# Tulsi Ram and others v. State of U.P. and others - **Citation:** (2009) 3 ILRA 1160 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2009-12-04 - **Case number:** Civil Misc. Writ Petition No. 65941 of 2009 - **Bench:** A.P. Sahi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tulsi-ram-and-others-v-state-of-u-p-and-others-41416 - **Pages:** 3 ## Headnote Constitution of India-Article 226Appointment of Class 4th employeeD.I.O.S. refused to approve on two grounds-appointment being out of sanctioned strength secondly appointing authority has no power-ad-hoc-principal working till end of academic Session can not be treated working as Head of the institution-order passed by DIOS perfectly justified-However power of approval or disapproval-within the ambit of regional level committee-petitioner may approach there-who shall take decision without being influenced with order of Court. Held: Para 8 & 9 In view of this, the then ad hoc Principal Shri Mool Chand Pandey could not have functioned as dejure Principal so as to empower him to exercise his discretion 3 All] Tulsi Ram and others V. State of U.P. and others 1161 to make appointments against Class-IV posts after the date on which he attained the age of superannuation. The second argument therefore also cannot stand the test of scrutiny. Accordingly, this Court cannot declare the findings recorded by the District Inspector of Schools to be incorrect. It is however to be noted that the question of approval or disapproval of such appointments is now under the jurisdiction and scrutiny of the Regional Level Committee under the Government Order dated 19.12.2000. In case the petitioners are aggrieved it is open to them to approach the Regional Level Committee for the redressal of their grievances. In case such a representation is filed, it shall be open to the Regional Level Committee to arrive at its own finding without being influenced by this orde but of course, only in accordance with law. Case law discussed: 2007 (1) ESC 193. ## Text 1160 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 Compensation Act can recall an order which was a result of a fraud played upon him. It cannot be said that he would be helpless in such a situation and the party who has suffered would also be helpless except to succumb to such fraud. 21. In Ashok Layland Ltd. Vs. State of Tamil Nadu and others, 2004 (3) SCC 1, it was held that an order obtained by fraud, collusion, misrepresentation, suppression of material facts or giving or furnishing false particulars would be vitiated in law and cannot be reopened. The Apex Court following the proposition laid down earlier in the case of Shrisht Dhawan Vs. Shaw Bros, (1992) 1 SCC 534, held: "Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false." 22. It is well settled that where an order of appointment is wholly illegal and void ab initio, neither the principles of natural justice would be attracted in such a case nor any irregularity in the order passed by the authorities concerned declaring the fraudulent orders to be illegal would make it valid for any purpose whatsoever. 23. Even otherwise, the petitioner having invoked equitable extraordinary jurisdiction of this court under Article 226 of the Constitution cannot seek the revival of an illegal order by stressing that since the order cancelling such illegal order is in violation of principle of natural justice or without reason, therefore, this court is under an obligation to revive an illegal order of his appointment. It is well settled that this Court shall be justified in refusing to grant any indulgence in a case where setting aside of an order would result in revival of another illegal order. 24. In view of the above discussion, I find no merit in the writ petition. Dismissed. No costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 04.12.2009 BEFORE THE HON'BLE A.P. SAHI, J. Civil Misc. Writ Petition No. 65941 of 2009 Tulsi Ram and others ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri P.D. Tripathi Counsel for the Respondents: C.S.C. Constitution of India-Article 226Appointment of Class 4th employeeD.I.O.S. refused to approve on two grounds-appointment being out of sanctioned strength secondly appointing authority has no power-ad-hoc-principal working till end of academic Session can not be treated working as Head of the institution-order passed by DIOS perfectly justified-However power of approval or disapproval-within the ambit of regional level committee-petitioner may approach there-who shall take decision without being influenced with order of Court. Held: Para 8 & 9 In view of this, the then ad hoc Principal Shri Mool Chand Pandey could not have functioned as dejure Principal so as to empower him to exercise his discretion 3 All] Tulsi Ram and others V. State of U.P. and others 1161 to make appointments against Class-IV posts after the date on which he attained the age of superannuation. The second argument therefore also cannot stand the test of scrutiny. Accordingly, this Court cannot declare the findings recorded by the District Inspector of Schools to be incorrect. It is however to be noted that the question of approval or disapproval of such appointments is now under the jurisdiction and scrutiny of the Regional Level Committee under the Government Order dated 19.12.2000. In case the petitioners are aggrieved it is open to them to approach the Regional Level Committee for the redressal of their grievances. In case such a representation is filed, it shall be open to the Regional Level Committee to arrive at its own finding without being influenced by this orde but of course, only in accordance with law. Case law discussed: 2007 (1) ESC 193. (Delivered by Hon'ble A.P. Sahi, J.) 1. Heard Shri P.D. Tripathi, learned counsel for the petitioners and the learned standing counsel. 2. The contention raised is that the impugned order proceeds on erroneous assumptions of fact and law, inasmuch as, the petitioners were validly appointed against posts, which had fallen vacant on account of the retirement of the incumbents, who were earlier working as approved employees. It is further submitted that the appointment of the petitioners were made by the then Principal who for all practical purposes was functioning as the Principal of the institution. Sri Tripathi therefore submits that the two findings recorded on the aforesaid issues deserves to be set aside and the petitioners deserve to be granted the benefit of payment of salary. 3. I have perused the impugned order. The same recites that in view of the Government Order dated 28th November, 1977, the posts which are in excess of the norms, could not have been offered for fresh appointment by the Principal as it would violate the provisions of the Government Order dated 20.11.1977. The second finding recorded is that the Principal of the institution Shri Mool Chand Pandey had already attained the age of superannuation, and therefore he was not entitled to make the appointments. Shri Tripathi has relied on the decisions in the case of Krishna Kumar Vs. District Inspector of Schools and in the case of Mohd. Ayub Vs. District Inspector of Schools, Moradabad and others reported in 1995 ALR 1996 and 2005 (1) UPLBEC 763 respectively. 4. On the strength of the said decisions learned counsel contends that so long as the appointments have been made against the posts for which salary has been disbursed earlier, there is no occasion to deny the said benefit to the petitioners. He further submits that the appointment once having been approved cannot be invalidated subsequently. 5. Having perused the aforesaid judgments, I do not find any consideration of the impact of the Government Order dated 20.11.1977 in the said judgments. The Government Order dated 20.11.1977 has the force of law, inasmuch as, the State Government has the power to issue such orders in exercise of the powers vested in it under section 9(4) of the U.P. Intermediate Education Act, 1921. The same provides for the norms that are fixed 1162 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 for the maximum number of employees to be engaged in the category available in the institution. According to the said norms it has been found that there are three Class-IV employees in excess of the maximum limit prescribed. Applying the aforesaid principle, it cannot be said that the District Inspector of Schools, Jaunpur has committed any illegality. 6. So far as, the question of the appointment of the petitioners by Shri Mool Chand Pandey is concerned, it would be appropriate to mention that there is no dispute that the said Principal had already attained the age of superannuation. Shri Tripathi, however, contends that he was continuing on extended employment and for all practical purposes he was the Principal of the institution. In view of this, his authority to proceed to make the appointments cannot be questioned. 7. The aforesaid argument cannot be accepted in view of the Division Bench judgment of this Court in the case of Hari Om Taesat Brahma Shukla Vs. State of U.P. and others reported in 2007 (1) ESC 193 wherein, it has been held that a person appointed on ad hoc basis as the head of the institution, upon attaining the age of superannuation, shall continue on his substantive post till the end of the session, and not as a Principal. 8. In view of this, the then ad hoc Principal Shri Mool Chand Pandey could not have functioned as dejure Principal so as to empower him to exercise his discretion to make appointments against Class-IV posts after the date on which he attained the age of superannuation. The second argument therefore also cannot stand the test of scrutiny. Accordingly, this Court cannot declare the findings recorded by the District Inspector of Schools to be incorrect. 9. It is however to be noted that the question of approval or disapproval of such appointments is now under the jurisdiction and scrutiny of the Regional Level Committee under the Government Order dated 19.12.2000. In case the petitioners are aggrieved it is open to them to approach the Regional Level Committee for the redressal of their grievances. In case such a representation is filed, it shall be open to the Regional Level Committee to arrive at its own finding without being influenced by this orde but of course, only in accordance with law. 10. The writ petition is dismissed with the aforesaid observation. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.12.2009 BEFORE THE HON'BLE ASHOK BHUSHAN, J. THE HON'BLE K.N. PANDEY, J. Civil Misc. Writ Petition No. 56383 of 2009 Dr. Ram Kinkar Singh ...Petitioner Versus U.P. Public Service Commission and others ...Respondents Counsel for the Petitioner: Sri Sanjiv Singh Sri Namwar Singh Counsel for the Respondents: Sri Pushpendra Singh Sri G.K. Malaviya Sri G.K. Singh Sri P.S. Baghel