9 of the U.P.
Act No. 24 of 1971.

6. Even otherwise, this Court may
record that under Section 16 of the U.P.
Secondary Education Services Selection
Board Act, 1982 (herein after referred to
as the Act, 1982) it has been provided that
all
appointments
in
recognized
Intermediate institutions shall be made on
the recommendation of the Selection
Board, except where the appointments are
ad hoc or as contemplated under other sub
sections of Section 16 of the Act, 1982
and the Rules framed thereunder from
time to time. Section 16(2) declares
appointment
made
contrary
to
the
provisions of the Act as void ab initio. It
is admitted on record that the petitioner
has
not
been
appointed
on
the
recommendation of the Selection Board
nor his appointment is covered by any
other clause of Section 16 of the Act,
1982. Therefore, the appointment of the
petitioner has to be treated as void.

7. If the case of the petitioner is that
he has been appointed against the post of
Assistant Teacher in respect of Subject
wherein recognition has been granted
under Section 7-AA of the Act, 1921 i.e.
Self Finance, then the payment of salary
has to be made in accordance with the
Government Order issued for the purpose
but there is no such pleading in the
present petition.

8. The claim of parity has also to be
rejected by this Court inasmuch as the
Hon'ble Supreme Court has repeatedly
held that the nature and the manner of
appointment, the qualifications prescribed
etc. can be a reasonable basis for denying
the parity of salary.

9. In view of the aforesaid, no relief
as prayed for by the petitioner can be
granted. The petitioner has not been able
1 All] Smt. Rekha V. Smt. Veermati and another
487
to demonstrate that he has been appointed
in the institution under the provisions of
the Intermediate Education Act or under
the provisions of the U.P. Act No. 05 of
1982. The appointment of the petitioner
appears to be purely contractual. The
petitioner may seek his remedy, qua
payment of salary, against the manager by
way of Civil Suit.

10. The judgment relied upon by the
counsel for the petitioner is clearly
distinguishable in the facts of the present
case.

11. For the reasons recorded above,
the present writ petition is dismissed.
---------
ORIGINAL JURISDICTIONAL
CIVIL SIDE
DATED: ALLAHABAD 13.04.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 18125 of 2012

Smt. Rekha

 ...Petitioner
Versus
Smt. Veermati and another

 ...Respondents

Counsel for the Petitioner:
Sri Ratnakar Upadhyaya

Counsel for the Respondents:
C.S.C.

Code
of
Civil
Procedure-Section-80Maintainability
of
Election
Petitiondefect of Non Compliance of 80 C.P.C.-
raised by individual and not by State
Govt.-held-in view of Full Bench decision
of Sunni Central Board-objection of non
compliance of 80 C.P.C.-can not be
raised by individuals-rejection orderproper.

Held: Para 4

In view of above exposition of law laid
down by Special Bench, it is quite clear
that objection with respect to want of
notice under Section 80 CPC cannot be
taken by a private individual since it is
for the benefit of Government and its
officials and, therefore, it can be taken
only by them and would be considered if
it is pressed by those for whose benefit
the provision has been made. A private
individual
cannot
challenge
the
proceeding by taking the plea of want of
notice under Section 80CPC.
Case law discussed:
2010 ADJ Page 1 (SFB) (LB); 1984 (2) SCC
627; (1900) ILR 24 (Mad.) 271; AIR 1969 SC
674; AIR 1978 SC 1608; AIR 1927 PC 176; AIR
1947 PC 197; AIR 1949 PC 143; AIR 1966 SC
1068; AIR 1958 SC 274; AIR 1955 SC 425; AIR
1964 SC 1300; AIR 2002 SC 1745; AIR 1981
Bombay 394; 1963 (1) SCR 657; 2001 (1) SCC
555; ILR (1903) 25 All 187; AIR (29) 1942
Bombay 339; AIR 1969 (Kerela) 280; AIR 1969
Alld. 161

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. This writ petition is directed
against the order dated 13.01.2012 passed
by District Judge, Baghpat whereby
objection with regard to defect in election
petition on account of non-compliance of
Section 80 C.P.C. has been rejected.

2. Besides that election petition is
not defective for non-compliance of
Section 80 C.P.C., this Court is also of the
view that such objection cannot be raised
at the instance of a private party if State
has not taken such an objection.

3. This issue has been considered by
a Special Bench of this Court in Sunni
Central Board of Waqfs Vs. Sri Gopal
Singh Visharad and others, 2010 ADJ
Page 1 (SFB)(LB) and in the judgment
delivered
by
myself
(concurred
by