High Court · 2025

Petitioner :- Narain Das And Another Respondent :- D.I.O.S. And Others Counsel for Petitioner :- M.M.L. Srivastava,Lallan Pd.Pal,Manoj Srivastava,Siddharth Khare Counsel for Respondent :- C.S.C.,Kamlesh Kumar Yadav Hon'ble Donadi Ramesh,J.

1. The present writ petition is filed questioning the impugned order dated 01.07.2000 rejecting the claim of the petitioners for approval of their appointments and consequently a mandamus be issued to respondent no.1 to accord approval of the appointment of L.T. Grade teacher and pay salaries to the petitioners from month to month and also release of salary from the date of order dated 07.09.1999. Pursuant to the advertisement dated 14.07.1999, two L.T. Grade Teachers are appointed in third-respondent Institution. The petitioners have submitted their application and after subjecting to selection process the petitioners were appointed against two vacant L.T. Grade posts on temporary basis for short term and subsequently petitioners were permitted to join the duties accordingly, and they have submitted the joining report on 30.07.1999, from the said date they are discharging their functions continuously.

2. After appointment the third-respondent has forwarded proposals to the second- respondent for approval of the appointment of the petitioners, but surprisingly, the respondent No.2 vide impugned order dated 01.07.2000 has rejected/ refused to approve the appointments of the petitioners only on the ground that there is a ban imposed by the State for appointment of Teachers in the Institution.

3. Assailing the said orders, the petitioners approached this Court in the present writ petition. Considering the submissions and perusal of record this Court has passed the following order:- "Admit. Notice on behalf of opposite parties No.1 and 2 has been accepted by the Chief Standing Counsel, who prays for and is granted six weeks time to file counter affidavit. Issue notice to opposite party No.3. The petitioners have alleged in the petition that they have been appointed by the appointment letter dated 29.07.1999 after due process of law. Sri R.C. Srivastava, senior Advocate appearing on behalf of petitioners, assisted by Sri M.M.L. Srivastava submits that the appointment of the petitioners was made in the interest of the students which is permanent appointment under the education Act. He further submits that till date no regular selected candidate has joined on the post and the petitioners are teaching in the college. In view of the aforesaid facts, the operation of the order dated 01.07.2000, a copy of which has been filed as Annexure-7 to the writ petition is hereby stayed and the respondents are directed to pay salary to the petitioners till a regular selected candidate joins on the post."

4. Based on the above directions the petitioners continued in the said posts and the first petitioner has retired after attaining the age of superannuation on 30.01.2023 and the second petitioner is still continuing in service. In view of the said interim directions, the respondents treating the petitioners appointment in a regular posts have also deducted the GPF and other contributory deductions. Hence, they are entitled for all retiremental benefits.

5. Based on the above orders, learned counsel for the petitioner has mainly contended that as the respondents have rejected the claim of the petitioners only on the ground that there was a ban imposed by the State. Hence, the appointments which are made are contrary to the said ban. But the said issue was already decided by this Court in Dharmesh Kumar Sharma Vs. Director of Education (Secondary), U.P., Allahabad and Others reported in 2013 (4) ADJ 3. In this judgment it has been held as below:- "12. I have considered the rival submissions of the respective parties. It is not disputed that a short term vacancy occurred in the institution for Assistant Teacher in L.T. Grade on account of ad hoc promotion of Sri Bangali Mal as a lecturer in Maths. The committee of management appointed the petitioner against the aforesaid short term vacancy. Copy of the advertisement has been placed on the record. The petitioner has also placed on record the approval order of the District Inspector of School dated 17.6.1995 as Annexure- 7 to the writ petition. The District Inspector of Schools revoked the said approval only on the ground that the Director of Education issued a circular dated 09.6.1995 wherein a ban has been imposed in respect of recruitment of those teachers who are governed by the U.P. Secondary Education (Service Selection Board) Act, 1982.

13. The State Government had earlier issued various Government Orders putting ban on the recruitment in the Government department. The first Government Order was issued on 29.6.1991 vide a TELEX message, which was followed by the Government Order dated 17.7.1991. In both, the TELEX as well as in the Government Order, there was prohibition against the appointment in the Government Departments and there was no reference with regard to the appointment made in the private aided schools. By means of Government Order dated 30.7.1991 a communication was issued by the State Government which was addressed to the Chairman of the U.P. Secondary Education Service Commission placing restrictions against the recruitment which were governed by the provisions of the U.P. Secondary Education (Service Selection Board) Act, 1982. The said order was followed by another Circular dated 31st August, 1991 that no ad hoc appointment be made against any educational institution. However, on 26th September, 1991, the ban imposed by the Government Order dated 30 August, 1991 was withdrawn. This Court had occasion to consider those Government Orders in Writ Petition No.35071 of 1991 (St. Neelam Agarwal V. State of U.P. and others) and Writ Petition NIL of 1992 (Mahendra Pratap Singh V. District Inspector of Schools, Mau and others).

14. The circular dated 09.6.1995 on the basis of which the impugned order has been passed was considered by this Court in Writ Petition No.32742 of 1995 (Vinod Kumar and another v. District Inspector of Schools and another). This Court took the view that the said Circular does not put any ban on short term vacancy as these vacancies were to be filled in accordance with the Removal of Difficulties Order and not by Board. The relevant paragraph of the said reads as Under: "Submission advanced is that the impugned order is bad in law inasmuch as the appointments of the petitioners were against the short term vacancies created on account of ad hoc promotion of Shri Mahesh Chandra Palival and Shri Kailash Chandra Gupta L.T. Grade teachers to the posts of Lecturers in History and Civics. Further, the submission is that short term vacancies are to be filled up in accordance with the Removal of Difficulties Order and not by the Board. In support of the submission reliance has been placed upon the judgment of this Court in the case of Mukesh Kumar v. State of U.P. and others, 1996 AWC 556, wherein learned Single Judge of this Court relying upon the decision of Full Bench in the case of Radha Raizada v. Committee of Management, 1995 (3) UPLBEC 1551, has held that the circular dated 9.6.1995, referred to above, cannot come in the way of making selection and appointment against the short term vacancy."

6. In view of the above observations made by this Court, as the said ban is not for the short terms vacancies. In fact the petitioners were appointed on the resulted vacancy, only on short term. Hence, the ban order is not applicable as held by this Court in above said judgment. Accordingly, learned counsel for the petitioners requested to set aside the same and also direct the respondents to approve the appointments of the petitioners which were made by the third-respondent on short term vacancy.

7. In reply to the said contentions, learned Standing Counsel appearing on behalf of respondent has mainly relied on the averments made in paragraph Nos.3, 7 and 19 of the counter affidavit. Based on the above averments, learned Standing Counsel has submitted that there was no short term vacancy existing at the time when the petitioners were appointed and the appointment was made contrary to law. Hence the appointment which were made by the third respondent are contrary to the ban imposed by the State. Further, he has also stated that the impugned order dated 01.07.2000 is not issued by the District Inspector of Schools. Hence the petitioners are not entitled to continue as their appointments are not in accordance with law. In view of the said submissions, requested to dismiss the writ petition.

8. Considering the submissions made by learned counsel for the parties and also on perusal of the record, that the petitioners were appointed on a short term vacancy, therefore, ban order would not be applicable to the filling up of the short term vacancy as held by this Court in Dharmesh Kumar Sharma Vs. Director of Education (Secondary), U.P., Allahabad and Others reported in 2013 (4) ADJ 3. Further, as per the stand taken by the petitioner and also as per the averments made in paragraph 14, respondents ought to have passed order approving the appointment of the petitioner when the proposal was sent by the third-respondent. As contended by the learned counsel for the petitioner, this Court has passed an order on 5th December, 2000 for releasing the salary of the petitioner which itself may be taken into consideration that this Court has approved the appointments of the petitioners.

9. In view of the said circumstances, as the petitioners have worked more than two decades and their salaries were regularly paid in view of the interim orders, therefore, it is needless to go into legality or regularity of the appointment of the petitioners which was made by the third-respondent.

9. In view of the said circumstances, as the impugned order dated 01.07.2000 is contrary to the principles of law as laid down in the above referred case and accordingly the same is set aside.

10. Accordingly, the present writ petition is disposed of, directing the respondents to release all pensionary benefits to the first petitioner, regularizing the services of both the petitioners. Order Date :- 7.5.2025 AdityaG (Donadi Ramesh,J.) ADITYA GAUTAM ADITYA GAUTAM High Court of Judicature at Allahabad High Court of Judicature at Allahabad

Petitioner :- Narain Das And Another Respondent :- D.I.O.S. And Others Counsel for Petitioner :- M.M.L. Srivastava,Lallan Pd.Pal,Manoj Srivastava,Siddharth Khare Counsel for Respondent :- C.S.C.,Kamlesh Kumar Yadav Hon'ble Donadi Ramesh,J.

1. The present writ petition is filed questioning the impugned order dated 01.07.2000 rejecting the claim of the petitioners for approval of their appointments and consequently a mandamus be issued to respondent no.1 to accord approval of the appointment of L.T. Grade teacher and pay salaries to the petitioners from month to month and also release of salary from the date of order dated 07.09.1999. Pursuant to the advertisement dated 14.07.1999, two L.T. Grade Teachers are appointed in third-respondent Institution. The petitioners have submitted their application and after subjecting to selection process the petitioners were appointed against two vacant L.T. Grade posts on temporary basis for short term and subsequently petitioners were permitted to join the duties accordingly, and they have submitted the joining report on 30.07.1999, from the said date they are discharging their functions continuously.

2. After appointment the third-respondent has forwarded proposals to the second- respondent for approval of the appointment of the petitioners, but surprisingly, the respondent No.2 vide impugned order dated 01.07.2000 has rejected/ refused to approve the appointments of the petitioners only on the ground that there is a ban imposed by the State for appointment of Teachers in the Institution.

3. Assailing the said orders, the petitioners approached this Court in the present writ petition. Considering the submissions and perusal of record this Court has passed the following order:- "Admit. Notice on behalf of opposite parties No.1 and 2 has been accepted by the Chief Standing Counsel, who prays for and is granted six weeks time to file counter affidavit. Issue notice to opposite party No.3. The petitioners have alleged in the petition that they have been appointed by the appointment letter dated 29.07.1999 after due process of law. Sri R.C. Srivastava, senior Advocate appearing on behalf of petitioners, assisted by Sri M.M.L. Srivastava submits that the appointment of the petitioners was made in the interest of the students which is permanent appointment under the education Act. He further submits that till date no regular selected candidate has joined on the post and the petitioners are teaching in the college. In view of the aforesaid facts, the operation of the order dated 01.07.2000, a copy of which has been filed as Annexure-7 to the writ petition is hereby stayed and the respondents are directed to pay salary to the petitioners till a regular selected candidate joins on the post."

4. Based on the above directions the petitioners continued in the said posts and the first petitioner has retired after attaining the age of superannuation on 30.01.2023 and the second petitioner is still continuing in service. In view of the said interim directions, the respondents treating the petitioners appointment in a regular posts have also deducted the GPF and other contributory deductions. Hence, they are entitled for all retiremental benefits.

5. Based on the above orders, learned counsel for the petitioner has mainly contended that as the respondents have rejected the claim of the petitioners only on the ground that there was a ban imposed by the State. Hence, the appointments which are made are contrary to the said ban. But the said issue was already decided by this Court in Dharmesh Kumar Sharma Vs. Director of Education (Secondary), U.P., Allahabad and Others reported in 2013 (4) ADJ 3. In this judgment it has been held as below:- "12. I have considered the rival submissions of the respective parties. It is not disputed that a short term vacancy occurred in the institution for Assistant Teacher in L.T. Grade on account of ad hoc promotion of Sri Bangali Mal as a lecturer in Maths. The committee of management appointed the petitioner against the aforesaid short term vacancy. Copy of the advertisement has been placed on the record. The petitioner has also placed on record the approval order of the District Inspector of School dated 17.6.1995 as Annexure- 7 to the writ petition. The District Inspector of Schools revoked the said approval only on the ground that the Director of Education issued a circular dated 09.6.1995 wherein a ban has been imposed in respect of recruitment of those teachers who are governed by the U.P. Secondary Education (Service Selection Board) Act, 1982.

13. The State Government had earlier issued various Government Orders putting ban on the recruitment in the Government department. The first Government Order was issued on 29.6.1991 vide a TELEX message, which was followed by the Government Order dated 17.7.1991. In both, the TELEX as well as in the Government Order, there was prohibition against the appointment in the Government Departments and there was no reference with regard to the appointment made in the private aided schools. By means of Government Order dated 30.7.1991 a communication was issued by the State Government which was addressed to the Chairman of the U.P. Secondary Education Service Commission placing restrictions against the recruitment which were governed by the provisions of the U.P. Secondary Education (Service Selection Board) Act, 1982. The said order was followed by another Circular dated 31st August, 1991 that no ad hoc appointment be made against any educational institution. However, on 26th September, 1991, the ban imposed by the Government Order dated 30 August, 1991 was withdrawn. This Court had occasion to consider those Government Orders in Writ Petition No.35071 of 1991 (St. Neelam Agarwal V. State of U.P. and others) and Writ Petition NIL of 1992 (Mahendra Pratap Singh V. District Inspector of Schools, Mau and others).

14. The circular dated 09.6.1995 on the basis of which the impugned order has been passed was considered by this Court in Writ Petition No.32742 of 1995 (Vinod Kumar and another v. District Inspector of Schools and another). This Court took the view that the said Circular does not put any ban on short term vacancy as these vacancies were to be filled in accordance with the Removal of Difficulties Order and not by Board. The relevant paragraph of the said reads as Under: "Submission advanced is that the impugned order is bad in law inasmuch as the appointments of the petitioners were against the short term vacancies created on account of ad hoc promotion of Shri Mahesh Chandra Palival and Shri Kailash Chandra Gupta L.T. Grade teachers to the posts of Lecturers in History and Civics. Further, the submission is that short term vacancies are to be filled up in accordance with the Removal of Difficulties Order and not by the Board. In support of the submission reliance has been placed upon the judgment of this Court in the case of Mukesh Kumar v. State of U.P. and others, 1996 AWC 556, wherein learned Single Judge of this Court relying upon the decision of Full Bench in the case of Radha Raizada v. Committee of Management, 1995 (3) UPLBEC 1551, has held that the circular dated 9.6.1995, referred to above, cannot come in the way of making selection and appointment against the short term vacancy."

6. In view of the above observations made by this Court, as the said ban is not for the short terms vacancies. In fact the petitioners were appointed on the resulted vacancy, only on short term. Hence, the ban order is not applicable as held by this Court in above said judgment. Accordingly, learned counsel for the petitioners requested to set aside the same and also direct the respondents to approve the appointments of the petitioners which were made by the third-respondent on short term vacancy.

7. In reply to the said contentions, learned Standing Counsel appearing on behalf of respondent has mainly relied on the averments made in paragraph Nos.3, 7 and 19 of the counter affidavit. Based on the above averments, learned Standing Counsel has submitted that there was no short term vacancy existing at the time when the petitioners were appointed and the appointment was made contrary to law. Hence the appointment which were made by the third respondent are contrary to the ban imposed by the State. Further, he has also stated that the impugned order dated 01.07.2000 is not issued by the District Inspector of Schools. Hence the petitioners are not entitled to continue as their appointments are not in accordance with law. In view of the said submissions, requested to dismiss the writ petition.

8. Considering the submissions made by learned counsel for the parties and also on perusal of the record, that the petitioners were appointed on a short term vacancy, therefore, ban order would not be applicable to the filling up of the short term vacancy as held by this Court in Dharmesh Kumar Sharma Vs. Director of Education (Secondary), U.P., Allahabad and Others reported in 2013 (4) ADJ 3. Further, as per the stand taken by the petitioner and also as per the averments made in paragraph 14, respondents ought to have passed order approving the appointment of the petitioner when the proposal was sent by the third-respondent. As contended by the learned counsel for the petitioner, this Court has passed an order on 5th December, 2000 for releasing the salary of the petitioner which itself may be taken into consideration that this Court has approved the appointments of the petitioners.

9. In view of the said circumstances, as the petitioners have worked more than two decades and their salaries were regularly paid in view of the interim orders, therefore, it is needless to go into legality or regularity of the appointment of the petitioners which was made by the third-respondent.

9. In view of the said circumstances, as the impugned order dated 01.07.2000 is contrary to the principles of law as laid down in the above referred case and accordingly the same is set aside.

10. Accordingly, the present writ petition is disposed of, directing the respondents to release all pensionary benefits to the first petitioner, regularizing the services of both the petitioners. Order Date :- 7.5.2025 AdityaG (Donadi Ramesh,J.) ADITYA GAUTAM ADITYA GAUTAM High Court of Judicature at Allahabad High Court of Judicature at Allahabad