# Virendra Pal SIngh v. Joint Director of Education Kanpur Region and others

- **Citation:** (2010) 3 ILRA 980
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-25
- **Case number:** Civil Misc. Writ Petition No. 13862 of 2004
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-pal-singh-v-joint-director-of-education-kanpur-region-and-others-41764
- **Pages:** 4

## Headnote

Rules 1998,Rule 14-Promotion to the post
of Lecturer (History)-vacancy arose on
retirement of permanent incumbent on
30/06/1998-Management
promoted
X
illegally, defying claims of petitioner and
respondents No.5-Again X retired, and
vacancy arose on 01/07/1999-Respondent
No.5 become eligible for that post on
08/07/1998-Held,since
vacancy
arose
initialy on 30/06/1998, and the post
having not been legally filled up will
continue-therefore
relevant
date
for
qualification would be 01/07/1998-thus
petitioner found liable to be promotedpetition allowed.

Held: Para 13

Having heard learned counsel for the
parties, the Rules require the possession of
the requisite qualification as on the first
day of the year of recruitment. The
relevant Rule is Rule 14 of the U.P.
Secondary Education Service Selection
Board Rules, 1998. There is no dispute that
the vacancy occurred on 30.6.1998 and,
therefore, the qualification had to be seen
on
1.7.1998.
The
Committee
of
Management did proceed to make a
promotion but it promoted Shishu Pal
Singh and did not consider the claim either
of the petitioner or of the Respondent
No.5. The Respondent No.5 subsequently
staked his claim on the ground that he has
acquired qualification on 8.7.1998. It
appears that after Shishu Pal Singh retired,
the Respondent No.5 was supported by
the Committee of Management. In the
opinion of the Court, this could not have
been done inasmuch as the vacancy which
occurred on 30.6.1998 cannot be said to
have been occupied lawfully by Shishu Pal
Singh in the absence of any approval by
the competent authority. It is the same
vacancy which continued and, therefore,
the date on which the qualification had to
be considered according to Rule 14
aforesaid was 1.7.1998. The Joint Director
of Education committed a manifest error
by shifting the said date of consideration
on the ground of the alleged action of the
Committee of Management by promoting
Shishu
Pal
Singh
which
was
never
approved by the competent authority. In
such a situation, the impugned order is
unsustainable.

## Text

980 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
before respondent no. 2. We further provide
that as the respondents without there being
any cogent reason have delayed the
payment, therefore the petitioner is also
entitled 8% interest. It is further provided
that in case the remaining amount is not
released within a period of two months, the
petitioner shall be entitled 10% interest till
the date of entire payment, which has to be
paid by the respondents.

With the aforesaid directions, the writ
petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2010

BEFORE
THE HON'BLE A.P. SAHI, J

Civil Misc. Writ Petition No. 13862 of 2004

Virendra Pal Singh

 ...Petitioner
Versus
Joint
Director
of
Education
Kanpur
Region and others
 ...Respondents

Counsel for the Petitioner:
Sri R.G.Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri Shashi Kant Shukla
Sri Ambrish Kumar
S.C.

Service-U.P. Secondary Education Service
Rules 1998,Rule 14-Promotion to the post
of Lecturer (History)-vacancy arose on
retirement of permanent incumbent on
30/06/1998-Management
promoted
X
illegally, defying claims of petitioner and
respondents No.5-Again X retired, and
vacancy arose on 01/07/1999-Respondent
No.5 become eligible for that post on
08/07/1998-Held,since
vacancy
arose
initialy on 30/06/1998, and the post
having not been legally filled up will
continue-therefore
relevant
date
for
qualification would be 01/07/1998-thus
petitioner found liable to be promotedpetition allowed.

Held: Para 13

Having heard learned counsel for the
parties, the Rules require the possession of
the requisite qualification as on the first
day of the year of recruitment. The
relevant Rule is Rule 14 of the U.P.
Secondary Education Service Selection
Board Rules, 1998. There is no dispute that
the vacancy occurred on 30.6.1998 and,
therefore, the qualification had to be seen
on
1.7.1998.
The
Committee
of
Management did proceed to make a
promotion but it promoted Shishu Pal
Singh and did not consider the claim either
of the petitioner or of the Respondent
No.5. The Respondent No.5 subsequently
staked his claim on the ground that he has
acquired qualification on 8.7.1998. It
appears that after Shishu Pal Singh retired,
the Respondent No.5 was supported by
the Committee of Management. In the
opinion of the Court, this could not have
been done inasmuch as the vacancy which
occurred on 30.6.1998 cannot be said to
have been occupied lawfully by Shishu Pal
Singh in the absence of any approval by
the competent authority. It is the same
vacancy which continued and, therefore,
the date on which the qualification had to
be considered according to Rule 14
aforesaid was 1.7.1998. The Joint Director
of Education committed a manifest error
by shifting the said date of consideration
on the ground of the alleged action of the
Committee of Management by promoting
Shishu
Pal
Singh
which
was
never
approved by the competent authority. In
such a situation, the impugned order is
unsustainable.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Prakash Padia, learned
counsel for the petitioner, learned Standing
Counsel for Respondent Nos. 1, 2, 6 & 7
3 All] Virendra Pal SIngh V. Joint Director of Education Kanpur Region and others
981
and Sri Shashi Kant Shukla for Respondent
No.5.

2. Counter-Affidavits have been filed
on behalf of Respondent Nos. 3 and 4 as
well.

3. The dispute relates to the claim of
promotion of the petitioner on the post of
Lecturer (History) in Dayanand Inter
College, Amritpur, district - Farrukhabad,
which is an institution governed by the
provisions of U.P. Intermediate Education
Act, 1921 and the U.P. Secondary
Education Service Selection Board Act and
the regulations framed thereunder.

4. The vacancy on the post of Lecturer
in History came into existence on the
retirement of the permanent incumbent on
30.6.1998.
The
respondent
No.5
is
admittedly senior to the petitioner and one
Shishu Pal Singh was also senior to the
petitioner and the Respondent No.5. The
Respondent No.5 succeeded in completing
his Post Graduation in the subject of History
with the declaration of his result on
8.7.1998. The Respondent No.5 was,
therefore, admittedly not qualified on the
first day of the year of recruitment upon the
vacancy
coming
into existence.
The
relevant date, which is admitted between the
parties, would be 1.7.1998.

5. The Management appears to have
promoted
Shishu
Pal
Singh
whose
promotion was never approved and he also
retired.

6. The Respondent No.5 claimed that
he became qualified as on 1.7.1999 and
since Shishu Pal Singh had retired,
therefore, he ought to have been promoted.

7. The Respondent No.5 had staked
his claim before the District Inspector of
Schools which was not being considered as
a result whereof he filed Writ Petition
No.43080 of 1999 which was disposed of
on 6.10.1999 to consider his claim. The
matter was taken up by the District
Inspector of Schools who vide order dated
19.8.2000 came to the conclusion that the
Respondent No.5 was not qualified as on
the first date of the year of recruitment and
hence his claim was, accordingly, rejected.
The order, therefore, practically went in
favour of the petitioner and which was
never challenged in any court of law.

8. The said order of the District
Inspector of Schools was not being
implemented
by
the
Committee
of
Management as a result whereof the
petitioner approached this Court by filing
Writ Petition No.28605 of 2001 in which
orders
were
issued
on
6.8.2001
commanding the Management to take a
decision with regard to the claim of the
petitioner. The Manager, on his own, passed
an order on 1.10.2001 rejecting the claim of
the petitioner. It is in these circumstances
that the dispute came to be taken up further
before the Joint Director of Education. The
petitioner filed another Writ Petition
No.21997 of 2002 which was disposed of
with a direction to decide the claim of the
petitioner. Accordingly, the Joint Director
of Education, being the Chairman of the
Regional Level Committee, proceeded to
pass the order dated 28.2.2004 and rejected
the claim of the petitioner and reversed the
order of the District Inspector of Schools
passed earlier accepting the claim of the
Respondent No.5. The Joint Director of
Education recorded a finding that the date
of occurrence of vacancy stands shifted to
1.7.1999 on account of the circumstances
indicated therein namely that the claim of
982 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Shishu Pal Singh had not been recognized
and then held that the Respondent No.5 was
qualified on the said date and, therefore,
deserves to be promoted.

9. It is this order, which is under
challenge together with the communication
dated 8.3.2004.

10. Sri Prakash Padia, learned counsel
for the petitioner, submits that the impugned
order proceeds on an erroneous construction
of the relevant rules inasmuch as once the
claim of Shishu Pal Singh had not been
accepted then the same vacancy which
occurred on 30.6.1998 will continue. He
submits that accordingly the date of
occurrence of vacancy and the first day of
the year of recruitment would not alter and
the qualification has to be seen on 1.7.1998
and not on any date subsequent thereto.

11. On the strength of the aforesaid
submissions, it is urged that the order
deserves to be set aside and the Regional
Level Committee be directed to re-consider
the claim of the petitioner in the light of the
relevant rules.

12. Sri Shashi Kant Shukla, on the
other hand, for the Respondent No.5
contends that having passed the M.A.
examination on 8.7.1998, the Respondent
No.5 being senior to the petitioner was
entitled to be considered more so when the
claim of Shishu Pal Singh had not been
accepted. It is submitted that in such
circumstances, the priority has been rightly
fixed by the Regional Level Committee in
favour of the Respondent No.5 treating the
date of occurrence of vacancy as 1.7.1999.
Learned
Standing
Counsel
has
also
supported the impugned order and has
urged that it does not require any
interference.

13. Having heard learned counsel
for the parties, the Rules require the
possession of the requisite qualification as
on the first day of the year of recruitment.
The relevant Rule is Rule 14 of the U.P.
Secondary Education Service Selection
Board Rules, 1998. There is no dispute
that the vacancy occurred on 30.6.1998
and, therefore, the qualification had to be
seen on 1.7.1998. The Committee of
Management did proceed to make a
promotion but it promoted Shishu Pal
Singh and did not consider the claim
either of the petitioner or of the
Respondent No.5. The Respondent No.5
subsequently staked his claim on the
ground that he has acquired qualification
on 8.7.1998. It appears that after Shishu
Pal Singh retired, the Respondent No.5
was supported by the Committee of
Management. In the opinion of the Court,
this could not have been done inasmuch
as the vacancy which occurred on
30.6.1998 cannot be said to have been
occupied lawfully by Shishu Pal Singh in
the absence of any approval by the
competent authority. It is the same
vacancy which continued and, therefore,
the date on which the qualification had to
be considered according to Rule 14
aforesaid
was
1.7.1998.
The
Joint
Director of Education committed a
manifest error by shifting the said date of
consideration on the ground of the alleged
action of the Committee of Management
by promoting Shishu Pal Singh which was
never
approved
by
the
competent
authority. In such a situation, the
impugned order is unsustainable.

14. So far as the claim of the
petitioner is concerned, the District
Inspector of Schools had passed an order
on 19.8.2000. The said order has not been
3 All] Chandra Mohan Sama V. Banwari Lal Ghai and another
983
appreciated in correct perspective by the
Joint
Director
of
Education
while
proceeding to pass the impugned order.

15. Accordingly, the writ petition is
allowed and the orders dated 28.2.2004
and 8.3.2004 are set aside. The matter is
remitted back to the Regional Level
Committee to pass fresh orders after
hearing both the parties in the light of the
observations made herein above within 3
months from the date of production of a
certified copy of this order before the
concerned authority.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2010

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 26826 of 2009

Chandra Mohan Sama
 ...Petitioner
Versus
Banwari Lal Ghai and another

 ...Respondents

Counsel for the Petitioner:
Mr. Amitabh Agarwal
Mr. Pramod Kumar Jain

Counsel for the Respondents:
Mr. V.P. Misra
Mr. J. Nagar

Constitution of India Art.226-Declaration
of vacancy-Challanged by tenant on
ground of limitation claiming to be in
unauthorised possession since 1975-if
any mafiya forcibly accupy the building
and due to his fere land lord fails to
approach-be allowed justified its illegal
possession-even in absence of provision
of time limit-held-limitation not to be
read where not specifically provided.

Held: Para 23 & 24

If limitation of 12 years as reasonable
period is read in the provision of the U.P.
Urban Building (Regulation of Letting,
Rent and Eviction) Act, 1972, though
there is a definite lack of legislative
intent in the Act in this regard, it would
amount to permitting illegal occupants
to grant legal sanction to their acts.
Occupation of building without allotment
would frustrate the regulatory provisions
of the Act and not germane to the object
for which the Act was legislated.

It may in circumstances be also misused
or misutilised e.g. if an influential
powerful person or mafia occupies a
building or portion thereof by force of
muscle power/State power then the
landlord would never be able to move
any application for release for fear of
him and his family. There can be other
such
examples
also,
hence
in
my
considered opinion, limitation should not
be read where it is not specifically
provided for.
Case law discussed:
(2005(1)
ARC-144),(1994
A.L.J.-999(F.B.),
2005(2)
A.R.C.-665,
(2006(63)
ALR-677),
(2006(62) ALR 383), (2009(10) A.D.J.-607),
(1984(1) ARC 17),(AIR 1964 SC-752).

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

2. The petitioner claims himself to
be tenant of house, F-48 Shanti Nagar,
Kanpur Nagar since 1975 without there
being any allotment order. It appears that
respondent no, 2 moved an application for
declaration of vacancy and for allotment
on the ground that petitioner is an
unauthorised occupant. Objections were
filed by the petitioner and he also filed
certain rent receipts.