# Vinod Kumar Srivastava v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 1482
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-30
- **Case number:** Writ A No. 21492 of 2023
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-srivastava-v-state-of-u-p-ors-52562
- **Pages:** 31

## Headnote

A. Service Law - Salary - U.P. Secondary
Education Service Selection Board, 1982 -
Sections 18 & 33G(8) - The U.P. Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981 - The
action of St. terminating services and
stopping
salary
on
09.11.2023
was
against the statutory provisions as well as
the dictum of Hon'ble Apex Court. The GO
of 09.11.2023 had created the entire chaos in
the St. of U.P. as far as regularization of
candidates appointed prior to 30.12.2000. (Para
29)

In the St. ad hocism has been going on for last
40 years in the aided Institutions. The
Government from time to time had inserted
various provisions in the Act of 1982 for
regularising the services of teachers who were
appointed either on ad hoc basis or against a
short term vacancy. The candidates had been
litigating the matter before this Court either for
getting their salary post appointment, or for
getting their services regularised. Many of the
9 All. Vinod Kumar Srivastava Vs. State of U.P. & Ors.
1483
candidates have been working in these aided
Institutions for a long time on the basis of
interim order granted by this Court. (Para 24)

The last of the provision which was inserted in
the Act of 1982 was Section 33-G which has
provided the cut off date as 30.12.2000 for
consideration of regularization of services of
such ad hoc/ short term teachers. The St.
authorities had proceeded not to accord
consideration for all these teachers who were
appointed between the cut off date of 1985 to
2000 on the ground that the ad hocism was to
end in the St. as mandated by Hon'ble Apex
Court on 26.08.2000. (Para 25)

The two issues, one the appointment on ad hoc
basis post 2000 and those appointments prior to
2000 have to be dealt with separately by St.
authorities keeping in mind the two decisions of
Hon'ble Apex Court, one rendered in case of
Sanjay Singh (infra), and the other in case of
Raghvendra Prasad Pandey (infra). (Para 28)

On 26.08.2000, the Hon'ble Apex Court
never intended to stop the salary of those
candidates who were appointed prior to
30.12.2000 as Section 33-B, 33-C, 33-F
and
33-G
clearly
provided
for
regularization
of
all
the
teachers
appointed between the date given in the
said sections if the procedure provided
therein was complied with. (Para 30)

The GO of 09.11.2023 was issued on a wrong
premise and the Government had never taken
any stand before the Hon'ble Apex Court in case
of Sanjay Singh (infra) that the ad hocism was
to end for the candidates who were appointed
prior to 2000 and neither the St. had brought to
the notice of Hon'ble Apex Court the provisions
of Section 33-B, C, F and G. (Para 31)

From the counter affidavit filed by St. in
S.L.P. of Sanjay Singh (infra) it is clear
that the St. has accepted before the
Hon'ble Apex Court that regularization has
been undertaken u/s 33 and case of
Sanjay Singh (infra) does not fall for
consideration u/s 33 as he was appointed
after 2000. (Para 33)

B. The St. should not have mixed the two
issues of Sanjay Singh and regularization
to be undertaken u/s 33, which has
resulted into unnecessary litigation before
this Court and has caused financial
hardship to the petitioners for no fault of
theirs. (Para 34)

The St. has corrected its stand on 26.09.2024
and has issued a clarification, clarifying the GO
dated 09.11.2023. (Para 35)

This Court is faced with the task of considering
each and individual case on merits, as in most
of cases, the regularization Committee has
proceeded to reject the regularization of
candidates basically on the ground that relevant
documents were not placed before it when due
consideration was accorded. In many cases,
termination has taken place on the basis of
Government Order dated 09.11.2023.

Learned Additional Advocate General appearing
for the St. has clearly conceded to the fact that
all those matters which have been rejected by
regularization Committee on the basis, that
interim order was operating and c

## Text

_Characters 0–39,943 of 101,584. This is a partial read: ask again with offset=39943 for what follows._

1482 INDIAN LAW REPORTS ALLAHABAD SERIES
tax therefore, the proceedings initiated
against the petitioner under Section 74 of
the CGST Act are without jurisdiction for
the lack of basic ingredients required under
the said clause. So far as the argument
advanced by the learned counsel appearing
for the respondents that the writ petition
against the Show Cause Notice is not
maintainable, is concerned, we find that it
is consistent view of the Hon'ble Supreme
Court that if the Show Cause Notice is
without jurisdiction then the same can be
challenged by filing writ petition before the
High Court under Artilce 226 of the
Constitution of India.

26. In the present case, we do not find
that the basic ingredients required for
initiating proceedings under Section 74 of
the CGST Act are present in the impugned
Show Cause Notice dated 30.12.2023.
Therefore the entire exercise including the
Show Cause Notice is without jurisdiction
and thus this writ petition under Article 226
of the Constitution of India is maintainable.

27. In view of the aforesaid reasons,
we are of the categorical view that the
impugned Show Cause Notice dated
03.08.2024 in its present form lacks basic
ingredients to proceed in the matter under
Section 74 of the CGST Act. Therefore, the
impugned Show Cause Notice dated
03.08.2024 and the entire exercise initiated
pursuant thereto is absolutely without
jurisdiction and is liable to be quashed.

28. Accordingly, this writ petition is
allowed. The Show Cause Notice dated
03.08.2024 is quashed leaving it open for
Respondent
No.
2
to
initiate
fresh
proceedings under Section 74 of the CGST
Act against the petitioner by issuing a fresh
Show Cause Notice containing the basic
ingredients regarding fraud or wilful misstatement or suppression of facts to evade
tax, if they so exist.
----------
(2024) 9 ILRA 1482
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ A No. 21492 of 2023
connected with other cases

Vinod Kumar Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner
Avdhesh Narayan Tiwari, Shivendu Ojha,
Sr. Advocate

Counsel for the Respondents:
C.S.C.

A. Service Law - Salary - U.P. Secondary
Education Service Selection Board, 1982 -
Sections 18 & 33G(8) - The U.P. Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981 - The
action of St. terminating services and
stopping
salary
on
09.11.2023
was
against the statutory provisions as well as
the dictum of Hon'ble Apex Court. The GO
of 09.11.2023 had created the entire chaos in
the St. of U.P. as far as regularization of
candidates appointed prior to 30.12.2000. (Para
29)

In the St. ad hocism has been going on for last
40 years in the aided Institutions. The
Government from time to time had inserted
various provisions in the Act of 1982 for
regularising the services of teachers who were
appointed either on ad hoc basis or against a
short term vacancy. The candidates had been
litigating the matter before this Court either for
getting their salary post appointment, or for
getting their services regularised. Many of the
9 All. Vinod Kumar Srivastava Vs. State of U.P. & Ors.
1483
candidates have been working in these aided
Institutions for a long time on the basis of
interim order granted by this Court. (Para 24)

The last of the provision which was inserted in
the Act of 1982 was Section 33-G which has
provided the cut off date as 30.12.2000 for
consideration of regularization of services of
such ad hoc/ short term teachers. The St.
authorities had proceeded not to accord
consideration for all these teachers who were
appointed between the cut off date of 1985 to
2000 on the ground that the ad hocism was to
end in the St. as mandated by Hon'ble Apex
Court on 26.08.2000. (Para 25)

The two issues, one the appointment on ad hoc
basis post 2000 and those appointments prior to
2000 have to be dealt with separately by St.
authorities keeping in mind the two decisions of
Hon'ble Apex Court, one rendered in case of
Sanjay Singh (infra), and the other in case of
Raghvendra Prasad Pandey (infra). (Para 28)

On 26.08.2000, the Hon'ble Apex Court
never intended to stop the salary of those
candidates who were appointed prior to
30.12.2000 as Section 33-B, 33-C, 33-F
and
33-G
clearly
provided
for
regularization
of
all
the
teachers
appointed between the date given in the
said sections if the procedure provided
therein was complied with. (Para 30)

The GO of 09.11.2023 was issued on a wrong
premise and the Government had never taken
any stand before the Hon'ble Apex Court in case
of Sanjay Singh (infra) that the ad hocism was
to end for the candidates who were appointed
prior to 2000 and neither the St. had brought to
the notice of Hon'ble Apex Court the provisions
of Section 33-B, C, F and G. (Para 31)

From the counter affidavit filed by St. in
S.L.P. of Sanjay Singh (infra) it is clear
that the St. has accepted before the
Hon'ble Apex Court that regularization has
been undertaken u/s 33 and case of
Sanjay Singh (infra) does not fall for
consideration u/s 33 as he was appointed
after 2000. (Para 33)

B. The St. should not have mixed the two
issues of Sanjay Singh and regularization
to be undertaken u/s 33, which has
resulted into unnecessary litigation before
this Court and has caused financial
hardship to the petitioners for no fault of
theirs. (Para 34)

The St. has corrected its stand on 26.09.2024
and has issued a clarification, clarifying the GO
dated 09.11.2023. (Para 35)

This Court is faced with the task of considering
each and individual case on merits, as in most
of cases, the regularization Committee has
proceeded to reject the regularization of
candidates basically on the ground that relevant
documents were not placed before it when due
consideration was accorded. In many cases,
termination has taken place on the basis of
Government Order dated 09.11.2023.

Learned Additional Advocate General appearing
for the St. has clearly conceded to the fact that
all those matters which have been rejected by
regularization Committee on the basis, that
interim order was operating and cannot be
considered in terms of Section 33-G(8) needs
fresh consideration in the light of the conditions
mentioned in the said provisions. (Para 37)

Writ petition disposed of. (E-4)

Precedent followed:

1. Sanjay Singh & ors.Vs St. of U.P. & ors., Civil
Appeal
No.
8300
of
2016,
decided
on
26.08.2020 (Para 3)

2. Abhishek Tripathi Vs St. of U.P. & ors., Writ
Petition No. 655 (S/S) of 2014 (Para 9)

3. Sanjay Singh Vs St. of U.P. & ors., (2013) 1
UPLBEC 758 (Para 9)

4. Pradeep Kumar Vs St. of U.P. & ors., Writ-A
No. 22520 of 2013, decided on 01.05.2013
(Para 9)

5. Daya Shanker Mishra Vs District Inspector of
Schools & ors., 2011 (1) ESC 221 (Para 81)
1484 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Vijay Shyam Dwivedi Vs St. of U.P. & ors.,
Writ -A No. 22154 of 2018, decided on
22.10.2018 (Para 98)

Present writ petitions assail orders dated
21.11.2023 and 22.11.2023, passed by
District Inspector of Schools, Jalaun at
Orai, stopping salary of the petitioner in
terms of GO dated 09.11.2023.

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. This bunch of writ petitions raises
somewhat
similar
question
for
consideration by this Court filed under
Article 226 of the Constitution of India.
The leading case being Writ-A No.21492
of 2023 (Vinod Kumar Srivastava vs. State
of U.P. and Ors.), wherein orders dated
21.11.2023 and 22.11.2023 passed by
District Inspector of Schools, Jalaun at Orai
is under challenge stopping salary of the
petitioner in terms of Government Order
dated 09.11.2023.

2. Petitioners before this Court have
raised
serious
question
as
to
the
competence of the Regional Regularization
Committee
constituted
by
the
State
Government for looking into regularization
of the Assistant Teachers appointed against
the short term vacancy/ ad hoc appointment
in view of the provisions of Section 33-B,
C, F, and G.

3. The claim for regularization in
most of cases has been rejected by the
Committee relying upon the decision
rendered by the Apex Court in case of
Sanjay Singh and others vs. State of
Uttar Pradesh and others, Civil Appeal
No. 8300 of 2016, decided on 26.08.2020
and Government Order dated 09.11.2023.

4. The State Government had
promulgated U.P. Secondary Education
Service
Selection
Board
Act,
1982
(hereinafter called as "Act of 1982").
Section 33-B was inserted by U.P. Act,
1991
w.e.f.
06.04.1991
relating
to
regularization
of
appointment
of
all
teachers other than the Principal or Head
Master who was appointed by promotion or
by direct recruitment in the Lecturer grade
or Trained Graduate grade on or before
May 14, 1991 or in the Certificate of
Teaching grade (CT Grade) on or before
May 13, 1989 against a short term vacancy
in accordance with Paragraph 2 of the The
U.P.
Secondary
Education
Services
Commission (Removal of Difficulties)
(Second) Order, 1981 and such vacancy
was
subsequently
converted
into
a
substantive vacancy.

5. It was also provided that any
appointment made by direct recruitment on
or after July 14, 1981 but not later than
June 12, 1985 on ad hoc basis against a
substantive vacancy in CT grade through
advertisement and such appointment being
approved by the Inspector, or appointment
made by promotion or by direct recruitment
on or after July 31, 1988 but not later than
May 14, 1991 on ad hoc basis against a
substantive vacancy in accordance with
law.

6. The State thereafter inserted
Section 33-C through U.P. Act No.25 of
1998 w.e.f. 20.04.1998 for regularization of
certain more appointments of teachers post
May 14, 1991 but not later than August 6,
1993 on ad hoc basis against substantive
vacancy in accordance with Section 18, in
the Lecturer grade or Trained Graduate
grade.
9 All. Vinod Kumar Srivastava Vs. State of U.P. & Ors.
1485

7. The Act of 1982 was further
amended and Section 33-F was inserted by
U.P. Ordinance No.19 of 2000 for
regularization of appointment against short
term vacancies of teachers appointed by
promotion or by direct recruitment in the
Lecturer's grade or Trained Graduate grade
on or after May 14, 1991 but not later than
August 6, 1993 against a short term
vacancy in accordance with Paragraph 2 of
The U.P. Secondary Education Services
Commission (Removal of Difficulties)
(Second) Order, 1981 as amended from
time to time.

8. Section 33-G was inserted by U.P.
Act
No.7
of
2016
providing
for
regularization of certain more appointments
against the short term vacancies of teachers
other than the Principal or Head Master
who 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 U.P. Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981 as
amended from time to time. It was also
provided that those teachers who were
appointed by promotion or by direct
recruitment on or after August 7, 1993, but
not later than December 30, 2000 on ad hoc
basis
against
substantive
vacancy
in
accordance with Section 18 in Lecturer
grade or Trained Graduate grade and
possesses the qualification as provided
under the U.P. Intermediate Education Act,
1921 (hereinafter called as "Act, 1921")
would be considered for regularization.

9. It appears that the matter for
regularization of Assistant Teachers came
up before Division Bench of this Court in
case of Abhishek Tripathi vs. State of
U.P. and others, Writ Petition No. 655
(S/S) of 2014, who was appointed on the
post of Lecturer in Hindi in the year 2013,
the Division Bench found that the view
taken in case of Sanjay Singh vs. State of
U.P. and others (2013) 1 UPLBEC 758 by
Co-ordinate Bench was not correct and was
overruled and the decision taken in case of
Pradeep Kumar vs. State of U.P. and
Ors., Writ-A No.22520 of 2013, decided
on 01.05.2013, was correct and the Court
refused
to
grant
the
benefit
of
regularization. Sanjay Singh and others
preferred a Special Leave Petition before
Hon'ble Apex Court which was converted
into Civil Appeal No.8300 of 2016. The
Apex Court found that the adhocism was to
end in regard to appointment of Assistant
Teacher,
and
by
judgment
dated
26.08.2020 exercising power under Section
142 of the Constitution held as under:-

"7. It is in the conspectus of all
the
aforesaid
circumstances
that
we
consider appropriate to issue the following
directions in exercise of power under
Article 142 of the Constitution of India:

(a) All the petitioners/appellants
and applicants before us and for that
matter all persons eligible under the
advertisement will be permitted to appear
for one single examination.

(b) Such of the persons who are
successful, would have to go through a
process of interview insofar as the post of
lecturers is concerned, as we are informed
that the post of TGTs the interviews have
been dispensed with.

(c) We are inclined to give some
weightage to the persons who have worked
as TGT and lecturers depending on the
period of service rendered. It is respondent
No.3-Commission which will have to tweak
this aspect and work out giving some
weightage to both TGT and lecturers
1486 INDIAN LAW REPORTS ALLAHABAD SERIES
depending on the period of service
rendered. In the case of TGTs, such
weightage will have to form a part of the
total marks while in case of the lecturers
such weightage can be given in the process
of interview.

(d) The advertisement to be
issued should contain the terms of these
directions issued by us today.

(e) We make it clear that the
decision as aforesaid will be final of the
Commission and no further litigation will
be entertained in respect thereof.

(f) Insofar as the verification of
past service is concerned, the concerned
teachers/lecturers
would
give
the
particulars and details to the Commission
for obtaining such weightage and that
aspect will be verified by the Commission
in consultation with the State Government
as we are told that it is the State
Government
which
would
have
the
wherewithal to do the needful. Needless to
say that aspect will also be final without
any further litigation being entertained in
that behalf.

(g) In view of the weightage
given, for the same the examination process
can be completed.

(h) The other aspect is that apart
from the weightage, the period which has
been verified as having been spent in
teaching as adhoc, would be counted for
purposes of retiral benefits of the TGTs and
Lecturers."

10. Pursuant to the judgment of the
Apex Court, State proceeded to issue the
advertisement
for
regularizing
the
services of the ad hoc appointees in the
educational institution. It appears that
some clarification application was moved
being M.A. No.818 of 2021 before
Hon'ble Apex Court in Civil Appeal
No.8300 of 2016. The Apex Court
clarified its earlier order and passed the
following order :-

"Thus, only the remains issue
consideration
of
these
18
persons
appointed who are stated to had not been
strictly appointed in terms of Section 16
(E) 11 of the said Act.

In view of the large number of
vacancies in recruitment and the passage
of time for which they have worked, to
put a quietus to the issue, we consider
appropriate that these 18 people may
also be given appointment. We do so by
exercising our jurisdiction under Article
142 of the Constitution of India to do
complete justice to the parties. The list of
these applicants be published on the web
site within a week.

Insofar as the persons who have
informed not to have been recruited in
compliance of Section 16 (E) 11, that
does not take away the obligation of the
Institute to pay those people the salary
having taken work from them. This is the
burden of the Management and we cannot
burden the Government.

Application stands disposed of.

The necessary action be taken
by the respondent(s) within a maximum
period of two months from today.

We make it clear that this puts a
quietus to the complete issue and before
us or entertained. no further proceedings
before the High Court are to be
entertained."

11. The State thereafter proceeded to
regularize
the
services
of
all
those
candidates who were appointed on ad hoc
basis post 2000 and had appeared in
pursuance of the advertisement.

12. In one of the matters relating to
Section 33-G, one Raghvendra Prasad
9 All. Vinod Kumar Srivastava Vs. State of U.P. & Ors.
1487
Pandey had filed a writ petition before
Lucknow Bench of this Court. The said
writ petition was allowed directing the
State to proceed in accordance with Section
33-G. The State filed a Special Appeal
Defective No.103 of 2023 before the
Division Bench at Lucknow which was
rejected by the order dated 03.03.2023.
Against the said judgment, the State had
preferred a Special Leave to Appeal before
Hon'ble Apex Court bearing No.13023 of
2023, which was dismissed on 17.07.2023
upholding the order passed by the High
Court, which is as under:-

"Application for impleadment is
rejected.

The impugned judgment dated
03.03.2023 takes care of the interest of the
petitioner in the following terms:

"Thus,
continuance
of
the
respondents- petitioners on adhoc capacity
is subject to their consideration for
substantive appointment in terms of Section
33G and further that they shall cease to
remain adhoc appointees from such date as
the State Government may provide. The
appellants-State
authorities
shall
thus
undertake
the
aforesaid
exercise
as
envisaged under Section 33G in respect of
all
the
respondents-
petitioners
and
conclude the same, as expeditiously as
possible."

We really don't see why they
should have come to this Court in view of
the aforesaid liberty granted and it is for
the petitioner to examine the case under the
relevant statutory provision.

The Special Leave Petition is
dismissed.

Pending
applications
stand
disposed of."

13. It appears that the State
Government thereafter proceeded to issue a
Government Order on 09.11.2023 wherein
the reference as to the decision rendered in
case of Abhishek Tripathi (supra) as well
as decision of the Apex Court rendered in
case of Sanjay Singh (supra) was noted
down by the State Government, and it
proceeded to hold in paragraph 4 and 5 of
the Government Order that the Assistant
Teachers appointed on ad hoc basis were
not entitled to continue after the decision
rendered on 26.08.2020, as they were not
appointed in accordance with provisions of
Section 18 of the Act, 1982 between the cut
off date mentioned in the said paragraph.
The salary was also directed to be stopped
immediately and the services of such
Assistant Teachers stood terminated from
the said date. Relevant paragraphs 4 and 5
of the Government Order are extracted
hereas under:-

"4- अतः सिियगत स सिल अपील िंख्य -
8300/2016 िंजय स िंह ि अन्य बन म उ०प्र० र ज्य ि अन्य
एििं इ े म्बसन्ित सम लेसनय अप्लीकेिन िंख्य -
818/2021 में म ० िोच्च न्य य लय द्व र प ररत आदेि
सदन िंक 26.08.2020 एििं 07.12.2021 के आलोक एििं
उपयुाि िसणात सस्थसत एििं तथ्यों के आि र पर मुझे सनम्नित् कहने
क सनदेि हुआ है :-

1. अि कीय ह यत प्र प्त म ध्यसमक सिद्य लयों
में क यारत ऐ े तदथा सििक, सजनकी सनयुसि ीिी भती द्व र
अल्पक सलक ररसि के पेि प्रिि श्रेणी य प्रसिसित स्न तक
श्रेणी में 07 अगस्त, 1993 को य उ के पश्च त सकन्तु 25
जनिरी, 1999 के पश्च त नहीं, मय- मय पर यथ िंिोसित
उ०प्र० म ध्यसमक सिि ेि आयोग (कसठन ईयों को दूर करन )
(सद्वतीय) आदेि, 1981 के पैर -2 के अन्तगात असनयसमत रूप े
की गयी है और उनक सिसनयसमतीकरण नहीं सकय गय है, की
तदथा ि यें म प्त सकये ज ने क सनणाय सलय ज त है।
अथि

मौसलक ररसि के पेि प्रिि श्रेणी य प्रसिसित
स्न तक श्रेणी में ीिी भती द्व र 07 अगस्त, 1993 को य उ के
पश्च त सकन्तु 30 सद म्बर, 2000 के पश्च त नहीं, ि र -18 के
अन्तगात असनयसमत रूप े की गयी है. और उनक सिसनयसमतीकरण
1488 INDIAN LAW REPORTS ALLAHABAD SERIES
नहीं सकय गय है, की तदथा ि यें म प्त सकये ज ने क सनणाय
सलय ज त है।
अथि

30 सद म्बर, 2000 के पश्च त इण्टरमीसडएट सिि
असिसनयम, 1921 की ि र -16 (ई)-11 के अन्तगात की गयी
है, की तदथा ेि यें म प्त सकये ज ने क सनणाय सलय ज त है।

2. उि तदथा सििकों में े िै े तदथा सििक
सजनक िेतन भुगत न भ ० िोच्च न्य य लय, नई सदल्ली में योसजत
स सिल अपील िंख्य -8300/2016 िंजय स िंह ि अन्य िन म
उ०प्र० र ज्य ि अन्य में प ररत आदेि सदन िंक 26.08.2020
तक होत रह है एििं उि आदेि सदन िंक 26.08.2020 के
क रण प्रभ सित अथि अिरुद्ध हुआ है. के अििेि िेतन क
भुगत न ि न देि सनगात होने की सतसथ तक सकये ज ने की स्िीकृसत
एतद्व र इ िता के अिीन प्रद न की ज ती है सक उयत सतसथ तक
उनके द्व र की गयी तदथा था ेि यें भी तथ्यों े प्रम सणत ि
 त्य सपत्त हों।

3. उपयुाि पररसि में आने ि ले िैरो तदथा सििक,
सजनकी क ल न्तर में सििण क या सकये ज ने / ेि िसि के दौर न
आकसस्मक मृत्यु हो गयी हो, उनके िैि उत्तर सिक री / नॉसमनी को
मृत सििक के सििण क या सकये ज ने की अिसि तक के अििेि
िेतन क भुगत न सिसिित् र त्य पनोपर न्त सकये ज ने की स्िीकृसत
प्रद न की ज ती है।

4. सनयम नु र प्रसकय त्मक क याि ही म्पन्न कर
अििेि िेतन के भुगत न की क याि ही ि न देि सनगात होने की
सतसथ े 30 सदि के अन्तगात पूणा कर ली ज येगी। यसद उयि
अिसि के अन्तगात अििेि देयक क भुगत न ुसनसश्चत नहीं सकय
ज त है तो म्बसन्ित क उत्तरद सयत्ि सनि ाररत कर उ के सिरुद्ध
सनयम नु र सिभ गीय क याि ही की ज येगी।

5. अििेि िेतन भुगत न करते मय आगसणत
िनर सि की िुद्धत की ज ाँच / परीिण कर सलय ज येग । भुगत न
करने े पूिा यह भी ुसनसश्चत कर सलय ज य सक प्रश्नगत सििक
द्व र उि अिसि में सििण क या सकय गय हो और उि अिसि क
िेतन भुगत न उ े नहीं सकय गय हो।"

14. After the issuance of Government
Order dated 09.11.2023, the Educational
Authorities throughout the State proceeded
to terminate the services of all the ad hoc
appointees and teachers appointed against
short term vacancy upto December 30,
2000
and
their
salary
was
stopped
immediately.

15. Number of writ petitions were
filed before this Court challenging the
Government's action terminating their
services and stopping the salary of such ad
hoc/ short term appointees who were
appointed upto December, 2000. By orders
of this Court dated 04.01.2024, it was
directed to the State authorities to release
the salary of such ad hoc teachers and their
services were not to be dispensed with
without leaving of the Court. In the
meantime, their papers were to be placed
before Regional Regularization Committee
for due consideration in accordance with
Section 33-B, C, F and G. The said order is
extracted hereas under:-

"1.
All
these
five
petitions
captioned above are being taken up
together as they involve same legal issue.

2. Heard learned counsel for the
parties.

3. The controversy involved in
these petitions have arisen on account of a
Government Order issued by the State
Government on 09.11.2023 which has been
challenged in the other connected matters
whereby the State Government has directed
that in all those cases where the ad hoc
teachers, though working, have not been
found to be entitled to be regularized under
Section 33-G of the U.P. Secondary
Education Services Selection Board Act,
1982 (hereinafter referred to as 'Act of
1982'), their services may be dispensed
with.

4. The argument advanced by
learned Senior Advocate, Sri R.K. Ojha, for
all the petitioners is that the education
authorities have started acting on an
executive
fiat
issued
by
the
State
Government under the said Government
Order, by directing for termination of
services of such ad hoc teachers even
without looking into the matter as to
9 All. Vinod Kumar Srivastava Vs. State of U.P. & Ors.
1489
whether
their
respective
claims
for
regularization has been considered at all
previously or not. It is submitted that this
approach of the Education Authorities in
following the mandate contained in the
Government Order without verifying the
facts is absolutely an arbitrary exercise of
discretion at their end. It is argued that
petitioners in these cases have been
working as ad hoc Assistant Teachers since
1997 as their source of appointments was
the Second Removal of Difficulties Order,
1982 and Section 18 of the U.P. Secondary
Education Services Selection Board Act,
1982 (Act No.5 of 1982), and, therefore,
their claim for regularization was liable to
be accorded due consideration in view of
Section 33-G of the Act No.5 of Act of 1982
as according to him they fall within the
zone of consideration.

5. Sri Ojha, learned Senior
Advocate, has placed before this Court a
circular letter issued by the Additional
Director
of
Education
(Secondary)
directing all the Regional Joint Director of
Education on 03.01.2024 to submit report
regarding disposal of the matters of
regularization under Section 33-G by
05.01.2024. It is submitted that no such
exercise can be undertaken or completed
within the short span of time as suggested
in the circular letter. However, in matters
where regularization has already taken
place there is no need to furnish such
report as those teachers have stood
regularized. He submits that this letter is
nothing but an eyewash to somehow delay
the proceedings pending before this Court
as there is no interim protection granted to
such
teachers.
Learned
Advocates
appearing in the connected matters, have
also placed a circular letter issued by the
Joint Director of Education, 7th Region,
Gorakhpur wherein the report has been
called for with regard to the teachers ,
whether
fall
within
the
zone
of
consideration for regularization or not,
otherwise those who are not covered, the
action pursuant to the Government Order
dated 09.11.2023 may take place.

6. Sri Ashok Khare, learned
Senior Advocate who has also appeared
not as a counsel in this case but in other
identical matters, informs the Court that
several petitions of identical nature were
liable to come today but have not come on
board on account of some technical glitch
in computer system.

7. Sri R.C. Dwivedi, learned
Advocate also prays the similar plea so as
Mr. Adarsh Singh, Mr. Sankalp Narain, Sri
Alok Dwivedi, Sri Gautam Baghel and
some
other
advocates
appearing
in
identical matters and they have taken the
same plea that those matters may also be
listed along with this petition as the law
point being same.

8. They have pressed for their
writ petitions being Writ -A Nos. 21361 of
2023, 21376 of 2023, 21332 of 2023, 21420
of 2023, 21398 of 2023, 21423 of 2023,
21402 of 2023, 21309 of 2023, 21383 of
2023, 21307 of 2023.

9.
Sri
Khare
has
further
submitted that some of those petitioners
and such other teachers are also seeking
regularization under Section 33-B, C, F
and G and so their services may also not be
terminated.

10. It is also argued on behalf of
the petitioners that in a matter of SLP
arising out of a Division Bench judgment of
this Court dated 30.03.2022 in Special
Appeal (Defective) No. 103 of 2023
Supreme Court has noticed the direction
for consideration of the State to undertake
the exercise for regularization of eligible
teachers under Section 33-G of Act No.05
of 1982, while dismissing the special leave
petition.
1490 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Upon a pointed query being
made to learned Additional Advocate for
the State-respondents as to why the
authorities are in such a hurry to call for
such reports within three or four days as is
reflected from the letter of the Additional
Director
(Secondary)
U.P.,
learned
Additional Chief Standing Counsel seeks
time to verify the facts and Director of
Education will certainly be ensuring that
no illegality is committed.

12. This Court may grant time of
course to verify the facts but the Court
cannot be oblivious to the fact that these
teachers have been working for petty long
time and are now directed to be fired
without notice. The Court is of prima facie
view that their claim for regularization was
liable to be considered in the first instance
before taking any action pursuant to the
Government Order dated 09.11.2023. The
relevant paragraph no.4 of the Government
Order dated 09.11.2023 is reproduced
hereunder:

"4- अतः सिियगत स सिल अपील िंख्य -
8300/2016 िंजय स िंह ि अन्य िन म उ०प्र० र ज्य ि अन्य
एििं इ े म्बसन्ित सम लेसनय अप्लीकेिन िंख्य -
818/2021 में म ० िोच्च न्य य लय द्व र प ररत आदेि
सदन िंक 26.08.2020 एििं 07.12.2021 के आलोक एििं
उपयुाि िसणात सस्थसत एििं तथ्यों के आि र पर मुझे सनम्नित् कहने
क सनदेि हुआ है:-

1. अि कीय ह यत प्र प्त म ध्यसमक सिद्य लयों
में क यारत ऐ े तदिा सििक, सजनकी सनयुसि ीिी भती द्व र
अल्पक सलक ररसि के पेि प्रिि श्रेणी य प्रसिसित स्न तक
श्रेणी में 07 अगस्त, 1993 को य उ के पश्च त सकन्तु 25
जनिरी, 1999 के पश्च त नहीं, मय- मय पर यथ िंिोसित
उ०प्र० म ध्यसमक सिि ेि आयोग (कसठन ईयों दूर करन )
(सद्वतीय) आदेि, 1981 के पैर -2 के अन्तगात असनयसमत रूप े
की गयी है और उनक सिसनयसमतीकरण नहीं सकय गय है, की
तदिा ेि यें म н सकये ज ने क सनणाय सलय ज त है।

अथि
मौसलक ररसि के पेि प्रिि श्रेणी य प्रसिसित स्न तक श्रेणी में
 ीिी भती द्व र 07 अगस्त, 1993 को य उ के पश्च त सकन्तु
30 सद म्बर, 2000 के पश्च त नहीं, ि र - 18 के अन्तगात
असनयसमत रूप े की गयी है और उनक सिसनयसमतीकरण नहीं
सकय गय है, की तदथा ेि यें म प्त सकये ज ने क सनणाय सलय
ज त है।अथि

30 सद म्बर, 2000 के पश्च त इण्टरमीसडएट सिि
असिसनयम, 1921 की ि र -16 (ई)-11 के अन्तगात की गयी
है, की तदथा ेि यें म प्त सकये ज ने क सनणाय सलय ज त है। I

2. उि तदथा सििकों में े िै े तदथा सििक
सजनक िेतन भुगत न म ० िोच्च न्य य लय, नई सदल्ली में योसजत
स सिल अपील िंख्य -8300/2016 िंजय स िंह ि अन्य बन म
उ०प्र० र ज्य ि अन्य में प ररत आदेि सदन िंक 26.08.2020
तक होत रह है एििं उि आदेि सदन िंक 26.08.2020 के
क रण प्रभ सित अथि अिरूद्ध हुआ है, के अििेि िेतन क
भुगत न ि न देि सनगात होने की सतसथ तक सकये ज ने की स्िीकृसत
एतद् द्व र इ िता के अिीन प्रद न की ज ती है सक उि सतसथ तक
उनके द्व र की गयी तदिा ेि यें भी तथ्यों े प्रम सणत ि त्य सपत
हों।

3. उपयुाि पररसि में आने ि ले िै े तदिा सििक,
सजनकी क ल न्तर में स द ण क या सकये ज ने/ ेि िसि के दौर न
आकसस्मक मृत्यु हो गयी हो, उनके िैि उत्तर सिक री/ नॉसमनी को
मृत सििक के सििण क या सकये ज ने की अिसि तक के अििेि
िेतन क भुगत न सिसिित् त्य पनोपर न्त सकये ज ने की स्िीकृसत
प्रद न की ज ती है।

4. सनयम नु र प्रसिय त्मक क याि ही म्पन्न कर
अििेि िेतन के भुगत न की क याि ही ि न देि सनगात होने की
सतसथ े 30 सदि के अन्तगात पूणा कर ली ज येगी। यसद उि
अिसि के अन्तगात अििेप देयक क भुगत न ुसनसश्चत नहीं सकय
ज त है तो म्बसन्ित क उत्तरद सयत्ि सनि ाररत कर उ के सिरुद्ध
सनयम नु र सिभ गीय क याि ही की ज येगी।"

13.
From
the
recitals
as
contained in the directives issued in Sub
Clause-1 of Clause 4 of the Government
Order, it is very much clear that the
services of those Assistant Teachers or
Lecturers as the case may be, are required
to
be
dispensed
with
where
their
appointments have been found to be
illegal/invalid not worth regularization.
Meaning thereby there has to be a fact
9 All. Vinod Kumar Srivastava Vs. State of U.P. & Ors.
1491
finding enquiry before such appointments
are finally annulled.

14. Learned Senior Counsel for
the petitioners submits that petitioners are
not aggrieved by Clauses 2, 3 and 4 of the
Government Order as they are not
applicable to petitioners. Other learned
Advocates have aggreed with Mr. Ojha. At
this stage, it is relevant to reproduce the
letter of the Regional Joint Director of
Education, Gorakhpur dated 18.12.2023
which refers to a situation only where such
regularization could not have been taken
place for not falling within the zone of
consideration
for
regularization.
The
relevant paragraph nos.1 and 2 of the
order dated 18.12.2023 is reproduced
hereunder:

"सनयम नु र प्रसिय त्मक क याि ही म्पन्न कर
अििेि िेतन के भुगत न की क याि ही ि न देि सनगात होने की
सतसथ े 30 सदि के अन्तगात पूणा कर ली ज येगी। यसद उि
अिसि के अन्तगात अििेप देयक क भुगत न ुसनसश्चत नहीं सकय
ज त है तो म्बसन्ित क उत्तरद सयत्ि सनि ाररत कर उ के सिरुद्ध
सनयम नु र सिभ गीय क याि ही की ज येगी।"

15. Upon bare reading of these
two above quoted paragraphs, it becomes
very much clear that the exercise is yet to
be undertaken to asses and analyze the fact
position whether a particular teacher is
entitled for regularization. Whether this
process has undergone already or not is not
clear at this stage, atleast from the above
quoted Government Order and the circular
letter. It is also reflected from the circular
letter of the Regional Joint Director of
Education (Secondary), U.P. Prayagraj
which is issued on behalf of the Director of
Education (Secondary) Prayagraj dated
03.01.2024 that the report has been called
for. The entire letter dated 03.01.2024 is
reproduced hereunder:

""प्रेिक,

सिि सनदेिक (म ध्यसमक), उ०प्र० सिि म न्य
(1) तृतीय अनुभ ग प्रय गर ज। ेि में,

 मस्त मण्डलीय िंयुि सिि सनदेिक, 2- मस्त
सजल सिद्य लय सनरीिक, I उत्तर प्रदेि। उत्तर प्रदेि।

पत् िंक म न्य (1) तृतीय / 18716/202324 सदन िंक 03-01-2024

सिियः म ननीय िोच्च न्य य लय, नई सदल्ली में
योसजत सििेि अनुज्ञ य सचक - 13023/2023 उत्तर प्रदेि
 रक र ि अन्य बन म र घिेन्र प्र द प ण्डेय ि अन्य में म न०
 िोच्च न्य य लय द्व र प ररत आदेि सदन िंक 17-7-2023 के
अनुप लन के म्बन्ि में।

सिियः म ननीय िोच्च न्य य लय, नई सदल्ली में
योसजत सििेि अनुज्ञ य सचक - 13023/2023 उत्तर प्रदेि
 रक र ि अन्य बन म र घिेन्र प्र द प ण्डेय ि अन्य में म न०
 िोच्च न्य य लय द्व र प ररत आदेि सदन िंक 17-7-2023 के
अनुप लन के म्बन्ि में।

महोदय,

उपयुाि सिियक सनदेि लय के पत् िंक म न्य (1)
तृतीय/14780-800/2023-24 सदन िंक 30-8-2023
पत् िंक म न्य (1) तृतीय/15252-71/2023-24 सदन िंक
12- 9-2023, पत् िंक म न्य (1) तृतीय/16212/202324 सदन िंक 17-10-2023 एििं पत् िंक म न्य (1) तृतीय /
16788/2023-24 सदन िंक 02-11-2023 क िंदभा ग्रहण
करने क कि करें, सज के द्व र म न० िोच्च न्य य लय में योसजत
सििेि अनुज्ञ य सचक -13023/2023 उत्तर प्रदेि रक र ि
अन्य बन म र घिेन्र प्र द प ण्डेय ि अन्य में म न० िोच्च
न्य य लय द्व र प ररत आदेि सदन िंक 17-7-2023 े
आच्ि सदत एििं सदन िंक 07 अगस्त, 1993 े सदन िंक 30
सद म्बर, 2000 तक सनयुि मस्त सििकों के सिसनयसमतीकरण
के प्रकरणों को भ र -33 (जी) के अन्तगात सिभ गीय
सनयमों/सिसनयमों के अन्तगात सनस्त ररत करते हुए कृत क याि ही की
 ूचन सनदेि लय को उपलब्ि कर ये ज ने के सनदेि सदये गये थे,
सकन्तु ि िंसित आख्य / ूचन अद्यतन अप्र प्त है।

अतः प्रश्नगत प्रकरण में आपको पुनः सनदेसित सकय
ज त है सक अपने-अपने मण्डल े म्बसन्ित सदन िंक 07 अगस्त,
1993 े सदन िंक 30 सद म्बर, 2000 के मध्य सनयुि मस्त
सििकों के सिसनयसमतीकरण के प्रकरणों को ि र -33 (जी) के
अन्तगात सिभ गीय सनयमों/सिसनयमों के अन्तगात सनस्त ररत करते हुए
सनस्त रण आख्य िंलग्न प्र रूप पर सदन िंक 05-01-2024 को
पूि ान्ह 12.00 तक प्रत्येक दि में सनदेि लय प्रय गर ज को ह डा
एििं ॉफ्ट कॉपी में उपलब्ि कर न ुसनसश्चत करें।
1492 INDIAN LAW REPORTS ALLAHABAD SERIES

उि के असतररि यह भी ुसनसश्चत करें सक
सिसनयसमतीकरण े म्बसन्ित कोई भी प्रकरण िेि नहीं रह गय है।
सिसनयसमतीकरण े म्बसन्ित कोई भी प्रकरण िेि रहने की दि में
 म्पूणा उत्तरद सयत्ि म्बसन्ित मण्डलीय / जनपदीय असिक री क
होग । थ ही यह भी सनदेसित सकय ज त है सक सिसनयसमतीकरण
 े म्बसन्ित ि दों में म न० उच्च न्य य लय / िोच्च न्य य लय
द्व र अन्यथ कोई आदेि प ररत सकय गय हो, तो तत्क ल सिसिक
क याि ही करन ुसनसश्चत करें।
 िंलग्नक-उिित्
भिदीय
ह० अप०
( ुरेन्र कुम र सति री)
अपर सिि सनदेिक (म ध्यसमक)
उत्तर प्रदेि।""

16 Upon reading of the aforesaid
circular letter of the Regional Joint
Direction of Education (Secondary) this is
again very much clear that the Education
authorities are not themselves sure about
the status of such teachers as to the legality
of their appointments and their claim for
regularization, if any, pending or disposed
of. The papers are not with the authorities
so as to form a view whether at any point of
time the claim for regularization was
accorded reconsideration or not. The
manner in which the report has been called
for within three days to complete the
formalities, does appear, as has been
argued by learned Senior Advocate, to be
an eyewash. The teachers have been
working in the institution for the last more
than
two
decades
and
any
sudden
termination of service by an executive fiat
would not only cause adverse civil
consequences but would also be adversely
affecting the academic activities in the
respective
institutions.
Exercising
my
equitable jurisdiction under Article 226 of
the Constitution if I do not arrest the
situation at this stage, in my considered
view, it will lead to a serious miscarriage
of justice.

17.
The
situation
qua
regularization of teachers working in the
Colleges, whether Assistant Teachers or
Lecturers, have gone controversial only on
account of certain matters pending before
the Court or on account of inaction on the
part of concerned education authorities
even after the papers were processed by the
Committee of Management through the
District Inspector of Schools. It is admitted
to the parties that the Regional Selection
Committee headed by the Regional Joint
Director of Education is the only Selection
Committee
for
the
purposes
of
consideration of regularization under the
relevant provisions under Section 33, B, C,
F, G of the Act No. 5 of 1982, as the case
may be.

18
In
the
circumstances,
therefore, it is hereby provided that the
Director
of
Education
(Secondary),
Prayagraj shall be issuing necessary
circular letter to the Regional Director of
Education (Secondary) within three days
asking them to inform District Inspector of
Schools of each districts of the State to
ensure
that
the
papers
regarding
appointments
and
working
of
such
Assistant
Teachers
who
claim
regularization or who were the applicants
for the regularization are processed within
a week's time to be placed before the
Regional Selection Committee however, in
cases
where
the
papers
have
been
processed,
the
Regional
Selection
Committee shall proceed to examine them
and in all such cases including cases where
teachers are working at the strength of
interim order of this Court, if they come
within the zone of regularization in view of
Section quoted herein above, their claims
shall be considered in accordance with law
by the Regional Selection Committee and
final orders shall be passed in each case
and final report regarding the same shall
9 All. Vinod Kumar Srivastava Vs. State of U.P. & Ors.
1493
be submitted within a month to the Director
of Education (Secondary) to be placed
before the Court.

19 The Regional Selection
Committee shall not wait for any case in
which the papers are not processed and
Regional Joint Director of Education
(Secondary), Chairman of the Committee
shall submit the report. If the teachers and
Committee of Management do not come
forward it will remain open for the
Regional Selection Committee to proceed
in accordance with law and submit report
in that regard as well. The pending cases in
matters of teachers working at the strength
of interim order will not deter the selection
committee in forwarding report regarding
regularization.

20. The Director of Education
(Secondary) shall also submit his ultimate
covering
report
annexing
reports
of
Regional Joint Directors of Education,
regarding proposed action to be taken if
there are cases of invalid appointments and
can be said to be covered under the
Government Order dated 09.11.2023. The
report shall be submitted by the Director by
the next date fixed.

21. In the meanwhile until further
orders it is also provided that services of
such ad hoc teachers will not be dispensed
with without leave of the Court. They shall
be continued to perform duties and paid
salary.

22. It is clarified that this order
will operate only in respect of all those
teachers who have been appointed under
the Second Removal of Difficulties Order
framed under the Act No.5 of 1982 Act and
Section 18 of the said Act and Rule 15 of
U.P.
Secondary
Education
Services
Commission Rules 1995 and are seeking
regularization taking aid of Section 33-B,
C, F and G of the Act of 1982.

23.
List
these
cases
on
14.03.2024. "

16.