# Writ-A No. -36228 of 2015 Abhilasha Mishra v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-06
- **Bench:** Arun Tandon, Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/writ-a-no-36228-of-2015-abhilasha-mishra-v-state-of-u-p-ors-43215
- **Pages:** 8

## Headnote

Constitution of India, Art.-226-'Principle
of
Resjudicata'-dismissal
of
PIL
questioning appointment of Chairman
and
member
of
Selection
Boardpetitioner being candidate for selection
of principal in Intermediate Collegeseeking quo warranto-the chairman and
members of Board-being clerk and L.T.
Grade teachers-even not qualified for
post of principal-can not consider the
eligibility and suitability in interviewCourt can not be mute spectator-to allow
the government to break the back bone
of education-held-petition maintainable.
Held: Para-30
We would like to observe that consideration
for entertaining a PIL and grant of interim
orders therein proceed on different footing.
The present writ petition has been filed by a
candidate, who is to face interview, for
issuing a writ of quo warranto, this petition
has no concern with the earlier petitions
filed, as this is for a different relief. We
further find that issues raised in the petition
have important significance for the cause of
education in the State, the writ petition
must,
therefore,
be
entertained.
The
objection of the State, in this regard, stands
rejected.
Case Law discussed:
[2013 (8) SCC 20]

## Text

2 All]
 Abhilasha Mishra Vs. State of U.P. & Ors.
865
appears to have no force and it is liable to
be dismissed.
8. The application is, accordingly,
dismissed.
9. However, it is directed that in
case the applicants appear before the court
concerned within thirty days from today
and apply for bail, the same shall be heard
and disposed of expeditiously, if possible,
on the same day by the courts below in
view of the settled law laid by the Seven
Judges' decision of this Court in the case
of Amrawati and another Vs. State of U.P.
reported in 2005 Cr.L.J. 755 approved by
Hon'ble Apex Court in 2009 (3) ADJ 322
(SC) Lal Kamlendra Pratap Singh Vs.
State of U.P.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Writ-A No. -36228 of 2015
Abhilasha Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri S.K. Singh, Sri D.K. Singh, Sri G.K.
Singh, Sri S.K. Mishra, Sri V.K. Singh
Counsel for the Respondents:
C.S.C., Sri A.K. Yadav
Constitution of India, Art.-226-'Principle
of
Resjudicata'-dismissal
of
PIL
questioning appointment of Chairman
and
member
of
Selection
Boardpetitioner being candidate for selection
of principal in Intermediate Collegeseeking quo warranto-the chairman and
members of Board-being clerk and L.T.
Grade teachers-even not qualified for
post of principal-can not consider the
eligibility and suitability in interviewCourt can not be mute spectator-to allow
the government to break the back bone
of education-held-petition maintainable.
Held: Para-30
We would like to observe that consideration
for entertaining a PIL and grant of interim
orders therein proceed on different footing.
The present writ petition has been filed by a
candidate, who is to face interview, for
issuing a writ of quo warranto, this petition
has no concern with the earlier petitions
filed, as this is for a different relief. We
further find that issues raised in the petition
have important significance for the cause of
education in the State, the writ petition
must,
therefore,
be
entertained.
The
objection of the State, in this regard, stands
rejected.
Case Law discussed:
[2013 (8) SCC 20]
(Delivered by Hon'ble Arun Tandon, J.)
1. Following questions having vital
significance for the cause of education in
the State of Uttar Pradesh, arise for our
consideration in the present writ petition:-
(i) What should be the minimum
qualifications
for
appointment
of
Chairman
and
Members
of
U.P.
Secondary Education Service Commission
Board, even in respect of persons
specified under Section 4 (iv) of the Act,
should it be at par with the qualification
for persons specified under clause (i) (ii)
& (iii) of Section 4 on the principle of
'Ejusdem Generis' ?
(ii) Whether, respondent nos. 4 to 6
who were working as L.T. Grade Teacher
i.e. on a post which is at the lowest ladder
of the faculty posts is a recognised
Intermediate College could be appointed
866
 INDIAN LAW REPORTS ALLAHABAD SERIES
as Chairman and Member of the
Secondary Education Service Selection
Board, for making make selection on the
post of Principal/ Lecturer/ Assistant
Teacher
in
a
recognised
aided
Intermediate institution?
2. While entertaining this petition on
3.7.2015, time was granted to the learned
counsel appearing for State to verify the
credentials of respondent nos. 4 to 6, on
the strength of which they came to be
appointed as officiating Chairman and
Members of the Board.
3. Learned Chief Standing Counsel
alongwith the Advocate General of the
State have appeared and have passed on
the instructions received in the matter
from the Principal Secretary of the State,
which are taken on record. This order is
being passed relying upon the facts so
adduced before us by the State.
4. Petitioner before this Hon'ble
Court is an applicant for the post of
Principal in a recognised and aided
intermediate college. She has approached
this Court for issuing a writ of quo
warranto questioning the appointment and
continuance of respondent Nos. 4, 5 & 6
as officiating Chairman and members of
the U.P. Secondary Education Service
Selection Board, Allahabad, on the
ground that the appointment of these three
persons who were only working as L.T.
Grade Teachers on the relevant date is
perse arbitrary and based on misreading
of the intent of Section 4 of U.P. Act No.
5 of 1982.
5. The qualification prescribed for
appointment of Chairman and Members
of the Board, as contained in Section 4 (1)
to (3) of the U.P. Act No. 5 of 1982 and
reproduced in the writ petition are as
follows:-
" 4. Composition of the Board:- (1)
The Board shall consist of a Chairman
and ten members who shall be appointed
by the State Government.
(2) A person shall not be qualified
for appointment as Chairman unless he,-
(a) is or has been a Vice-Chancellor
of any University established by law; or
(b) is or has been in the opinion of
the State Government an outstanding
officer of the Administrative Service not
below the rank of Secretary to the State
Government or Director of Education,
Uttar Pradesh;
(c) is in the opinion of the State
Government, an eminent person having
made valuable contribution in the field of
education.
3.Of the Members,-
(a) two shall be persons who are
educationists having made significant
contribution in the field of education.
(b) two shall be persons who are or
have been, in the opinion of the State
Government, an outstanding officer of the
State Education Service not below the
rank of Additional Director;
(c ) other shall be persons, who,-
(i) have worked as a Professor in any
University established by law in Uttar
Pradesh or as a Reader of any Degree
College recognised by, or affiliated to,
such University for a period of not less
than ten years; or
(ii) have worked as a Principal of
any institution recognised under the
Intermediate Education Act, 1921 for a
period not less than ten years; or
(iii) are, in the opinion of the State
Government, an eminent educationist
having made valuable contribution in the
field of education.
2 All]
 Abhilasha Mishra Vs. State of U.P. & Ors.
867
(iv) is in the opinion of the State
Government, an eminent person having
made vaulable contribution in the field of
education.
4.
Every appointment under this
Section shall take effect from the date on
which it is notified by the State Government."
6. We may, at the very outset, record
that the Chief Standing Counsel made an
allegation against the petitioner has
deliberately quoted unamended Section
4(3)(c)(iv) of the Act and that the correct
provision reads as under:-
"(iv) is interested in the field of
education and a graduate from a
recognized University."
Submission is that in view of the
language of sub clause (iv), the only
qualification for appointment of Member
is that he has to be a graduate from a
recognised University and has interest in
the field of education.
7.
Sri G.K. Singh, learned Senior
Advocate, assisted by Sri S.K. Mishra,
Advocate informed the Court that Section 4
of the Act has been quoted from an authentic
book of a renowned publisher there may be
some mistake in the book itself, which is
neither deliberate nor intentional. We direct
the learned counsel for the petitioner to make
necessary corrections today itself so as to
bring it in conformity with the amendment
made in the year 2008.
8. We may now turn to the basic
issue, as raised in the present petition.
9. U.P. Act No. 5 of 1982 was
introduced for constituting, a Service
Selection Board, as a substitute for the
mechanism of selection of Principal and
Teachers
in
a
recognised
aided
intermediate colleges in the State of Uttar
Pradesh under the U.P. Intermediate
Education Act.
10.
The U.P. Intermediate Education
Act, 1921 ( hereinafter referred to as Act
1921) contemplated nomination of subject
experts for every selection committee to be
constituted. These subject experts were to be
the persons, who had academic qualification
and experience in the field of education.
Reference may be had to the provisions of
Section 16-F of the Act 1921. Sub section (4)
to Section 16-F of the Act 1921 provided for
the panel to be drawn by the Director in such
manner as may be prescribed. It had to be
revised once in every 3 years. Regulation 14
of Chapter-II of the Regulations framed
under Act, 1921 lays down the category of
persons, who can be included in the panel of
experts to be prepared by the Director.
Regulation 14 is being quoted below:-
"14. The panel of Experts referred to
in sub-section (4) of Section 16-F shall be
drawn by the Director for each region
separately for the selection of heads of
institutions and for the selection of
teachers from amongst the categories of
persons given below after they have been
given their consent in writing to act as
Experts:-
(a) Persons who may be appointed as
experts for the selection of heads of
institution-
(i) Principals of Degree Colleges,
Training Colleges, Agricultural Colleges
and
Polytechnics
including
Central
Schools;
868
 INDIAN LAW REPORTS ALLAHABAD SERIES
(ii)
Gazetted
Officers
of
the
Education Department not below the
P.E.S. level, whether serving or retired;
(iii) Professors and Readers of
Universities and Degree Colleges;
(iv) Lecturers of Universities and
Degree Colleges provided they have
worked as such for at least ten years.
(v) Any other person considered
suitable by the Director;
(b) persons who may be appointed as
experts for the selection of teachers-
(i) Principal or Headmaster of any
Intermediate College, High Schools or
Government Normal School, whether
serving or retired;
(ii) Gazetted Officer of the Education
Department not below the rank of a
Deputy Inspector of Schools, whether
serving or retired;
(iii) Lecturers of Degree Colleges,
Training Colleges or Polytechnics and
Gazetted
Officers
of
Education
Department of at least five years'
standing;
(iv) Any other person considered
suitable by the Director.
The number of experts on each regional
panel shall be such as may be considered
necessary by the Director, provided that
experts appointed for the selection of
teachers of Intermediate classes shall be
experts in that subject (i.e they should
possess
the
minimum
qualifications
prescribed by the Board for a teacher of
Intermediate
classes
in
the
subject
concerned). The regional panel shall remain
valid for three years but the Directors may
add to or remove any person from the panel
even during the above period. Name of one
person may be included in more than one
panel where necessary."
11. It will be seen from a simple
reading of the aforesaid provisions that
the Act,1921 contemplated that persons not
below the rank of Principal of Degree
college, training college, agriculture college
and gazetted officer of the education
department not below the rank of additional
director, professor of any university or a
Reader, Lecturer (with 10 years experience)
of any degree college recognised by or
affiliated to such University, or any other
person having made valuable contribution in
the field of education and considered suitable
by the Director could be included in the
panel for the post of Principal/ Head of the
institution.
12. In the case of teachers such
persons could be empanelled who had to
be a principal of an
Intermediate
institution, Gazetted Officer or Lecturer
of Degree College. Clause-4 authorised
the Director to induct any other person as
considered suitable by him.
13. Section 4 of the U.P. Act No. 5
of
1982,
which
lays
down
the
qualification for the Chairman and
Members of the Selection Commission,
has been quoted above. The qualification
for appointment as Chairman under Sub
Section (2) of Section 4 are that he (i) is
or has been a Vice-Chancellor of any
University established by law; (ii) an
outstanding officer of administrative
service not below the rank of Secretary to
the State or Director of Education U.P.;
(iii) an eminent person having made
valuable contribution in the field of
education.
14. Similarly, for the office of
Member, qualifications prescribed ; (a)
educationists having made significant
contribution in the field of education; (b)
an outstanding officer of the State
Education Service not below the rank of
2 All]
 Abhilasha Mishra Vs. State of U.P. & Ors.
869
Additional Director; (c) Professor of a
University established by law or a Reader
of a degree college recognised by or
affiliated to a University for not less than
ten years; Principal of any Intermediate
institution recognised under the Act of
1921 for not less than ten years; (d) an
eminent
educationists
having
made
valuable contribution in the field of
education, and lastly (e) a graduate having
interest in education, as provided in
Clause-iv.
15. This clause according to State
constitutes a separate class in itself and
the other clauses providing qualification
would have no bearing.
16. We are, prima-facie, not inclined
to accept this argument, as it would run
counter to the scheme of the Act itself.
17. Provisions contained in Subsections (2) and (3) of Section 4 provide
for the qualifications required to be
possessed by a person before being
appointed as Chairman and Member of
the Board. We are of the view that
principles of 'Ejusdem Generis' would
clearly be attracted in the instant situation
and Sub-clause (iv) would have to be read
as being of the same kind or nature, and
for same class or category which apply to
the previous clauses. The Apex Court in
Nirma Industries Vs. SEBI [2013 (8)SCC
20] in Paras 63 to 66 has held as follows:-
"63. The term "ejusdem generis" has
been defined in Black's Law Dictionary,
9th Edn. as follows :
"A canon of construction holding
that when a general word or phrase
follows a list of specifics, the general
word or phrase will be interpreted to
include only items of the same class as
those listed."
64. The meaning of the expression
ejusdem generis was considered by this
Court on a number of occasions and has
been
reiterated
in
Maharashtra
University of Health Sciences and Ors.
Vs. Satchikitsa Prasarak Mandal & Ors.
[9] The principle is defined thus : "The
Latin expression "ejusdem generis" which
means "of the same kind or nature" is a
principle
of
construction,
meaning
thereby when general words in a statutory
text are flanked by restricted words, the
meaning of the general words are taken to
be restricted by implication with the
meaning of the restricted words. This is a
principle which arises "from the linguistic
implication by which words having
literally a wide meaning (when taken in
isolation) are treated as reduced in scope
by the verbal context". It may be regarded
as an instance of ellipsis, or reliance on
implication. This principle is presumed to
apply unless there is some contrary
indication [see Glanville Williams, The
Origins and Logical Implications of the
Ejusdem Generis Rule, 7 Conv (NS)
119]."
65. Earlier also a Constitution Bench
of this Court in Kavalappara Kottarathil
Kochuni
vs.
State
of
Madras[10]
construed the principle of ejusdem
generis wherein it was observed as
follows : " ........ The rule is that when
general words follow particular and
specific words of the same nature, the
general words must be confined to the
things of the same kind as those specified.
But it is clearly laid down by decided
cases that the specific words must form a
distinct genus or category. It is not an
inviolable rule of law, but is only
permissible inference in the absence of an
indication to the contrary."
870
 INDIAN LAW REPORTS ALLAHABAD SERIES
66. Again this Court in another
Constitution Bench decision in the case of
Amar Chandra Chakraborty Vs. Collector
of Excise[11] observed as follows :
". ... The ejusdem generis rule strives to
reconcile
the
incompatibility
between
specific and general words. This doctrine
applies when (i) the statute contains an
enumeration of specific words; (ii) the
subjects of the enumeration constitute a class
or category; (iii) that class or category is not
exhausted by the enumeration; (iv) the
general term follows the enumeration; and
(v) there is no indication of a different
legislative intent."
18. We are, prima-facie, of the
opinion that the requirement of eminence
in the field of education as provided in
sub clauses (i), (ii) and (iii) would have to
be read in clause (iv) of Section 4 (3) (c)
of the Act also. Only a person having
eminence in the field of education, as
illustrated by various sub sections of
Section 4 could be appointed as Chairman
and Member of the Board. The contrary
interpretation suggested by the Chief
Standing Counsel would be detrimental to
the system of education in the State.
19. In our opinion the phrases "made
valuable contribution in the field of
education" and "interested in filed of
education" must mean some contribution
in the field of education which is tangible
and which can be evaluated by experts in
the filed of education to see as to whether
that
particular
man
satisfied
the
requirement of the said phrases or not. It
cannot be based on complete subjective
satisfaction. Some objective material for
the purpose has to be seen.
20. The qualifications for the office
of member has been whittled down by the
State
Government
under
the
2008
amendment as a result whereof we are
faced with a situation in which respondent
nos.4 to 6 are functioning as the
officiating Chairman and Members of the
Board.
21. It is relevant to note that the
respondent no.4, Smt. Anita Yadav, who
was only a LT grade teacher in K.K. Inter
college, is now acting as Chairman of the
Selection Board for selecting Principals of
recognised inter colleges i.e. a post, for
which she herself is prima-facie not
eligible to even apply. She is stated to be
double M.A. She is untrained nor she has
passed TET examination.
22.
The other members of the
Commission i.e. Smt. Ashalata Singh was
initially appointed as subject expert and
thereafter Lecturer in Intermediate College,
for which selection was made by the
committee of Management of a private
college. Meaning thereby that she has not
faced any selection conducted by the Service
Selection Board or by the Public Service
Commission. She is stated to have been
regularised as Lecturer in the year 2007 and
she has now been appointed as Member for
holding selection for the Post of Principal of a
recognised Intermediate College, a post she
has never held nor is qualified to hold.
23. So far as respondent no. 6, Lalit
Kumar Srivastava, is concerned, he
worked as Clerk in the office of District
Inspector of School upto the year 2003,
where after he is stated to be appointed as
L.T.
Grade
Teacher,
before
being
appointed as Member of the Board in the
year 2013. Even he is to select Principals
and Lecturers, although he himself is not
qualified for the posts. His period of
appointment has been extended again on
2 All]
 Abhilasha Mishra Vs. State of U.P. & Ors.
871
12.6.2015 for further two years. Sri Lalit
Kumar Srivastava who is stated to be post
graduate, is not even trained, and thus,
prima-facie, ineligible to be appointed
even as L.T. Grade Teacher.
24. None of these three ( Chairman
and two members), as on date, primafacie can be selected for the post of
Principal in a recognised Intermediate
college for want of qualification, but the
irony is that they have been authorised to
select
Principals
and
Lecturers
for
recognised Intermediate Colleges.
25. The Court, in the facts of the present
case, is constrained to inquire as to whether
considerations other than the interest of
education pervial in the mind of the concerned
officials of the department of education in the
State, while appointing Respondent Nos. 4 to 6.
Response is required from the Principal
Secretary / Chief Secretary of the State. We
regret to observe that the entire education in
State is being ruined because of incompetent
persons being appointed to hold selection for
the post of Principals/ Lecturers and L.T. Grade
Teachers of the recognised intermediate
college. The Court will not be a mute spectator.
The State cannot be permitted to break the
backbone of education system on which our
democratic polity professes to thrive. We are
compelled to interfere not only in law but for
wider cause of education in the State itself.
26.
Has the State of U.P. become so
bankrupt
in
the
matter
of
academias/administrative officers that it has to
appoint persons as Chairman/ Members of the
Selection Board who have made absolutely no
contribution in the field of education, is the
other question which was to be answered.
27. Learned Chief Standing Counsel
submitted that this petition may not be
entertained, as a previous PIL Petition
No.11684 of 2014 had been dismissed on
26.11.2014, vide following orders:-
"This petition lacks bona fide. It
appears that it is a proxy petition at the
instance of ex-secretary of Education
Board as on her papers enquiry has been
asked for.
In view of the above, PIL is
dismissed."
28. Another PIL Petition No.12548
of 2014 was filed and following orders
were passed on 18.12.2014:-
"Shri Ankit Srivastava, Advocate,
appearing for respondent nos.2 and 3,
prays for and is allowed three weeks' time
to seek instructions in the matter,
particularly in respect of proceedings, if
any drawn, against the respondent nos.4
and 5 by the State Government. Learned
Standing Counsel, representing State
respondents, may also seek instructions
within same period.
List in the 3rd week of January,
2015.
Prayer for interim relief is rejected."
29. An SLP was preferred against
the order dated 18.12.2014, which was
rejected on 22.1.2015. It is submitted by
the Chief Standing Counsel that in view
of the aforesaid orders, present petition be
not entertained.
30. We would like to observe that
consideration for entertaining a PIL and
grant of interim orders therein proceed on
different footing. The present writ petition
has been filed by a candidate, who is to
face interview, for issuing a writ of quo
warranto, this petition has no concern
with the earlier petitions filed, as this is
872
 INDIAN LAW REPORTS ALLAHABAD SERIES
for a different relief. We further find that
issues
raised
in the petition
have
important significance for the cause of
education in the State, the writ petition
must, therefore, be entertained. The
objection of the State, in this regard,
stands rejected.
31. We may also record that a response
to the facts as stated in the writ petition and
the prima-facie findings which have been
recorded by this Court, shall be made by
means of a personal affidavit by the Chief
Secretary of the State of U.P.. The original
records on the basis of which these three
persons were appointed as Chairman and
Members of the Selection Board, shall be
produced before this Court by an officer, not
below the rank of Joint Secretary on the next
date.
32. Learned Chief Standing Counsel
prays for and is allowed 3 weeks' time to
file Counter Affidavit. Issue notice to
respondent nos.4 to 6, who may also file
counter affidavit within the same period.
Steps be taken within five days. Petitioner
will have one week thereafter to file
Rejoinder Affidavit.
List this petition on 10.8.2015.
In the meantime, respondent Nos.4, 5
& 6 are restrained from holding any
selection in their capacity as Chairman
and Members of the Board. However,
their salary is not being interfered with, at
this Stage.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SURYA PRAKASH KESARWANI, J.
WRIT-C No. 38663 of 2008
Rameshwar & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Vishnu Sahai, Sri B. Dayal, Sri
Mahendra Bahadur Singh, Sri C.K. Parekh
Counsel for the Respondents:
C.S.C., Sri Pradeep Kumar, Sri R.P. Singh
U.P. Land Acquisition Act-Section 18-Referencemaintainability-on allegation of fraud-even-if
compensation received-reference can not be
rejected-order quashed-with consequential
direction given.
Held: Para-9
We are of the considered opinion that in
cases where execution of agreement
under the Rules, 1997 is questioned on
allegations of fraud, the application for
reference
need
be
entertained
and
referred to the Court concerned for
examined at the first instance as to
whether the agreement is vitiated by
fraud or not. It is only when the first
issue is answered in affirmative that the
other questions namely adequacy of
compensation to the petitioners can be
gone into.
(Delivered by Hon'ble Arun Tandon, J.)
1. Land holdings of the petitioners
before this Court was admittedly acquired
under the provisions of the Land
Acquisition Act, 1894 (herein after
referred to as the 'Act, 1894') on
31.10.2001 issued under Section 4 of the
Act, 1894 followed by notification dated
31.01.2002 under Section 6 of the Act,
1894. Possession of the acquired land was
taken on 23.03.2002.
2. From the records of the present
petition it is apparent that before the