# Vinod Kumar Mishra v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 834
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-15
- **Case number:** Civil Misc. Writ Petition No. 7374 of 2007
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-mishra-v-state-of-u-p-and-others-41230
- **Pages:** 6

## Headnote

U.P. Intermediate Education Act 1921-S16 (3) and16 e-10 -Grant -of exemption
from requisite qualification-Petitioner
allowed to take intermediate classes in
Hindi subject-but in Graduation Sanskrit
was not the one of the subject as per
essential qualification required under
chapter II Appendix-A-parity claimed as
per Ram Ballabh Pathak-held-illegality
can not be allowed to perpetuated
However direction issued to Secretary to
examine
the
legality
of
grant
of
relaxation in accordance with law.

Held: Para 22

Although this Court may refuse the plea
of parity as raised by the petitioner qua
Sri Nandan Ballabh Pathak on the ground
that the illegality-cannot be permitted to
be perpetuated on the plea of parity or
similar treatment, yet the Court feels
that the matter with regard to Sri
Nandan Ballabh Pathak also requires
reconsideration
by
the
authorities,
concerned, not only for the purposes of
ensuring that the rule of law applies
equally to all as per Article 14 of the
Constitution of India more so when
public money is involved.

## Text

834 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 7374 of 2007

Vinod Kumar Mishra

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Abhishek Dwivedi
Sri Amitabh Tripathi

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act 1921-S16 (3) and16 e-10 -Grant -of exemption
from requisite qualification-Petitioner
allowed to take intermediate classes in
Hindi subject-but in Graduation Sanskrit
was not the one of the subject as per
essential qualification required under
chapter II Appendix-A-parity claimed as
per Ram Ballabh Pathak-held-illegality
can not be allowed to perpetuated
However direction issued to Secretary to
examine
the
legality
of
grant
of
relaxation in accordance with law.

Held: Para 22

Although this Court may refuse the plea
of parity as raised by the petitioner qua
Sri Nandan Ballabh Pathak on the ground
that the illegality-cannot be permitted to
be perpetuated on the plea of parity or
similar treatment, yet the Court feels
that the matter with regard to Sri
Nandan Ballabh Pathak also requires
reconsideration
by
the
authorities,
concerned, not only for the purposes of
ensuring that the rule of law applies
equally to all as per Article 14 of the
Constitution of India more so when
public money is involved.

(Delivered by Hon'ble Arun Tandon, J.)

1. Petitioner Vinod Kumar Mishra
claims to have been appointed as L.T.
Grade
Teacher
in
Ganesh
Shanker
Vidyarthi
Inter
College,
Kanpur
(hereinafter referred to as college) on
30.09.1989. The petitioner claims to have
been working as such since then and in
support thereof has placed reliance upon
the certificate issued by the Principal of
the institution. Petitioner is possessed of a
degree of M.A. in Hindi. However, at the
graduation level i.e. B.A. He did not have
Sanskrit as one of the subject. The Inter
College is added and recognized under the
provisions of the Intermediate Education
Act.
The
U.P.
High
School
and
Intermediate Colleges (Teachers and other
Employees) (Payment of Salary) Act,
1971 as well as those of the U.P.
Secondary Education Services Selection
Board Act, 1982 are fully applicable to
the teachers of the institution in question.

2. One Sri Amrit Lal Singh, who
was working as Lecturer Hindi in the
institution retired on 30th June, 2001.
Petitioner claims that he has been
permitted to teach Intermediate Classes
subsequent to retirement of Sri Amrit Lal
Singh. As the petitioner did not have
Sanskrit as one of the subject at the
graduation level [which is admittedly an
essential qualification prescribed under
Appendix-A
to
Chapter-II
of
the
regulations framed under the Intermediate
Education Act for being appointed as
Lecturer (for teaching Classes XI and
XII)], he has made an application under
Section 16E(3) of the U.P. Intermediate
Education Act to the Madhyamik Shiksha
Parishad U.P. Allahabad (Board) for grant
of necessary relaxation in the minimum
qualification prescribed. The petitioner,
3 All] Vinod Kumar Mishra V. State of U.P. and others
835
with reference to various documents
brought on record, alleges that the Board
has not taken any final decision in the
matter till date and therefore, seeks a writ
of
mandamus
commanding
the
respondents to grant exemption from the
essential qualifications prescribed for
appointment as Lecturer Hindi.

3. The petitioner has also brought on
record a copy of the order passed in
favour of one Sri Nandan Ballabh Pathak
(annexed as Annexure-10 to the writ
petition) where under the Regional
Secretary, Bareilly is said to have
communicated a decision of the Manyata
Samiti of the Bareilly Region dated 12th
November, 1997 granting relaxation in
the essential qualification prescribed in
the similar set of facts.

4. This Court, while entertaining the
present writ petition, on 12th February,
2007 framed two basic issues which arose
for consideration in this petition. The
issues so framed by this Court as per the
order dated 12th February, 2007 read as
follows:

"(a) Whether Section 16-E(3) proviso
survives even after enforcement of the
provisions of U.P. Secondary Education
Services
Selection
Board
Act
1982
inasmuch as 1982 Act; which provides
that appointment shall be made in
accordance with the provisions of the
U.P.
Secondary
Education
Services
Selection Board Act only which would
necessarily include the Rules framed
thereunder.
(b) Even if it is presumed that the
power
under
Section
16-E(3)
is
exercisable, the said power can be
exercised by the Madhyamik Shiksha
Parishad.
The
Director
of
Education/Joint Director of Education
has not authority of law to grant any
relaxation.

5. Under order of the Court the
original records pertaining to Sri Nandan
Ballabh Pathak have been produced
before this Court. On record is a letter of
the Deputy Secretary dated 28.02.2007,
relevant portion of which reads as
follows:

"mDr ds lEcU/k esa lwP; gS fd lEcfU/kr izdj.k ds
lEcU/k esa ek= 12 uoEcj] 1997 dh cSBd dh dk;Zokgh
1⁄4lHkkifr] ek0f'k0i0 ls vuqeksfnr1⁄2 miyC/k gS] ftldh
Nk;kizfr izsf"kr gSA 'ks"k leLr vfHkys[k@i=kofy;ka mRrjkapy
jkT; ds xBu ds le; jkeuxj 1⁄4uSuhrky1⁄2 izsf"kr dh tk
pqdh gSaA"

6. However, subsequently the
original records pertaining to the meeting
of the Manyata·Samiti of Madhyamik
Shiksha Parishad pertaining to Bareilly
Region have been produced before this
Court. The original minutes of the
meeting so produced have been taken on
record.

7. A personal affidavit has been filed
by the Secretary of the Madhyamik
Shiksha Parishad as well as by the
Director (Secondary Education); The
Secretary in paragraph 45 of his affidavit
has stated that under Section 13 of the
Intermediate
Education
Act
the
Madhyamik Shiksha Parishad (Board) has
been authorized to continue certain
committee
for
different
purposes,
accordingly there is a Manyata Samiti to
look
into
the
matters
related
to
recognition of the institution as well as for
relaxation in the essential qualification as
prescribed under Section 16E(3) of the
U.P. Intermediate Education Act. It has
further been stated that the Manyata
836 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Samiti was constituted at regional level
for Bareilly Region and the said Manyata
Samiti of the Bareilly Region had in fact
granted relaxation in favour of Sri Nandan
Ballabha in compliance to the judgment
and order of the Hon'ble High Court dated
22.02.1992 passed in Writ Petition No.
22209 of 1990. Various other facts with
regard to non-maintenance of the certain
records i.e. agenda of the meeting of the
Regional Level Committee has also been
stated.

8. The Chairman of the Board
namely the Director in paragraph 11 of
his counter affidavit has stated that the
Secondary Education Board, in view of
the decision taken at the level of Manyata
Samiti of the Board on 12.11.1997
exercising powers as conferred under
Section 16E(3), had granted exemption
from qualification prescribed in favour of
Sri Nandan Ballabh Pathak.

9. With regard to petitioner it has
been stated that the Manyata Samiti in its
meeting
held
on
25th
June,
2004
considered the request of the petitioner
and with reference to Section 16E(3) read
with regulation 2(3) of Chapter-VII as
well
as
Government
Order
dated
16.03.1979 decided to refuse relaxation in
the essential qualification prescribed. For
justifying the decision so taken, reliance
has
also
been
placed
upon
the
Government Order dated 17th March 1979
where under it has been provided that
relaxation from the essential qualification
of having Sanskrit as one of the subject at
graduation level (for promotion on the
post of Lecturer) is to be permitted only in
respect of teachers appointed prior to 5th
April, 1975. In respect of teachers
appointed subsequent to 5th April, 1975 it
is directed that there shall not be any
relaxation in the essential qualifications.

10. From the records, which have
been produced as well as from the stand,
which has been taken by the Secretary of
the Madhyamik Shiksha Parishad as well
as by the Director/Chairman of the Board,
following two divergent facts emerge:

(a) With
reference
to
Sri
Nandan
Ballabh Pathak it is stated that Regional
Level Manyata Samiti of the Bareilly
Region decided to grant relaxation in the
essential qualification prescribed in its
meeting dated 12th November, 1997.
From the records it is established that Sri
Nandan Ballabh Pathak was not appointed
as teacher in the institution concerned
prior to 1975. Therefore, the Government
Order dated 16th March, 1979 referred to
by the Chairman in his paragraph 9 of the
affidavit was equally applicable in the
case of Sri Nandan Ballabh Pathak. The
Manyata Samiti does not even refer to the
same nor any explanation has been
furnished by the Secretary or by the
Chairman qua non-consideration of the
said Government order viz-a-viz the
exemption granted to Sri Nandan Ballabh
Pathak, while the same Government
Order is being relied upon for refusing
similar exemption prayed for by the
petitioner.

11. It is further apparent from the
affidavit of the Chairman and the
Secretary that relaxation has been granted
by the Manyata Samiti at the regional
level, said to have been constituted with
reference
to
Section
13
of
the
Intermediate Education Act. Section 13
reads as follows:
3 All] Vinod Kumar Mishra V. State of U.P. and others
837
13. Appointment and Constitution
of Committees.-(1) The Board shall
appoint the following Committees and
different Committees may be appointed
for different areas of the State, namely:-
(a) Curriculum Committee,
(b) Examination Committee,
(c) Results Committee, 7374
(d) Recognition Committee, and
(e) Finance Committee."

12. from the aforesaid provision it is
apparent that the power to grant relaxation
in
the
essential
qualifications,
as
applicable at the relevant time vested with
the Board alone. The constitution of the
Board has been provided under Section
3(1) of the Intermediate Education Act.
Any committee constituted under Section
13 of the U.P. Secondary Education
Services Selection Board Act, 1982 is
only for the assistance of discharge of its
function by the Board. No provision of
the Intermediate Education Act permits
the Board to delegate its power to any
sub-committee and even otherwise having
regard to specific language of Section 16E (3), the relaxation, if any, in the
essential qualification could be granted by
the Board only. Since on record there is
no order of the Board granting relaxation
in favour of Sri Nandan Ballabh Pathak,
this Court has no hesitation to record that
the order issued in that regard on the
recommendation of the Regional Level
Manyata Samiti is no order in the eyes of
law with reference to Section 16-E(3).

13. The petitioner cannot be
permitted to take benefit of, or to claim
parity with such illegal and arbitrary
order, not contemplated by the Act.
Consequently,
the Court refuses to
entertain the plea of parity as claimed by
the petitioner with Sri Nandan Ballabh
Pathak.

14. This leads the Court to examine
the issue as to whether subsequent to
enforcement of U.P. Secondary Education
Services Selection Board Act, 1982, the
power conferred under Section 16-E (3)
of the Intermediate Education Act still
survive for grant of relaxation or not.

15. Section 16 of the U.P. Secondary
Education Services Selection Board Act,
1982 provides that appointment on the
post of teachers in recognized and added
Intermediate Colleges shall be made in
accordance with the said Act only and any
appointment to the contrary would be null
and void. Reference Section 16(2) of the
Act, which reads as follows:

"16(2). Any appointment made in
contravention of the provisions of subsection (1) shall be void."

16. Section 35 of the U.P. Secondary
Education Services Selection Board Act,
1982 (U.P. Act No. 5 of 1982) confers a
power to make rules for giving effect to
the provisions of the Act. U.P. Secondary
Education
Services
Selection
Board
Rules, 1998 have accordingly been
enforced. The qualifications prescribed
for appointment of teachers in recognized
Intermediate Colleges as per Rule 5 reads
as follows:

"5. Academic Qualifications.- A
candidate for appointment to a post of
teacher
must
possess
qualifications
specified in regulation 1 of Chapter II of
the
Regulations
made
under
the
Intermediate Education Act 1921."
838 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
17. Section 32 of the U.P. Secondary
Education Services Selection Board Act,
1982 declares that the provisions of the
Intermediate Education Act, insofar as
they are inconsistent with the provisions
of the U.P. Secondary Education Services
Selection Board Act, 1982, shall be
inapplicable and shall therefore not apply.

18. From the statutory provisions
noticed herein above, it may be noticed
that
the
U.P.
Secondary
Education
Services Selection Board Act lays down
minimum qualification for appointments
of assistant teachers to be the one
provided
for
under
Appendix-2
to
Chapter-II of the regulations framed
under the Intermediate Education Act, this
is a case of legislation by incorporation.
Meaning thereby that the qualifications
laid down in Appendix-A to Chapter-II of
the
regulations
framed
under
the
Intermediate Education Act are broadly
lifted and treated to be a part of the U.P.
Secondary Education Services Selection
Board Act, 1982 and rules framed
thereunder.

19. The U.P. Secondary Education
Services
Selection
Board
Act
does
provide for any power of relaxation in
respect of the qualifications so prescribed.
Consequently, appointments under the
U.P.
Secondary
Education
Services
Selection Board Act can be made only in
strict compliance of the qualifications
provided as per Appendix-A of ChapterII.

20. This Court records that the
provisions of Section 16-E(3) of the
Intermediate Education Act cease to be
operative qua appointment of teachers in
L.T. Grade/ Lecturer in recognized
Intermediate and High School (except
minority institutions). It is held that the
provisions of Section 16-E (3) of the
Intermediate Education Act, subsequent
to
enforcement
of
U.P.
Secondary
Education Services Selection Board Act,
1982, will have no application in respect
of the teachers who are required to be
appointed
in
recognized
institutions
(except minority institutions) under the
provisions
of
the
U.P.
Secondary
Education Services Selection Board Act.
It is, therefore, held that there exists no
power to grant relaxation in the essential
qualifications prescribed in respect of
appointment of teachers in recognized and
added Intermediate Colleges, appointment
where of is regulated by the provisions of
the U.P. Secondary Education Services
Selection Board Act, 1982. The relief
prayed for by the petitioner, for grant of
relaxation in the essential qualification, in
the facts of the present case cannot be
entertained.

21. At this stage the Court may also
record that petitioner is justified in
contending that the State cannot be
permitted to adopt two different standards
for two different teachers. Petitioner is
right in contending that there is nothing so
good about Sri Nandan Ballabh Pathak
that he can be granted relaxation from the
essential qualifications at the same time
the petitioner being refused similar
treatment.

22. Although this Court may refuse
the plea of parity as raised by the
petitioner qua Sri Nandan Ballabh Pathak
on the ground that the illegality-cannot be
permitted to be perpetuated on the plea of
parity or similar treatment, yet the Court
feels that the matter with regard to Sri
Nandan Ballabh Pathak also requires
reconsideration by the authorities, concerned,
3 All] Gulab Sokar V. Nagar Nigam, Allahabad and another
839
not only for the purposes of ensuring that
the rule of law applies equally to all as per
Article 14 of the Constitution of India
more so when public money is involved.

23. It is, therefore, provided that the
Director of Education shall exercise his
suo moto power under Section 16-E(10)
of the Intermediate Education Act and
shall
examine
the
legality
of
the
relaxation in the essential qualification
prescribed, as granted to Sri Nandan
Ballabh Pathak strictly in accordance with
law by means of a reasoned speaking
order after affording opportunity of
hearing to Sri Nandan Ballabh Pathak.
The aforesaid exercise may be completed
within four weeks from the date the
Standing Counsel communicate the order
passed today. In the facts of the case it is
further necessary to direct the Secretary,
Madhyamik Shiksha, U.P. Government to
examine the manner in which the
relaxation has been granted in favour of
Sri Nandan Ballabh Pathak, specifically
the issue of non-consideration of the
provisions of Section 16-E(3) read with
the Government Order dated 16th March,
1979. If it is found that there has been
deliberate disregard to the provisions as
well as the Government Order applicable,
the
officers
responsible
should
be
proceeded with departmentally.

24. Writ petition is dismissed
subject to the observations made above.

25. The original records produced
by the Standing Counsel be returned to
the Standing Counsel by the Bench
Secretary.

 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2007

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 48806 of 2000

Gulab Sonkar

...Petitioner
Versus
Nagar Nigam, Allahabad and another

 ...Respondents

Counsel for the Petitioner:
Sri V.P. Varshney

Counsel for the Respondents:
Sri Syed Atiq Ahmad
S.C.

Constitution
of
India,
Art.
226reconstruction of shop-G.T. Road passing
through
Allahabad-even
after
the
demolition
by
P.W.D.-major
State
Highways
samples-narrow
bridges,
dangerous
curves
surface-pothole
cracked
cement,
collapsed
culvertsmissing sidewalks-death of 75 people
every year-courts expressed its great
concern-general mandamus issued to all
the concerned court can not allow to
perpetual illegalities-petition dismissed.

Held: Para 9

Under
the
above
compelling
circumstances, we are recording these
observations to be conveyed to the
concerned
authorities
like
Regional
officers of National Highways Authority
of
India
located
in
Uttar
Pradesh,
Engineer-in-Chief,
U.P.
Public
Works
Department,
Lucknow
and
other
concerned authorities. Learned standing
counsel shall send a copy of this
judgment
and
order
to
the
State
Government
and
National
Highways
Authority of India by communicating it
through
Dr.
Ashok
Nigam,
learned