# Tirthraj v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 638
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Writ-A No. 8517 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tirthraj-v-state-of-u-p-ors-51934
- **Pages:** 7

## Headnote

(A) Service Law - Regularisation of
teachers
-
Uttar
Pradesh
Secondary
Education (Service Selection Boards) Act,
1982 - unamended Section 18 - new
Section 33-G - Regularisation of certain
more appointments against short term
vacancies - The UP Intermediate Education
Act, 1921 - An employee should not be
deprived of any benefit or the provisions of
law only because of the fact that some
error has been committed by the employer
including the State and if it is so, the same
must be rectified - every order either
5 All. Tirthraj Vs. State of U.P. & Ors.
639
administrative or judicial must stand on its
own legs - State is a welfare State and
action of State must transpire that decision
taken by the State be fair, reasonable,
transparent and justifiable - Orders are not
like old wine becoming better as they grow
older.(Para - 8,14,19)

Adhoc teachers appointed under the Second
Removal of Difficulties or unamended Section 18
of Act, 1982 - Order were rejected by Regional
Level Committee - without considering their
records or providing them with an opportunity of
hearing - state government introduced Section
33-G to regularize their services. (Para - 4,5)

HELD: - Orders passed in writ petitions in a
cyclostyle manner without ensuring records from
the committee of management and the District
Inspector of Schools, resulting in infirmity and
erroneousness.
Impugned
order
quashed.
Matters relegated back to the Regional Level
Committees to pass orders afresh within three
months, after verifying records from the
committee
of
management
and
District
Inspectors of Schools. Scheme under Section 33G of the Act, 1982 must be strictly followed.
Petitioners are entitled to continue in service and
receive salary without further breaks. (Para - 20
to 24)

Writ Petitions Allowed. (E-7)

List of Cases cited:

Mohindhr Singh Gill & anr. Vs Chief Election
Commissioner, New Delhi & ors., (1978) 1 SCC 405

## Text

638 INDIAN LAW REPORTS ALLAHABAD SERIES

21.

Let
the
accused-applicant-
Krishna be released forthwith in the
aforesaid complaint case on anticipatory bail
till the conclusion of trial on furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the trial
court
concerned
with
the
following
conditions:-

1. The applicant shall not leave
India during the currency of trial without
prior permission from the concerned trial
Court.

2. The applicant shall surrender
his passport, if any, to the concerned trial
Court forthwith. His passport will remain in
custody of the concerned trial Court.

3. That the applicant shall not,
directly or indirectly, make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
them from disclosing such facts to the Court
or to any police officer;

4. The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence and the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law to ensure presence of
the applicants.

5. In case, the applicant misuses
the liberty of bail, the trial Court concerned
may take appropriate action in accordance
with law and judgment of Apex Court in the
case of Sushila Aggarwal and others Vs
State (NCT of Delhi) and another, (2020) 5
SCC 1.

6. The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in the
opinion of the trial court default of this
condition is deliberate or without sufficient
cause, then it shall be open for the trial court
to treat such default as abuse of liberty of his
bail and proceed against them in accordance
with law.

7. The trial court would make
every endeavor to conclude the trial of the
case within a period of six months in
accordance with law.

22. With the aforesaid directions, this
application stands disposed of finally.
----------
(2024) 5 ILRA 638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ-A No. 8517 of 2023
With
Other Connected Cases

Tirthraj ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Harsha Yadav

Counsel for the Respondents:
C.S.C.

(A) Service Law - Regularisation of
teachers
-
Uttar
Pradesh
Secondary
Education (Service Selection Boards) Act,
1982 - unamended Section 18 - new
Section 33-G - Regularisation of certain
more appointments against short term
vacancies - The UP Intermediate Education
Act, 1921 - An employee should not be
deprived of any benefit or the provisions of
law only because of the fact that some
error has been committed by the employer
including the State and if it is so, the same
must be rectified - every order either
5 All. Tirthraj Vs. State of U.P. & Ors.
639
administrative or judicial must stand on its
own legs - State is a welfare State and
action of State must transpire that decision
taken by the State be fair, reasonable,
transparent and justifiable - Orders are not
like old wine becoming better as they grow
older.(Para - 8,14,19)

Adhoc teachers appointed under the Second
Removal of Difficulties or unamended Section 18
of Act, 1982 - Order were rejected by Regional
Level Committee - without considering their
records or providing them with an opportunity of
hearing - state government introduced Section
33-G to regularize their services. (Para - 4,5)

HELD: - Orders passed in writ petitions in a
cyclostyle manner without ensuring records from
the committee of management and the District
Inspector of Schools, resulting in infirmity and
erroneousness.
Impugned
order
quashed.
Matters relegated back to the Regional Level
Committees to pass orders afresh within three
months, after verifying records from the
committee
of
management
and
District
Inspectors of Schools. Scheme under Section 33G of the Act, 1982 must be strictly followed.
Petitioners are entitled to continue in service and
receive salary without further breaks. (Para - 20
to 24)

Writ Petitions Allowed. (E-7)

List of Cases cited:

Mohindhr Singh Gill & anr. Vs Chief Election
Commissioner, New Delhi & ors., (1978) 1 SCC 405

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard learned counsels for the
petitioners and Sri Shailendra Kumar Singh,
learned Chief Standing Counsel and Sri
Vivek Shukla, learned Additional Chief
Standing Counsel for the State.

2.

Notices
to
the
concerned
respondents other than the State are hereby
dispensed with.

3. Core legal issues are common in all
bunch of the writ petitions, hence, the
members of Bar were invited to address and
all these writ petitions are decided by
common Judgment and order.

4. Chronic cases are brought before
this Court by way of the bunch of the writ
petitions wherein the petitioners have
assailed their respective orders of rejection
of regularisation, which were passed by the
Committee headed by the Joint Director of
Education of respective regions.

5. The crux of the issue is that the
petitioners were appointed either under the
Second Removal of Difficulties Order
framed under the Act No.5 of 1982 or under
unamended Section 18 of Uttar Pradesh
Secondary Education (Service Selection
Boards) Act, 1982 (hereinafter referred to as
'the Act 1982'. Subsequently, vide the UP
Act No.7 of 2016, a new Section 33-G is
inserted with effect from 22.3.2016, thus, it
was incumbent upon the Regional Level
Committee to thoroughly examine the case
of the petitioners but it's contended that the
Regional Level Committees, ignoring the
provisions of law and without ensuring the
records of each and every petitioners from
the committee of management concerned,
passed the orders.

6. Section 33-G is extracted as under:-

"33-G (1) Any teacher, other than
the Principal or the Head Master, who-

(a) was appointed by promotion or
by direct recruitment in the lecturer's grade
or trained graduate grade on or after August
7, 1993 but not later than January 25, 1999
against a short term vacancy in accordance
with paragraph 2 of the Uttar Pradesh
Secondary Education Services Commission
(Removal of Difficulties) (Second) order,
640 INDIAN LAW REPORTS ALLAHABAD SERIES
1981 as amended from time to time, and
such vacancy was subsequently converted
into a substantive vacancy;

(b) was appointed by promotion or
by direct recruitment on or after August 7,
1993, but not later than December 30, 2000
on adhoc basis against substantive vacancy
in accordance with Section 18, in the
Lecturer grade or Trained Graduate grade;

(c) possesses the qualifications
prescribed under, or is exempted from such
qualification in accordance with, the
provisions of the Intermediate Education
Act, 1921;

(d) has been continuously serving
the institution from the date of such
appointment up to the date of the
commencement of the Uttar Pradesh
Secondary Education Services Selection
Board (Amendment) Act, 2016:

(e) has been found suitable for
appointment in a substantive capacity by the
Selection Committee referred to in clause
(a) of sub-section (2) of Section 33-C in
accordance with the procedure prescribed
under clause (b) of the said sub-section;

Shall
be
given
substantive
appointments by the Management.

(2)(a) The names of the teachers
shall be recommended for substantive
appointment in order of seniority as
determined
from
the
date
of
their
appointment;

(b) if two or more such teachers
are appointed on the same date, the teacher
who is elder in age shall be recommended
first.

(3) Every teacher appointed in a
substantive capacity under sub-section (1)
shall be deemed to be on probation from the
date of such substantive appointment.

(4) A teacher who is not found
suitable under sub- section (1) and a teacher
who is not eligible to get a substantive
appointment under the said sub-section
shall cease to hold the appointment on such
date as the State Government may by order
specify.

(5) Nothing in this section shall be
contrued to entitled any teacher to
substantive appointment if on the date of the
commencement of the Uttar Pradesh
Secondary Education Services Selection
Board (Amendment Act), 2016 such vacancy
had already been filed or selection for such
vacancy has already been made in
accordance with this Act.

(6) The services of the adhoc
teachers and the teachers who have been
appointed against short term vacancies
shall be regularised from the date of
commencement of the Uttar Pradesh
Secondary Education Services Selection
Board (Amendment Act), 2016.

(7) Reservation Rules shall be
followed in regularization of adhoc teachers
and teachers who are appointed against
short term vacancies.

(8) Adhoc teachers, who have not
been appointed either in accordance with
the Uttar Pradesh Secondary Education
Services
Commission
(Removal
of
Difficulties) Order, 1981 or in accordance
with Section 18 of the Uttar Pradesh
Secondary Education Services Selection
Board Act, 1982 and are otherwise getting
salary only on the basis of interim/Final
orders of the court shall not be entitled for
regularization."

7. While promulgating the aforesaid
provisions, two important conditions were
provided for regularisation; firstly that any
teacher, other than the principal or
headmaster appointed by promotion or by
direct recruitment in the lecturers grade or
trained graduate grade, on or after 7.8.1993,
but not later than 25.1.1999, and secondly,
appointed on a short term Vacancy in
accordance with paragraph 2 of Uttar
5 All. Tirthraj Vs. State of U.P. & Ors.
641
Pradesh Secondary Education Services
Commission (Removal of Difficulties)
Order, 1981, which was subsequently
converted into a substantive vacancy. The
various committees of management all over
the Uttar Pradesh, looking into the shortage
of
teachers
for
imparting
education,
appointed teachers in their institutes and
once the financial concurrence was not
granted by the District Inspector of Schools
concerned, time and again, such appointed
teachers approached the Hon'ble High
Court, wherein, interim orders were passed
while directing the District Inspector of
Schools to pay salary and as a result, they
were getting the salary since almost last
more than two decades.

8. It is worth to notice that the
provisions contained under section 33-G of
the Act 1982, is a beneficiary scheme
launched by the State Government looking
into the plight of the teachers who were
serving for more than two decades and their
service conditions were not regulated as
there was no statutory provisions. It has long
been held that in our constitutional scheme,
the State is a welfare State and action of
State must transpire that decision taken by
the State be fair, reasonable, transparent and
justifiable. So far as the present case is
concerned, it is the pious duty of the
respondent authorities to examine that the
teachers, who are serving for a long period
of time, whether falls under the mandate of
section 33-G of the Act 1982, and for such
consideration, two sources have pivotal role
to get it decided as those are having factual
information; firstly, the committee of
management of the institution concerned
and secondly, the District Inspector of
Schools.

9. When this Court examines the
impugned orders in the bunch of writ
petitions, it is apparent that it has been noted
by the Regional Level Committee in all the
impugned orders that 'उपरोक्त वखणगत ववन्दुओां
से सम्बजन्ित वाांनछत पत्रजात न तो जजला
ववद्यालय ननरीक्षक, प्रतापर्ढ़ द्वारा टदया र्या
और न ही प्रबन्ितांत्र द्वारा ही प्रस्तुत ककया
र्या।'

10. From perusal of the aforesaid
observations, it is crystal clear that the
records with respect to the appointment of
the petitioners were not placed before the
Regional Level Committee. This Court does
not enter into the reasons that who is
responsible
for
not
furnishing
the
documents but the fact remains that the
Regional Level Committee has taken
decision without the records. Further the
Regional Level Committee has also not
given any reason that as to when and how
the District Inspector of Schools and the
committee of management concerned were
directed to produce the record in the
connected writ petitions whereas the
aforesaid observations has been made in a
cyclostyle manner, in all the connected writ
petitions, which in fact indicates that the
Regional Level Committee was ignorant to
the importance ofthe records which could
only
be
availed
from
the
authority
abovesaid.

11. This Court has also taken note of
the fact that the opportunity of personal
hearing to the concerned petitioners/
affected teachers have also not been
accorded so as to sub-serve the compliance
of the rules of principles of natural justice.
The matter, which is in hand to decide, is not
on
the
premises
that
there
is
no
regularisation
rules
prevailing
but
petitioners have been deprived of their
valuable rights without ensuring the due
642 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity of hearing and further prior
coming to the conclusion, the records were
not procured from the committee of
management as well as the District Inspector
of Schools concerned.

12. The State counsel during the course
of his argument has also failed to
substantiate that with what manner the
Regional Level Committee sought for the
records from the committee of management
and from the District Inspector of Schools,
however, the District Inspector of Schools
himself is the member of the Regional Level
Committee.

13. From perusal of the orders of
Regional Level Committee, it is evident that
the District Inspector of Schools concerned
is one of the members and further there is
provision under the UP Intermediate
Education Act, 1921 (hereinafter referred to
as 'Act 1921') that if a committee of
management is violating any instruction or
direction of the educational authority, the
same can be forced by invoking the
provisions prescribed under the Act, 1921,
but it is nowhere mentioned in the orders
that either the District Inspector of Schools
or the committee of management concerned
have ever called upon or forced to submit
the relevant documents with respect to the
appointments or whatsoever the records
were required for the purpose of considering
the
regularisation
of
such
teachers/petitioners.

14. This Court is also of the considered
opinion that an employee should not be
deprived of any benefit or the provisions of
law only because of the fact that some error
has been committed by the employer
including the State and if it is so, the same
must be rectified. So far as the present
petitioners
are
concerned,
their
appointments were made under certain
exigencies and the grave requirements for
imparting education, wherein the State
machinery was totally failed to make
appointment of teachers, which is the
paramount duty of a welfare State. The
petitioners
were
appointed
in
the
educational institutions, which are in the
remote areas of the Province and those are
fulfilling the aim and object of the
constitutional scheme, thereby imparting
education, which is the fundamental right.

15. In fact, the State, while looking into
the aforesaid Act No.7 of 1982 while
inserting provision 33-G, provided that
those teachers other than principal or
headmaster, appointed by promotion or
direct recruitment, after 7.8.1993, but not
later than 30.12.2000, shall be given
substantive appointment, but the impugned
orders clearly show that Regional Level
Committee without the reports of the
Committee of Management and District
Inspector of Schools, has passed the orders,
which in fact failed the very purpose of
prescribing the scheme under section 33-G
of the Act 1982. The orders passed by the
Regional Level Committee are in a very
cursory manner and without ensuring the
records from the committee of management
and the District Inspector of Schools
concerned, which cannot be approved of.

16. Earlier also, the matter came up for
consideration before this Court in Special
Appeal (Defective) No. 103 of 2023 wherein
the controversy is settled while providing
that it is the duty and responsibility of the
State authorities to consider and adjudge the
suitability of the teachers for substantive
appointment under Section 33-G of the Act
1982 and their continuation in the ad hoc
capacity in the institution concerned is
subject to only such consideration. Further,
5 All. Tirthraj Vs. State of U.P. & Ors.
643
the order passed in the aforesaid special
appeal has also been affirmed in Special
Leave to Appeal (C) No.13023 of 2023, vide
order dated 17.7.2023. Thus, there remains
no dispute so far as the consideration of the
petitioners/ teachers under section 33-G of
the Act 1982, is concerned.

17. So for as the issue with respect to
ignoring the opportunity to the committee of
management and calling for the record are
concerned, this Court is not unmindful to the
rules of principles of natural justice which is
not a mere legal formality but the same
constitutes substantive obligation which
should reflect in the decision making
process of an adjudicating authority. This
rule is guaranteed against arbitrary action in
all the proceedings, namely, judicial, quasijudicial
and
administrative.
The
fundamental principle enshrined in the
Indian jurisprudence; audi alteram partem,
which
means
a
person
affected
by
administrative, judicial or quasi-judicial
action must be heard before a decision is
taken and, thus, in this view of the matter,
the issue involved in all these petitions, have
become more relevant and needs to be
rectified in the light of the abovesaid
principle.

18. I have also gone through the master
counter affidavit filed in leading writ
petition from which it is evident that there is
no specific reason assigned regarding nonavailability of the record which was
incumbent
upon
the
committee
of
management to furnish before the Regional
Level Committee, however, the same could
have been ensured by the Regional Level
Committee.

19. It's so long settled that every order
either administrative or judicial must stand
on its own legs. The constitutional Bench of
Hon'ble Apex Court in the case of Mohindhr
Singh Gill and another Vs. Chief Election
Commissioner, New Delhi and ohters,
(1978) 1 SCC 405, has very categorically
held as under.

"8. The second equally relevant
matter is that when a statutory functionary
makes an order based on certain grounds,
its validity must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to court
on account of a challenge, get validated by
additional grounds later brought out. We
may here draw attention to the observations
of Bose, J. in Gordhandas Bhanji2:

"Public orders, publicly made, in
exercise of a statutory authority cannot be
construed in the light of explanations
subsequently given by the officer making the
order of what he meant, or of what was in
his mind, or what he intended to do. Public
orders made by public authorities are meant
to have public effect and are intended to
affect the actings and conduct of those to
whom they are addressed and must be
construed objectively with reference to the
language used in the order itself."

Orders are not like old wine
becoming better as they grow older."

20. In view of the above submissions
and discussions, it emerges that the orders
impugned in all the writ petitions have been
passed in a cyclostyle manner and without
ensuring the records from the committee of
management and the District Inspector of
Schools and, therefore, those assail infirmity
and erroneousness.

21. Thus, all the writ petitions
succeeds and are allowed.
644 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Resultantly, the impugned orders
passed by the Regional Level Committee
headed by the Chairman, namely, Regional
Joint Director of Education concerned, in all
the respective writ petitions are hereby
quashed.

23. All the matters are relegated back
to
the
Regional
Level
Committees
concerned to pass order afresh within a
period of three months, after calling the
records from the committee of management
as well as the District Inspectors of Schools
concerned and subsequently verifying those
records and consulting with the committee
of management, and while affording
opportunity of hearing to the teachers
concerned, if so required. The scheme
provided under Section 33-G of the Act,
1982 shall strictly be adhered to.

24. In addition, it is further provided
that the petitioners of all the writ petitions
are entitled to continue in service and shall
be paid salary without any further break. It
is further directed that the petitioner as well
as the manager of the committee of
management shall ensure their presence and
would co-operate with the Regional Level
Committee, as and when required.
----------
(2024) 5 ILRA 644
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2024
BEFORE

THE HON'BLE YOGENDRA KUMAR
SRIVASTAVA, J.

Matters U/A 227 No. 339 of 2024

Saleem Ahmad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Verma

Counsel for the Respondents:
G.A., Sri Kuldeep Singh Parmar

Civil Law - Protection of Women from
Domestic Violence Act,2005 - Sections
2(a),2(q),12,18, 19, 20, 22 & 28 -
Application u/s 12 of D.VS Act was moved
by
respondent
no.
3
seeking
an
amendment in relief clause of an earlier
application - St.d that due to inadvertent
typographical error, maintenance had been
sought for 'the minor son', whereas
applicant didn't have any minor son -
Petitioner (father of the husband of the
respondent no. 3) raised objections that no
such amendment was permissible in
criminal proceeding - Learned Magistrate
allowed the application, observed that
said application be read along with main
application - Against the order, the
petitioner
preferred
a
revision
-
Rejected, the revisional court held that
proceedings under D.VS Act are quasi
civil in nature, and amendments to
pleadings were permissible - Impugned
orders - Held, proceedings before a
magistrate, which commence with filing
of application u/s 12, seeking various
kinds of reliefs, under Chapter IV, are of
a civil nature, and upon breach of a
protection order, the said proceedings
get
transformed
into
criminal
proceedings - Power to amend the
complaint/application would have to be
read in relevant statutory provisions - No
illegality in impugned order, dismissed.
(Para 3, 4, 5, 6, 20, 42)

Petition dismissed. (E-13)

List of Cases cited:

1. Kunapareddy @ Nookala Shanka Balaji Vs
Kunapareddy Swarna Kumari & anr., (2016) 11
SCC 774

2. St. of U.P. Vs Mukhtar Singh, AIR 1957 All 505

3. SAL Narayan Row Vs Ishwarlal Bhagwandas,
AIR 1965 SC 1818