# Ved Prakash & Ors v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 618
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-01
- **Case number:** Writ-A No. 23131 of 2018
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ved-prakash-ors-v-state-of-u-p-ors-49092
- **Pages:** 30

## Headnote

Law
-
UP
Intermediate
Education Act, 1982 - Section 33-C - L.T.
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
619
Grade teacher - Ad hoc appointment -
Grant
of
approval
-
Petitioner
was
regularized
by
the
Regional
Level
Committee in 2015 - Subsequently the
committee refused to grant approval in
2018 - Validity challenged - Earlier,
petitioner had to file five writ petition for
one
cause
of
action
-
Held,
the
respondents are hell bent to scuttle the
orders passed by this Court in various writ
petitions on the same cause of action
between the same party and have invited
unnecessary litigation which resulted in
harassment of petitioners - High Court
imposed cost of Rs. five lacs upon the
State. (Para 46 and 82)
B. Service Law - Civil Procedure Code -
Section 11 - Res judicata - Applicability to
writ proceeding - Earlier, several writ
petition were decided between the same
party, how far barred by principle of res
judicata - Held, the doctrine of res
judicata is based on the high public policy
to bring about an end to litigation by
giving finality to judgments interse parties
- The said principle has not only been
made applicable to suit but also in other
proceedings like writ petitions under
Article 226 of the Constitution of India.
(Para 59 and 60)
C. Service Law - Power of review -
Exercised by the authority, extent of -
Held, the Regional Level Committee has
no power to review its order as it is
settled in Law that the review is the
creation of statute and authority can
exercise the power of review if it is
conferred by the statute. (Para 76)
D. Service Law - Constitution of India -
Article 14 - Principle of natural justice -
Opportunity of hearing, how far significant
before passing any order - Held, the
impugned order is not sustainable in Law for
want of principle of natural justice, inasmuch
as the order impugned do not reflect that any
notice or opportunity of hearing was afforded
to
the
petitioners
before
passing
the
impugned orders. (Para 77)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

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618 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances the said teacher would be
employed for a further period of two years
and would also be getting salary for the
post that he holds. Clearly the payment of
gratuity as such was linked to the extra
years of service rendered by the teacher.

65. In the present bunch of petition,
the predecessors of petitioner have passed
away without performing the extra years of
service between the ages of 58 years to 60
years. Thus the very purpose of denying
gratuity to such persons is inapplicable.

66. Viewed from this perspective,
grant of benefit of gratuity in such
circumstances is directly relatable to the
Rules of 1981 itself and therefore there is
no occasion for the respondents to hold that
change in option is being sought by family
members of the deceased who fail to
exercise the option since the grant of
benefit of gratuity is the natural corollary of
extra years of service not being rendered by
the predecessors of petitioner. The second
aspect of the matter of course, is that
predecessors have passed away prior to the
time when they were required to submit
their options in terms of the various
Government Orders and therefore also
since they did not have an opportunity to
change their option, naturally the family
member being successors to their interest
would have a right to exercise that option
in terms of the Government Order. As such
answer to the question is that the grant of
gratuity is a natural corollary to services
not being rendered for the extra period of
two years in terms of conditions of Rules of
1981 and as such, such an option once
granted earlier can definitely be revised.

67. In view of aforesaid answers to
the two questions, it is held that the denial
of grant of gratuity to the petitioners in
terms of conditions of Rules of 1981 is
clearly contrary to provisions not only of
the aforesaid Rules of 1981 but to the
consequent Government Orders as well.
Considering the aforesaid, the orders
impugned rejecting grant of benefit of
death-cum-retirement
gratuity
to
the
petitioners being bad in law are quashed by
issuance of a writ in the nature of certiorari.
A further writ in the nature of mandamus is
issued
commanding
the
concerned
authority to make payment of death-cumretirement gratuity to the petitioners in
terms of Rules of 1981. Calculation for
same and actual payment of benefits shall
be accorded within a period of six months
from the date of a copy of this is produced
before the concerned authority.

68. Resultantly, the writ petitions
succeed and are allowed. Parties shall bear
their own costs.
----------
(2022) 9 ILRA 618
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 23131 of 2018

Ved Prakash & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Arpan Srivastava, Sri Neelabh Srivastava, Sri
Amit Kumar Srivastava, Sri Anil Bhushan(Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Jitendra Kumar Pandey

A.
Service
Law
-
UP
Intermediate
Education Act, 1982 - Section 33-C - L.T.
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
619
Grade teacher - Ad hoc appointment -
Grant
of
approval
-
Petitioner
was
regularized
by
the
Regional
Level
Committee in 2015 - Subsequently the
committee refused to grant approval in
2018 - Validity challenged - Earlier,
petitioner had to file five writ petition for
one
cause
of
action
-
Held,
the
respondents are hell bent to scuttle the
orders passed by this Court in various writ
petitions on the same cause of action
between the same party and have invited
unnecessary litigation which resulted in
harassment of petitioners - High Court
imposed cost of Rs. five lacs upon the
State. (Para 46 and 82)
B. Service Law - Civil Procedure Code -
Section 11 - Res judicata - Applicability to
writ proceeding - Earlier, several writ
petition were decided between the same
party, how far barred by principle of res
judicata - Held, the doctrine of res
judicata is based on the high public policy
to bring about an end to litigation by
giving finality to judgments interse parties
- The said principle has not only been
made applicable to suit but also in other
proceedings like writ petitions under
Article 226 of the Constitution of India.
(Para 59 and 60)
C. Service Law - Power of review -
Exercised by the authority, extent of -
Held, the Regional Level Committee has
no power to review its order as it is
settled in Law that the review is the
creation of statute and authority can
exercise the power of review if it is
conferred by the statute. (Para 76)
D. Service Law - Constitution of India -
Article 14 - Principle of natural justice -
Opportunity of hearing, how far significant
before passing any order - Held, the
impugned order is not sustainable in Law for
want of principle of natural justice, inasmuch
as the order impugned do not reflect that any
notice or opportunity of hearing was afforded
to
the
petitioners
before
passing
the
impugned orders. (Para 77)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Ashika Prasad Shukla Vs District Inspector of
Schools, Allahabad & anr.; 1998 (3) UPLBEC
1722
2. Gulabchand Chhotalal Parikh Vs St. of
Bombay; AIR 1965 SC 1153
3. Workmen of Cochin Port Trust Vs Board of
Trustees of the Cochin Port Trust & ors.; (1978)
3 SCC 119
4. Smt. Naseem Bano Vs St. of U.P. & ors.; AIR
1993 SC 2592
5. Neelima Srivastava Vs St. of U.P & ors.; AIR
2021 SC 3884
6. Suresh Chandra Vs District Inspector of
Schools, Saharanpur & ors.; (1991) 2 UPLBEC
1097
7. Anilesh Pratap Singh Vs St. of U.P. & ors.;
(2003) 3 UPLBEC 2519
8. Radha Raizada and other Vs Committee of
Management, Vidhawati Darbari Girls Inter
College & ors.; (1994) 3 UPLBEC 1551
9. Prabhat kumar Sharma & ors. Vs St. of U.P. &
ors.; (1996) 10 SCC 62
10. Mahesh Kumar Gupta & ors. Vs St. of U.P. &
ors.; (2015) 10 ADJ 403 DB
11. Raghunath Rai Bareja & anr. Vs Punjab
National Bank & ors.; 2007 (2) SCC 230
12. Greater Mohali Area Developement Authority
& ors. Vs Manju Jain & ors.; AIR 2010 SC 3817
13. Gulabchand Chhotalal Parikh Vs St. of
Bombay; AIR 1965 SCC 1153
14. Daryao's's case; (1962) 1 SCR 574
15. Workmen Coachin Port Trust's case AIR
1978 SC 1283
16. Neelima Srivatava Vs St. of U.P & ors.; AIR
2021 SC 3884
17. Uttar Pradesh Vs Nawab Hussain; (1977) 3
SCR 428
18. Raghunath Rai Bareja & anr. Vs Punjab
National Bank & ors.; (2007) 2 SCC 230
620 INDIAN LAW REPORTS ALLAHABAD SERIES
19. Greater Mohali Area Development Authority
& ors. Vs Manju Jain Others; AIR 2010 SC 3817
20. Dr. Smt. Kuntesh Gupta Vs Management of
Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) &
ors.; AIR 1987 SC 2186
21. Hari Krishna Mandir Trust Vs St. of
Maharashtra & ors.; (2020) 9 SCC 356
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Anil Bhushan, learned
Senior Counsel, assisted by Sri Amit
Kumar Srivastava, learned counsel for the
petitioners and Sri Neeraj Tripathi, learned
Additional Advocate General, assisted by
Sri Shashank Shekhar Singh, Additional
Chief Standing Counsel for respondents no.
1 to 4.

2. The petitioners, who are four in
numbers, have assailed the order dated
23.08.2018 passed by the Director of
Education, (Secondary), Government of
U.P., Lucknow and order dated 28.10.2021
passed during the pendency of the writ
petition by the Regional Level Committee
and have further prayed for a writ of
mandamus directing the Joint Director of
Education to pay arrears of salary.

3. The facts in brief are that D.A.V.
Inter College, Aryapur Khera, Mainpuri
(hereinafter referred to as ''the College') is a
recognized Institution under the provisions
of U.P. Intermediate Education Act, 1921
and Uttar Pradesh High Schools and
Intermediate Colleges (Payment of Salaries
of Teachers and Other Employees) Act,
1971 is applicable in the present case.

4. According to the petitioners, two
posts of L.T. Grade teacher were sanctioned
by the Director of Education vide order
dated 31.03.1991 and two posts became
vacant on account of retirement of Kaptan
Singh and Shyam Bihari Dubey (Assistant
Teacher) on 30.06.1991. The Committee of
Management of the College (respondent
no.5) decided to make appointment on the
said posts and passed a resolution to this
effect on 07.07.1991. The respondent no.5
sent a requisition to the District Inspector
of Schools, Mainpuri (respondent no.4)
(hereinafter
referred
to
as
'D.I.O.S.
Mainpuri') on 20.08.1991 to forward the
same to the U.P. Secondary Education
Service
Selection
Board,
Allahabad
(hereinafter
referred
to
as
''Commission') for filling the aforesaid
four posts.

5. Further case of the petitioner's is
that after sending the requisition by the
respondent no.5 to the Commission, the
respondent no.5 advertised the aforesaid
posts in the daily newspaper on 03.10.1991
and the same was also pasted on the notice
board of the College. Pursuant to the
advertisement issued by the College,
several candidates had applied, and on the
basis of quality point marks, the petitioners
were found to be the most suitable
candidates, accordingly, they have been
selected against the aforesaid four posts of
L.T. Grade Teacher. Consequently, the
petitioners have been issued appointment
letters
as
L.T.
Grade
Teacher
on
20.10.1991.

6. Pursuant to the appointment letters,
the petitioners joined on 01.11.1991. The
respondent no.5 forwarded the papers of
the petitioners to the respondent no.4 for
grant of financial approval, which was
rejected by the respondent no.4 by order
dated 13.04.1992 on the ground that a ban
was imposed by the State Government on
ad hoc appointments.

7. The petitioners challenged the
order
dated
13.04.1992
passed
by
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
621
respondent
no.4
rejecting
financial
approval, by means of Writ Petition
No.18381 of 1992, in which this Court on
22.05.1992
passed
an
interim
order
directing the respondent no.4 to release the
salary of the petitioners. Thereafter, the
salary of the petitioners have been paid
from 01.11.1991 to July, 1995.

8. It is further stated that respondent
no.4 stopped the salary of the petitioners
which led the petitioners to file Writ
Petition No.28887 of 1995 which was
disposed of by this Court vide judgement
and order dated 16.10.1995 with liberty to
the
petitioners
to
file
appropriate
amendment application in the pending writ
petition.

9. By amendment, Section 33-C has
been added in U.P. Act No.5 of 1982
relating to regularization of ad hoc
Teachers. Section 33-C came into force on
20.04.1998. According to Section 33-C,
teachers appointed between 14.05.1991 to
06.08.1993 are entitled to be regularized
under this Section.

10. The petitioners claim that after
the insertion of Section 33-C in Act 1982,
they submitted an application to the
respondent no.4 praying that their claim
for regularization as well as for payment
of salary be considered. On the said
application,
the
Accounts
Officer
submitted report that the appointment of
the petitioners is as per law and they come
within the purview of Section 33-C of the
Act, 1982 for regularization, therefore,
they may be paid salary. Thereafter, the
respondent no.4 by order dated 06.06.1998
directed the Accounts Officer to release
the salary of the petitioners after verifying
that they have been working in the
College.

11. In the meantime, the Writ Petition
No.18381 of 1992 was disposed of by this
Court vide order dated 04.02.1999, whereby
this Court directed the authorities to consider
the claim of the petitioners for regularization
under Section 33-C of the Act, 1982.

12. Thereafter, pursuant to the
judgement and order of this Court dated
04.02.1999, the Joint Director of Education
by order dated 28.02.2001 rejected the claim
of the petitioners for regularization on the
ground that the appointment of the petitioners
was not in accordance with law as the
advertisement was not published in two daily
newspapers having wide circulation in the
area.

13. The order dated 28.02.2001 was
challenged by the petitioners by filing Writ
Petition No.24305 of 2001, which was
allowed by this Court vide judgement and
order dated 24.02.2005 on the ground that the
rejection of the petitioners' claim by the
Regional Level Committee on the ground
that the advertisement was not made in two
daily newspapers does not sustain in view of
Division Bench judgement of this Court in
the case of Ashika Prasad Shukla Vs.
District Inspector of Schools, Allahabad
and another, 1998 (3) UPLBEC 1722, since
the advertisement was made in the year 1991,
i.e., prior to the date of the judgement of Full
Bench in the case of Radha Raizada's case.
Accordingly, this Court allowed the writ
petition by judgement and order dated
24.02.2005,
quashed
the
order
dated
28.02.2001 and directed the Joint Director of
Education to constitute a Committee for
consideration of regularization of petitioners
under Section 33-C of the Act, 1982.

14. Pursuant to the judgement of this
Court dated 24.02.2005 passed in Writ
Petition No.24305 of 2001, the Regional
622 INDIAN LAW REPORTS ALLAHABAD SERIES
Level Committee again by order dated
17.08.2006 rejected the claim of the
petitioners, which came to be challenged by
the petitioners in Writ Petition No.53709
of 2006, which was allowed by this Court
by judgement and order dated 02.07.2009
and the matter was again referred to the
Regional Level Committee to consider the
claim of the petitioners for regularization in
the light of judgement and order dated
24.02.2005 passed in Writ Petition
No.24305 of 2001.

15. Thereafter, in compliance of the
judgement and order dated 02.07.2009
passed in Writ Petition No.53709 of 2006,
the Regional Level Committee considered
the claim of the petitioners and again
rejected their claim by order dated
24.07.2010
on
the
ground
that
the
advertisement in respect of selection of the
petitioners was not published in two
leading
newspapers;
secondly,
under
Section 18 of the Act, 1982, the selection
process for appointment on ad hoc basis
can be initiated only after expiry of 60 days
from the date the posts have been notified
to the Commission, whereas in the instant
case the posts were not notified to the
Commission, hence no appointment could
be made by the Commission on the
aforesaid posts in view of non-compliance
of Section 18 of the Act, 1982, therefore,
the appointment of the petitioners was perse illegal and they are not eligible for
regularization under Section 33-C of the
Act,1982.

16. The order dated 24.07.2010 was
again assailed by the petitioners by means
of Writ Petition No.69975 of 2010 which
was allowed by this Court vide judgement
and order dated 09.04.2013 holding that the
grounds on which the claim of the
petitioners have been rejected by order
dated 24.07.2010 are not sustainable in law.
Accordingly, this Court remitted the matter
to
the
Screening
Committee/Selection
Committee again to comply with the
directions issued by this Court vide order
dated 24.02.2005 in Writ Petition No.
24305 of 2001 and the order dated
02.07.2009
passed
in
Writ
Petition
No.53709 of 2006.

17. Again, the Regional Level
Committee by order dated 04.10.2013
rejected the claim of the petitioners which
came to be challenged by the petitioners in
separate writ petitions. However, this Court
decided the writ petition filed by the
petitioners treating Writ-A No.62780 of
2013 (Surya Kant Mishra & Another Vs.
State of U.P. and Others ) as the leading
writ petition on 12.08.2015 holding the
grounds of rejection are untenable in law.

18. After five round of litigation, the
claim of the petitioners' was considered by
the Regional Level Committee pursuant to
the judgement and order of this Court dated
12.08.2015 passed in Writ-A No.62728 of
2013; the Regional Level Committee by
order dated 30.12.2015 regularized the
services
of
the
petitioners
w.e.f.
01.11.1991.

19. After the regularization order was
passed, the petitioners claimed their salary,
but instead of granting salary to the
petitioners, respondent no.2 by order dated
23.08.2018 rejected the claim of petitioners
for arrears of salary, which is impugned in
the present writ petition.

20. When the objection was taken by
the petitioners that once the Regional Level
Committee has passed order regularizing
the services of the petitioners, therefore,
respondent no.2, has no jurisdiction to sit in
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
623
appeal over the order passed by the
Regional Level Committee and deny the
salary of the petitioners.

21. To overcome the aforesaid
objection, the respondents constituted a
Regional Level Committee who passed an
order on 28.10.2021 rejecting the claim of
the petitioners, which also came to be
challenged by the petitioners in the writ
petition
by
means
of
amendment
application which was allowed by this
Court.

22. The respondents have not chosen
to file any counter affidavit, however, have
filed
various
affidavits
and
personal
affidavits which shall be dealt with at the
appropriate place in the judgement.

23. Challenging the order dated
23.08.2018 passed by respondent no.2, Sri
Anil Bhushan, learned Senior Counsel has
contended that the order of respondent no.2
dated 23.08.2018, is illegal and without
jurisdiction. It is contended that once the
Regional Level Committee has passed an
order
on
30.12.2015
holding
the
appointment
of
the
petitioners
in
accordance with law and regularizing the
service of the petitioners, the respondent
no.2 cannot sit in appeal over the order
passed by the Regional Level Committee
and deny the salary to the petitioners
holding that the appointment of the
petitioners is illegal, and not in accordance
with law.

24. It is further submitted that the
order dated 28.10.2021 passed by the
Regional Level Committee during the
pendency of writ petition also smacks of
malafide, inasmuch as when this Court has
taken serious note of the conduct of the
respondents in rejecting the claim of the
petitioners for salary in order dated
29.10.2018 in the present writ petition, the
respondent no.2 in order to cure the lacuna
in order dated 29.10.2018, referred the
matter to the Regional Level Committee
who passed the order dated 28.10.2021
denying the salary to petitioners, which
cannot be permitted in law.

25. It is further contended that, even
otherwise, the order dated 28.10.2021
passed by the Regional Level Committee is
illegal and without jurisdiction inasmuch as
it is settled in law that the power of review
is the creation of statute, and in the instant
case as there is no power of review vested
with the Regional Level Committee,
therefore, the order dated 28.10.2021 is not
sustainable in law.

26. It is further contended that it is
also settled in law that the power of review
can be exercised only in cases where the
order has been obtained by fraud or
misrepresentation, whereas in the instant
case the order dated 28.10.2021 does not
state that the order dated 30.12.2015
regularizing the services of the petitioners
was obtained by fraud or misrepresentation,
therefore, the order dated 28.10.2021
passed by Regional Level Committee is
illegal and without jurisdiction. It is
submitted that the order dated 28.10.2021
has been passed without affording any
opportunity of hearing and therefore is not
sustainable in law.

27. It is further urged by learned
counsel for the petitioners that the issue in
respect to the validity of appointment of the
petitioners has been decided by this Court
in various writ petitions, i.e., Writ Petition
No.24305 of 2001 decided on 24.02.2005;
Writ Petition No.53709 of 2006 decided on
02.07.2009; Writ Petition No.69975 of
624 INDIAN LAW REPORTS ALLAHABAD SERIES
2010 decided on 09.04.2013 and leading
Writ Writ Petition No.62780 of 2013
decided on 12.08.2015, accordingly, it is
contended that that as the judgements
passed by this Court in the aforesaid writ
petitions
have
attained
finality,
the
respondents cannot reject the claim of the
petitioners
on
the
ground
that
the
appointment of the petitioners was not as
per law.

28. It is submitted that principle of
res-judicata applies in the present case as
the issue with regard to validity of
appointment of petitioners has been settled
by this Court in aforesaid writ petitions
which have attained finality. In this respect
learned counsel for the petitioners has
placed reliance upon the judgement of the
Apex Court reported in AIR 1965 SC
1153, Gulabchand Chhotalal Parikh v.
State of Bombay ; (1978) 3 SCC 119,
Workmen of Cochin Port Trust v. Board
of Trustees of the Cochin Port Trust &
Ors; AIR 1993 SC 2592, Smt. Naseem
Bano Vs. State of U.P. and Ors. & AIR
2021 SC 3884, Neelima Srivastava v.
State of U.P & Ors..

29.

Rebutting
the
aforesaid
submissions, learned Additional Advocate
General submits that Section 18 of Act
1982 provides that ad hoc appointment can
only be made when the requisition has been
sent to the Commission notifying the posts,
and two months have lapsed from the date
posts have been notified to the Commission
and the Commission has failed to make
appointment on the said post, accordingly,
it is submitted that in the instant case the
respondent no.5 has started the process of
appointment before 60 days period expired
from the date posts were notified to the
Commission which amounts to nonadherence of mandatory requirement of
Section 18 of Act, 1982, hence, all
appointments being in contravention to
Section 18 of Act, 1982 are perse illegal
and no benefit can be claimed on the basis
of such appointment. It is further contended
that
the
procedure
to
make
any
appointment on substantive posts under
Section 18 of the Act 1982 is contemplated
under Para 5 (2) of U.P. First Removal of
Difficulties
Order
1981
(hereinafter
referred to as 'Order, 1981'). Under the
Order, 1981, respondent no.4 is vested with
the power to initiate appointment and in
case the appointment is made by the
Committee of Management, the approval
by D.I.O.S. is necessary, but in the instant
case, no approval has been granted by the
D.I.O.S.
to
the
appointment of
the
petitioners,
therefore,
the
petitioners'
appointment is void and as such the order
impunged has been passed in accordance
with law.

30. In support of the said argument,
he has placed reliance upon the judgements
of this Court reported in (1991) 2
UPLBEC 1097, Suresh Chandra vs.
District
Inspector
of
Schools,
Saharanpur
and
others;
(2003)
3
UPLBEC 2519, Anilesh Pratap Singh vs.
State of U.P. & Others; (1994) 3
UPLBEC 1551, Radha Raizada and
other vs. Committee of Management,
Vidhawati Darbari Girls Inter College
and Others; (1996) 10 SCC 62, Prabhat
kumar Sharma & others vs. State of U.P.
& others & (2015) 10 ADJ 403 DB,
Mahesh Kumar Gupta & Others Vs.
State of U.P. & others.

31. He further contends that it is also
settled in law that law will prevail over
equity, and as in the instant case the
appointment of the petitioners were dehors
the procedure contemplated for making
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
625
adhoc
appointment,
therefore,
the
petitioners are not entitled to any benefit on
the principle of equity. In this respect he
has placed reliance upon the judgement of
the Apex Court of 2007 (2) SCC 230,
Raghunath Rai Bareja & another Vs.
Punjab National Bank & others.

32. Lastly, he contends that the pure
legal question can be raised at any time and
in this respect he has placed reliance upon
the judgement of AIR 2010 SC 3817,
Greater Mohali Area Developement
Authority & others Vs. Manju Jain &
Ors..

33. I have heard learned counsel for
the parties and perused the material brought
on record.

34. Before proceeding to deal with the
respective contentions of the counsel, this
Court expresses its anguish and pain about the
resilient approach of the respondent authorities
in scuttling the orders passed by this Court
which led to filing of 5 writ petitions by the
petitioners before this writ petition, this is the
6th round of litigation between the parties on
the same cause of action.

35. Proceedings in the instant case are
detailed below to demonstrate that due to
stubborn and reckless approach of the
respondent authorities, not only the valuable
time of the Court has been wasted but also
valuable time and resources of the State
machinery has been wasted resulting in
unnecessarily financial burden upon the State
due to mulish and irresponsible behaviour of
State Officers. When the writ petition was filed
and heard on admission, this Court passed the
following order on 29.10.2018:-

"Petitioners, who are four in number,
have approached this Court challenging an
order of the Director of Education
(Secondary),
U.P.,
Lucknow
dated
23.08.2018;
whereby,
petitioners'
representation, made in pursuance of the
direction issued by this Court in Writ A No.
6001 of 2018 dated 27.02.2018, has been
rejected.

It appears that petitioners had earlier
approached this Court by filing Writ A No.
62780 of 2013, along with Writ A Nos.
62782 of 2013 and 70291 of 2013, which
came to be disposed of with a direction
upon the authority concerned to consider
petitioners' claim for regularization in
accordance with section 33-C of the U.P.
Secondary Education Services Selection
Board Act, 1982(hereinafter referred to as,
'the Act of 1982'). The observation made by
this Court reads as under:-

"So far as the facts are concerned,
almost they are all admitted by the
respondent counsel. In the present matter
for the selection of teachers on substantive
vacancy in the institution, the same is
required
to
be
moved
before
the
commission under Section 18 of the U.P.
Secondary Education Services Selection
Board Act, 1982 and when such eventuality
happens in institution and regular Assistant
Teacher is not made available by the board,
the Committee of Management after due
advertisement
may
appoint
assistant
teacher in L.T. Grade. In pursuance to the
advertisement they have applied for the
post and selected for the post of Assistant
Teacher vide appointment letter dated
20.10.1991 and on the basis of interim
order granted by this Court on 22.05.1992
they have been paid salary. After Section
33-C of the Act 1982 came into existence,
the
petitioners
demanded
for
their
regularisation of their services which was
eventually
rejected
by
the
Regional
Committee vide an order dated 28.02.2001
precisely on the ground that the procedure
626 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribed under Section 18 of the Act was
not followed by the Committee namely
advertisement had not taken place in two
leading newspapers which have wide
circulation in the region. Hon'ble Court
while deciding the writ petition No. 24305
of 2001 had categorically came into
conclusion that no such procedure has been
provided under Section 18 of the Act but
this direction for making an advertisement
in two leading newspapers was given by the
Full Bench of this Court in Radha
Raizada's case reported in 1994 (3)
UPLBEC 1551 and subsequently in Ashika
Prasad Shukla Vs. District Inspector of
Schools, Allahabad and another, 1998 (3)
UPLBEC 1722, a Division Bench of this
court held that the direction issued by the
Raizada's
case
(supra)
was
with
prospective in nature and would be
applicable in case where the person is
appointed subsequent to the decision of this
Full Bench and as such the same would not
be applicable in the case of the petitioners.
Therefore, the first objection initially taken
by the regularisation committee does not
have any ground to stand and consequently
the
earlier
impugned
order
dated
28.02.2001 was quashed by this Court with
direction to the Joint Director of Education
to constitute a committee for regularisation
of the petitioners under Section 33-C.
Therefore, it is apparent that whatever the
objection taken by the respondents had
been rejected by this Court while allowing
the Writ Petition No. 24305 of 2001. But
unfortunately again the respondents have
taken a plea while rejecting their claim for
regularisation on the ground that the
petitioners were not paid salary since 1995,
therefore, their claim do not fall under
Section 33-C of the Act. The records clearly
give an impression that the D.I.O.S. while
forwarding the papers on 06th June, 2000
had clearly held that the the appointments
of the petitioners were made in between
14.05.1991 to 06.08.1993 and they were
working continuously in the institution and
subsequently it had also brought on record
that the salary of the petitioners were paid
on the basis of interim order passed by this
Court in the year 1991. Therefore,
subsequently, the objection raised by the
Regularisation
Committee
that
the
petitioners were not paid since 1995 is not
sustainable
in
accordance
with
the
provisions of Section 33-C.

It is suffice to say that it is not
disputed that initial appointment of the
petitioner
in
the
institution
was
in
accordance with law. The Accounts Officer
submitted
a
detailed
report
dated
23.05.2001
stating
therein
that
the
petitioners were entitled for the salary as
well as for regularisation but unfortunately
the records would lead to the conclusion
that the claims of the petitioners were
rejected on the basis on non-existence
grounds and at no point of time the
department had taken any decision strictly
in accordance with the law but time to time
they have changed the ground for rejecting
the claim of the petitioners. The statue
clearly provides that working of a teacher
is essential ingredients for consideration of
regularisation and the petitioners' cases
also fall under the cut off date but the
aforesaid consideration had not been made
by the regularisation committee. It is
evident from the record that the petitioners
were working in the institution and if it is
admitted situation that the petitioners were
working on the date when regularisation
rules came into existence they are entitled
to
be
considered
for
regularisation.
Unfortunately the petitioners inspite of
their best effort, their services had not been
regularized till date, even though their
rights accrued 1992. Inspite of various
directions issued by this court their future
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
627
is still at stake. In view of the aforesaid
facts
and
circumstances,
the
order
impugned dated 04.10.2013 passed by the
Regularisation Committee headed by the
Joint Director of Education cannot be
sustained and is hereby set aside. The writ
petitions are allowed. The matter is
remitted to the Regularisation Committee
headed by the Joint Director of Education
to consider and decide it within two
months, in view of the observations made
hereinabove."

Pursuant to the directions of this
Court
dated
12.08.2015,
the
matter,
relating to regularization of the petitioners'
claim, was considered by the Committee
constituted under the Act. The Committee
proceeded to pass specific order on
30.12.2015 regularizing the services of the
petitioners with effect from 01.11.1991.
This order has been passed by a Committee
chaired by the Joint Director of Education,
Agra, which had the District Inspector of
Schools as Member, apart from two other
members. This order has attained finality. It
appears that in respect of petitioners' claim
for release of arrears of salary, claim has
been forwarded to the authorities for
release of payment, but no decision was
taken upon it. It was in that context that a
writ petition came to be filed before this
Court being Writ A No. 6001 of 2018,
which has been disposed of by the
following orders on 27.02.2018:-

"The writ is disposed of directing the
respondent No.2, Director of Education
Secondary, Government of U.P., Lucknow
to
pass
final
orders
on
the
recommendations of the DIOS dated
28.2.2017 annexed as Annexure No. 14 to
the writ petition, within a period of six
weeks from the date of production of
certified copy of this order."

Even thereafter, the order was not
complied with and consequently, a contempt
petition had to be filed, in which notices were
issued on 24.07.2018. It is thereafter that the
impugned order has been passed by the
Director of Education. After noticing the
relevant facts, the authority has proceeded to
observe, in his order, that petitioners' claim
for regularization has not been examined by
the
appropriate
regional
Committee
constituted in terms of section 33-C of the Act
of 1982 and therefore, their services cannot
be treated to have been regularized in law
and they would not be entitled to benefit of
such order.

Observation, contained in the order,
clearly omits to consider the specific decision
taken by the Committee on 30.12.2015. It is
pursuant to this decision of the Committee
regularizing the petitioners' service that
petitioners' claim for release of salary has
been forwarded. The order of the Director
appears to be based upon complete nonapplication of mind; in as much as, relevant
orders passed by the Committee have been
completely ignored.

It is unfortunate that despite a specific
direction as well as orders passed in
contempt petition, the authority has not cared
to look into the records and the order
impugned has been passed in routine and
mechanical manner.

In the facts and circumstances, the
Director of Education (Secondary) is directed
to file his personal affidavit, within a period
of two weeks from today, justifying his order
in light of the decision taken by the
Committee on 30.12.2015. The personal
affidavit of the Director shall be filed by the
next date fixed.

List on 15.11.2018 at the top of the list.
Liberty stands reserved to the petitioners to
make a mention for the case to be taken upon
on that date."

36. Perusal of the order dated
29.10.2018
discloses
that
the
Court
628 INDIAN LAW REPORTS ALLAHABAD SERIES
expressed displeasure about the manner in
which the order impugned in the writ
petition has been passed and directed the
respondent no.2 to justify his order dated
23.08.2018 in the light of the decision
taken by the Regional Level Committee on
30.12.2015 regularizing the services of the
petitioners.

37. The respondent no.2 Sri Vinay
Kumar Pandey filed a personal affidavit
dated 11.12.2018 stating therein that he had
joined as Director of Education on
27.08.2018 and impugned order was passed
by
the
then
Director
of
Education
(Secondary). He further stated that he
immediately after joining, had issued notice
to the petitioners, therefore, six weeks' time
was prayed for passing a detailed order
after hearing the parties.

38. The matter was taken up
subsequently on few dates but the case was
adjourned. This Court on 29.07.2021
directed
the
Director
of
Education
(Secondary), U.P. Lucknow to file a
personal
affidavit
indicating
further
compliance of orders in furtherance of
averments made by him in personal
affidavit dated 11.12.2018 within a period
of two weeks, failing which he was
directed to appear in the Court personally.

39. The order dated 27.09.2021 was
not complied with, which led the Court to
issue bailable warrant on 18.10.2021 and
directed the matter to be posted on
08.11.2021.

40. On the said date, a supplementary
counter affidavit dated 08.11.2021 was
filed
by
the
respondents
enclosing
therewith an order dated 28.10.2021 passed
by
the
Regional
Level
Committee
cancelling the order dated 30.12.2015, by
which the services of the petitioners have
been regularized.The judgement and order
dated 19.12.2017 passed in PIL No.35090
of 2015 referred to in paragraph no.24 of
Supplementary Counter Affidavit was the
basis of order dated 28.10.2021. It is
further stated that on the basis of the said
order, the authority before granting salary
has to ensure four conditions referred as A,
B, C & D in paragraph no.24 of the
supplementary counter affidavit which has
been provided in the judgement and order
dated 19.12.2007 passed in PIL No.35090
of 2015. In para-25 of the affidavit it is
stated that the Government Order dated
18.04.2019 was also issued in the light of
the order dated 19.12.2017 passed in PIL
No.35090 of 2015. Paras-24 & 25 of the
supplementary
counter
affidavit
dated
08.11.2021 are reproduced herein-below:-

"24.That the matter of the petitioners
was examined and the regularization was
not found in consonance with Section 33-C
of the Act, 1982 and the mandatory
conditions, which were to be considered by
the Regional Level Committee, were not in
fact duly considered in the regularization
order. In this respect in Civil Misc. Writ
Petition (PIL) No.35090 of 2015 (Rjesh Rai
Vs. State of U.P. and others), this Hon'ble
Court vide order dated 19.12.2017 issued
certain directions, which were to be taken
into account while considering the claim of
salary by the employees. It has been
directed to the Secretary that he shall
examine as to whether the appointment of
persons claiming salary is within the
sanctioned strength of the institution or not,
whether the appointment had been made
after following the procedure under Law
including (a) advertisement of vacancy in
the newspaper (b) constitution of selection
of committee (c) selection proceedings
having been made in accordance with the
9 All. Ved Prakash & Ors. Vs. State of U.P. & Ors.
629
procedure applicable and the approval of
the competent authority (d) the persons,
who appointed, were possessed of the
required minimum qualification on the date
of selection. It has also been directed that if
any or all of the aforesaid conditions are
found to be lacking, the Secretary shall not
issue any order for payment of salary from
the State Exchequer for such persons. After
examining the matter of the present
petitioners, it transpires that there were no
specific finding recorded on these points
while regularizing the services of the
petitioners. Moreover, the advertisement in
the newspapers and consitution of selection
committee as per Section of 16-E and 16-F
of the Act, 1921 was not done and
therefore, the whole selection process was
found doubtful.

25. That it is not out of place to
mention here that om the basis of
judgement and order dated 19.12.2017
passed in the PIL, a government order
dated 18.04.2019 was also issued, which
ratifies the decision taken by the answering
respondents on 23.08.2018."

41. Denying the averments made in
supplementary counter affidavit, it has been
stated in the supplementary rejoinder
affidavit that this Court in judgement dated
16.07.2009 in Writ Petition No.53709 of
2006 has held that the appointment of the
petitioners are valid .

42. When the matter was taken up on
08.11.2021, the case was adjourned for
09.11.2021. Learned Additional Advocate
General Sri Neeraj Tripathi on 09.11.2021
made a statement that as the objection
raised by the respondents have already
been rejected by this Court by the
judgements passed in various writ petitions
and they have attained finality, therefore,
the arrears of salary of the petitioners shall
be released, but as the sanction is to be
obtained from the State Government, some
time may be granted. He further placed on
record an order dated 09.11.2021 passed by
respondent
no.2.
The
order
dated
09.11.2021 passed by this Court reads as
under:-

"Pursuant to the order of this Court
dated 08.11.2021, Director of Education
(Secondary), U.P. Lucknow is present
before the Court. +

Sri Neeraj Tripathi, learned Additional
Advocate General on instruction states that
matter has been revisited by the Director
pursuant to the order of this Court dated
29.10.2018.