Allahabad High Court
State Of Up And 3 Others vs Ram Kesh Yadav And Another on 12 May, 2025
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:76514-DB
Court No. - 29
Case :- SPECIAL APPEAL No. - 48 of 2025
Appellant :- State Of Up And 3 Others
Respondent :- Ram Kesh Yadav And Another
Counsel for Appellant :- Ashish Mohan Srivastava,C.S.C.
Counsel for Respondent :- Arpan Srivastava
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Praveen Kumar Giri,J.
(Delivered by Praveen Kumar Giri, J.)
1. This appeal arises out of judgment and order dated 26.4.2023 passed by the learned Single Judge in Writ A No. 7471 of 2016 in a batch of writ petitions holding the respondent/writ petitioner lawfully appointed against a substantive vacancy of Assistant Teacher and directing to extend all consequential benefits to the writ petitioner.
2. Brief facts of the case are that Bahudhandhi Intermediate College, Sonahita, Jaunpur is a recognized and aided institution and the respondent/writ petitioner was appointed on the post of Assistant Teacher (LT Grade) in the place of one Jagat Pal Singh who was promoted to the post of principal. The appointment of the petitioner was done on a substantive vacant post. The appointment letter was issued on 26.04.1992 in favour of the petitioner as Assistant Teacher (LT Grade). On 28.04.1992, the petitioner joined on the post of assistant teacher in the institution. The petitioner alleges that his appointment was made by following due procedure but he was not paid salary, therefore, he filed Writ Petition No. 6623 of 1993 for payment of salary. On 15.04.1993, the Court passed an order directing consideration of the claim of the petitioner. On 05.07.1995, the then District Inspector of Schools in compliance of order dated 15.04.1993, passed by this Hon'ble Court, granted financial approval. After the transfer of the District Inspector of Schools, salary of the petitioner was stopped but yet again on 03.06.1997, District Inspector of Schools passed an order directing payment of salary to the petitioner and the petitioner was paid salary from May 1997 up to October 1998.
3. The then District Inspector of Schools has again stopped the salary of the petitioner on 30.03.1999, which was payable from November 1998. The petitioner filed Writ Petition No. 50664 of 2000 for payment of salary and this Court vide order dated 24.11.2000 directed the Director of Secondary Education to dispose of the representation of the petitioner. In compliance of the order dated 24.11.2000 passed by this Court, the Director of Secondary Education vide his order dated 18.06.2003 rejected the claim of the petitioner with following observations:
"5. उपलब्ध आख्या/अभिलेखानुसार संस्थाधिकारियों द्वारा श्री जगतपाल सिंह की पदोन्नति से मौलिक रुप से रिक्त पद का बिना अधियाचन भेजे बिना विज्ञापन किये मौलिक रुप से रिक्त पदों पर नियुक्तियों पर रोक के बाद भी कूटरचित ढंग से पत्रजात तैयार कर श्री राम केश यादव की नियुक्ति दिखायी गयी एवं तथ्यों का गोपन मा० उच्च न्यायालय में याचिका योजित कर वेतन भुगतान का आदेश प्राप्त किया गया था तथा वेतन की अग्रहरित किया गया। इसी पद के प्रति प्रबन्ध तन्त्र द्वारा कूटरचित अभिलेखों के आधार पर श्री सत्यवान यादव की भी नियुक्ति दिखायी गयी थी जिसे सत्यवान यादव द्वारा योजित याचिका संख्या 20913/2001 में पारित आदेश दिनांक 25.5.2001 के अनुपालन में इस कार्यालय के पत्र पृ०सं० सामान्य (1) तृतीय/2156-61/2002-2003 दिनांक 13.9.2002 द्वारा अमान्य कर दिया गया है।"
4. Aggrieved by the aforesaid order, the petitioner filed third petition being Writ Petition No. 36571 of 2003 and this Court vide order dated 28.07.2006 again directed the Director to reconsider the claim of the petitioner. The Director of Secondary Education in compliance of the order of writ Court dated 28.07.2006, rejected the claim of the petitioner on 31.12.2008. The relevant part of the order is being quoted below:
"जहां तक श्रीमती रांगदुलारी देवी व अन्य बनाम संयुक्त शिक्षा निदेशक, वाराणसी व अन्य तथा श्री आशिक प्रशाद शुक्ला बनाम जिला विद्यालय निरीक्षक, इलाहाबाद में पारित आदेश का प्रश्न है याची का प्रकरण उक्त आदेश से आच्छादित नहीं है क्योंकि मा० mPp U;k;ky; (sic) न्यायालय द्वारा राधा रायजादा (1994) 3 यू०पी०एल०बी०ई०सी० में दिये गये निर्णय के पूर्व याची का अनुमोदन-सक्षम अधिकारी द्वारा नहीं दिया गया था। संदर्भगत प्रकरण में नियुक्ति प्रबन्धक द्वारा कूटरचित ढंग से दिनांक 19-1-92 को पद रिक्त दिखाकर की गयी है जबकि वास्तव में उस दिनांक को कोई पद रिक्त हुआ ही नहीं है। मांग किये जागे पर भी प्रबंधक द्वारा प्रबंध समिति की कार्यवाही पंजिका आदि पत्रजात प्रस्तुत नहीं किया गया। इस प्रकार याची की नियुक्ति बिना पद व विहित प्रकिया का पालन किये होने के कारण अवैधानिक है। जिला विद्यालय निरीक्षक, जौनपुर द्वारा दिनांक 3-6-97 को माननीय उच्च न्यायालय के आदेश के अनुपालन में वेतन भुगतान का आदेश पारित किया गया है जबकि इस प्रकार का कोई आदेश माननीय उच्च न्यायालय द्वारा पारित ही नहीं है। माननीय mPp U;k;ky; (sic) द्वारा राधा रायजादा प्रकरण में दिये गये निर्णय में उल्लिखित मार्गदर्शी सिद्वान्तों के आधार पर परीक्षण किये बिना ही याची को वेतन भुगतान आदेश पारित किया गया। अतः याची की नियुक्ति बिना पद के होने के कारण तथा अधियाचन व समाचार पत्रों में विज्ञापन न होने के कारण तथा जिला विद्यालय निरीक्षक द्वारा नियुक्ति हेतु पूर्वानुमति न दिये जाने के कारण अवैध है। जिनके वेतन भुगतान का दायित्व विभाग/शासन का नहीं है।
एतद्द्वारा माननीय उच्च न्यायालय के आदेश दिनांक-28-07-2005 के अनुपालन में याची द्वारा वेतन भुगतान हेतु की गयी मांग निरस्त करते हुए प्रकरण निस्तारित किया जाता है।"
5. Thus, the Director of Secondary Education rejected the claim of the petitioner on the ground that there was no vacant post and no requisition was sent by the petitioner on the substantive post and that due procedure, namely, advertisement of the vacancy in two newspapers, was not followed. Against the order dated 31.12.2008 passed by the Director, the petitioner filed fourth writ petition being Writ Petition No. 22809 of 2009 before this Court and this Court vide order dated 19.02.2015 directed the Regional Level Committee to scrutinize the claim of the petitioner under Section 33-B of U.P. Secondary Education (Service Selection Boards) Act, 1982, the relevant portion of the judgment is being quoted below:
"In light of the above discussion, it is apparent that the Impugned order cannot be sustained. The Writ Petition is accordingly allowed and the order dated 31.12.2008 is quashed. However, considering the over all circumstances of the case, this Court deems it appropriate to direct the Regional Level Committee to scrutinize the aspect of the petitioner's appointment against a then subsisting substantive vacancy only and to consider the case of the petitioner for regularization under the provisions of Section 33-B of the U.P. Secondary Education Selection and Service Board Act 1982. This exercise be completed by the Committee within a period of one month from the date of production of a certified copy of this order. The consequential relief sought by the petitioner would abide by the decision taken by the Committee aforesaid"
6. The Regional Level Committee scrutinized the claim after calling for records and rejected the claim of the petitioner on 18.11.2015, on the ground that Jagat Pal Singh was promoted to the post of Principal on 26.12.1986 and after 6 years of his promotion, as per the regulation, there was no vacancy left in the institution. For the same post one Satyavan Yadav was also given appointment later by the committee and he had also preferred his writ petition and the claim of Satyavan as well as petitioner Ramkesh Yadav was rejected by the separate orders of the Director. The Regional Level Committee also observed that there was no vacancy as per the law and due procedure was not followed by the committee for appointing the petitioner on the substantive post as the vacancy was not advertised in two news papers and no requisition was sent to the District Inspector of Schools before appointing the petitioner on the post of Assistant Teacher (LT Grade) which was lying vacant after the promotion of Jagat Pal Singh. Relevant part of the order of Regional Level Committee dated 18.11.2015 read as under :
"याची द्वारा अपनी नियुक्ति के सम्बन्ध में उपलब्ध कराये गये पत्रजातों के परिशीलन से स्पष्ट हुआ कि याची की नियुक्ति किस रिक्त पद के प्रति हई है और उसके पूर्व पदधारक कौन थे इसका स्पष्ट उल्लेख कहीं नहीं है, केवल प्रबन्ध समिति की बैठक दिनांक 26.4.1992 के प्रस्ताव संख्या-2 द्वारा नियुक्ति किये जाने का प्रस्ताव का उल्लेख किया गया है. fdUrq प्रस्ताव में यह उल्लेख नहीं किया गया है कि यह नियुक्ति fdl पद के प्रति प्रस्तावित की गयी है। fopkj.kh; fcUnq ;g gS fd ;kph Jh jkeds'k ;kno dh fu;qfDr fnukad 19-1-1992 dks fd;s tkus dk mYys[k fd;k x;k gS] ckn es mudh fu;qfDr izcU/kra= }kjk Jh txriky flag l0v0 ds प्रधानाध्यापक पद पर नियुक्ति होने से रिक्त पद के प्रति दर्शायी गयी है, जबकि उक्त पद दिनांक 26.12.1986 से ही रिक्त हुआ है। मौलिक रूप से रिक्त पद पर ६ वर्ष बाद नियुक्त्ति प्रस्तावित करने के बारे में कोई विस्तृत विवरण अभिलेखों में उपलब्ध नहीं है। इस प्रकार श्री रामकेश यादव की नियुक्ति किस पद के प्रति की गयी है, का स्पष्ट विवरण उपलब्ध कराने में याची एवं izcU/kra= foQy jgss gSaA यहाँ यह भी उल्लेख करना समीचीन होगा कि याची की नियुक्ति के सम्बन्ध में की गयी कार्यवाही से lacfU/krआवश्यक अभिलेख यथा पदसृजन आदेश, मौलिक रूप से पद रिक्त होने की स्थिति नियुक्त किये जाने के पूर्व जिला विद्यालय निरीक्षक की अनुमति, विज्ञापन एवं चयन समिति आदि के समक्ष उपस्थित अन्य अभ्यर्थियों के विवरण से सम्बन्धित कोई भी अभिलेख उपलब्ध नहीं कराया गया।"
7. The petitioner against order dated 18.11.2015 passed by the Regional Level Committee filed the Writ Petition No. 7471 of 2016 which has been allowed by the learned Single Judge. Thus, the State is before us challenging the order of learned Single Judge.
8. Learned State Counsel submits that the post was vacant for more than six years and no requisition was sent to the Commission (now Selection Board) through the District Inspector of Schools. No such evidence has been appended. The Regional Level Committee has enquired this aspect and has observed that no record was made available regarding permission of the District Inspector of Schools, advertisement of the vacancy and details of other candidates who appeared before the Selection Committee.
9. Learned Standing Counsel appearing for the appellant-State has argued that the vacancy was not advertised in two newspapers which is an essential criteria for filling a substantive post. It is submitted that the procedure for filling substantive vacancies, in case they are not filled up by the Board, has been prescribed in the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order 1981, wherein rule 5 of the said order prescribes that the Management would inform the details of the substantive vacancy to the DIOS who would invite applications from the local employment exchange and also through public advertisements in at least two newspapers having adequate circulation in the State.
10. Learned State Counsel has further argued that the Management was not authorized to do the selection as the DIOS is authorized under the prescribed Rules to do the selection on substantive vacancies under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order 1981.
11. Learned State Counsel further submits that the instant writ petition was barred by principle of res judicata since the first writ petition bearing Writ- No. A- No 6623 of 1993 was dismissed on 20th July 2010 for the same relief as the petitioner had not filed any recall application against order dated 20.7.2010.
12. Learned State Counsel has argued that selection and appointment are two different matters and has relied upon the provisions of the Section 18(1)(b) of Uttar Pradesh Secondary Education Services Commission And Selection Board Act, 1982 (Act No. 5 of 1982) (hereinafter referred to as 'Old Act of 1982') which is as under:
"The post of such teacher has actually remained vacant for more than two months, then, the Management may appoint, by direct recruitment or promotion, a teacher on purely ad-hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made under."
13. The Counsel for the State has emphasized that the regulations made thereunder mean that the procedure prescribed under the Intermediate Education Act 1921 for recruitment has to be followed even if the recruitment is being done by the Committee of Management and in the instant case the petitioner has not even disclosed the subject in which he claims to have been appointed even after litigating for more than thirty years.
14. The State counsel has further argued that the department or the Regional Level Committee would have no material to ascertain the legality of the academic eligibility of the petitioner for the appointment to the post he is claiming as the Part II A of Intermediate Education Act 1921, specifies academic qualifications subject-wise and the petitioner has no-where stated about the subject in which he claims to have been appointed.
15. The State counsel has relied upon the judgement of the Hon'ble Supreme Court in the case of Pramod Kumar Vs U.P Secondary Education Services Commission (2008) 7 SCC 153 wherein the Hon'ble Supreme Court in para 16 to 18 has held that the qualifications for holding a post have been laid down under a statute and any appointment contrary to the statute/statutory rules would be void.
16. Learned State Counsel has further relied upon the judgement of Amrit Yadav Vs The State Of Jharkhand passed in civil Appeal Nos. 13950-13951 of 2024, decided on 10.2.2025, wherein the Hon'ble Supreme Court in Para 38 has held as under :
"38. In the present case, the appellant-employee, who had been appointed under the advertisement dated 29th July, 2019, does not have any right on the subject posts once it is concluded that the advertisement is itself void and is declared illegal and unconstitutional. The candidates' right to continue on such posts is contingent upon the legality of the advertisement and the recruitment process conducted in pursuance thereof."
17. The State Counsel has further relied upon the judgement of Hon'ble Apex court in case of State of Assam and others Vs Arabinda Rabha & Others Civil Appeal No 2350 of 2025, decided on 7.3.2025 in which the Hon'ble Supreme court in para 35 has held that recruitment/selection process has to be conducted consistent with statutory provisions.
18. The State counsel has also relied upon the judgement passed by the Hon'ble Supreme court in case of Smt Dulu Deka Vs. State of Assam, 2023 LiveLaw (SC) 691, wherein in paragraph 7, the Apex Court has held that it is difficult to believe that a person has been working for two decades without any salary.
19. Per contra, learned Counsel for the respondent/writ petitioner has submitted that the procedure for filling a substantive vacancy is governed by Section 18 of Old Act of 1982.
20. Learned Counsel for the writ petitioner submits that the management had sent the requisition of the aforesaid vacancy to the Commission on 23.01.1992, however, the Commission did not send any communication. Thereafter, the Committee of Management proceeded to advertise the vacancy on the notice board. An appointment letter was issued to the writ petitioner on 26.04.1992 and papers related to the appointment of writ petitioner were sent to District Inspector of Schools.
21. Learned counsel for the writ petitioner has further argued that when the appointment of the petitioner was made on 26.4.1992, the amendment was in effect and hence there is no illegality in appointment of the petitioner by the Committee of Management. Moreover, the earlier writ petitions dealing the said issue had attained finality, hence the Regional level Committee could not have gone into the validity of the petitioner's appointment.
22. It is submitted that procedure for advertisement of vacancy was not mandatory in view of the decision in Radha Raizada and another vs. Committee of Management, Vidyawati Darbari Girls Inter College and others, 1994 (3) UPLBEC 1551, later explained in Anshika Prasad Shukla vs. District Inspector of Schools, Allahabad and others, 1998 (3) UPLBEC 1722.
23. We have heard learned counsel for the parties and perused the materials available on record.
24. Respondent/writ petitioner, Ram Kesh Yadav, is stated to have been selected and appointed on the post of Assistant Teacher (LT Grade) in Bahudhandhi Inter College, Sonhita, Jaunpur which is a recognized institution aided upto High School. The institution is governed by Uttar Pradesh Secondary Education Services Commission and Selection Board Act, 1982. The provision of Section 18(1) of the Old Act of 1982, clearly requires the Management to notify a vacancy to the Commission (now Selection Board) in accordance with the provisions of the Act which is reproduced herein below :
"18. Ad hoc Teachers.-(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and-
(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or
(b) the post of such teacher has actually remained vacant for more than two months, then, the Management may appoint, by direct recruitment or promotion, a teacher on purely ad-hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act 1921 or the regulations made under."
(2) The provision of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in Schedule) on ad hoc basis with the substitution of the expression 'Board' for the expression 'Commission'.
25. In the present case, both the Directors vide their orders dated 18.06.2003 and 31.12.2008 respectively have held that the appointment of the petitioner was made without any requisition being sent to the Commission (now Selection Board). The order of Regional Level Committee quoted above also speaks on the similar line that no such requisition was sent. Thus, the selection/appointment of the petitioner by the Committee of Management is not shown to have been made against a vacancy notified to the Commission
26. On perusal of the record, it is clear that due process has not been adopted while appointing the writ petitioner as an Assistant Teacher as the post was not advertised in two news papers which is in violation of the procedure prescribed in Section 16-E (2) of UP Intermediate Education Act, 1921 which read as under :
"16-E (2) Every post of Head of Institution or teacher of an institution shall except to the extent prescribed for being filled by promotion, be filled by direct recruitment after intimation of the vacancy to the Inspector and advertisement of the vacancy containing such particulars as may be prescribed, in at least two news papers have adequate circulation in the State."
27. Further, nothing has come on record that any selection committee was formed as per Section 16-F(2) of U.P. Intermediate Education Act, 1921 which relates to appointment of teachers and prescribes three experts nominated by the Inspector not belonging to the district in which the institution is situated out of the panel of names prepared under this section. Section 16-F(2) of the Act, 1921 read as under :
"16-F(2) For the selection of candidates for appointment as teacher in an institution, there shall be a Selection Committee consisting of -
(i) the President or any member of the Committee of Management nominated by the Committee by resolution in that behalf, who shall be the Chairman;
(ii) the Head of such institution;
(iii) three experts nominated by the Inspector from persons not belonging to the district in which the institution is situated, out of the panel of names prepared under this Section."
28. The case of Satyavan Yadav was decided by this Court on its own merit and by the same order, the claim of the present petitioner was not decided. The orders passed by this Court was scrutinized by the Director of Education, Uttar Pradesh, as well as Regional Level Committee and it was observed that committee of management had not produced any document showing that due procedure was followed in appointing the petitioner as Assistant Teacher. Though the petitioner had annexed documents but it was never disclosed that after vacancy of six years, how Satyavan Yadav as well as petitioner was appointed for the same post on different dates and who were other candidates who had participated in the selection process carried out by the committee constituted for the said purpose. The Regional Level Committee has examined entire document and nothing has been furnished by the committee of management before the Regional Committee, therefore, the Regional Committee has observed as under :
"यहाँ यह भी उल्लेख करना समीचीन होगा कि याची की नियुक्ति के सम्बन्ध में की गयी कार्यवाही से lacfU/krआवश्यक अभिलेख यथा पदसृजन आदेश, मौलिक रूप से पद रिक्त होने की स्थिति नियुक्त किये जाने के पूर्व जिला विद्यालय निरीक्षक की अनुमति, विज्ञापन एवं चयन समिति आदि के समक्ष उपस्थित अन्य अभ्यर्थियों के विवरण से सम्बन्धित कोई भी अभिलेख उपलब्ध नहीं कराया गया।"
29. Thus, no evidence has been provided by the committee of management in respect of other candidates who appeared in the selection process and calling only one person for selection on the post is itself bad in eye of law. The appointment of the petitioner is without following any procedure and violating the principal of natural justice of other similarly situated candidates to appear in the selection process. Therefore, the selection of the petitioner is illegal and void ab initio.
30. We are supported in our view by the decision of Hon'ble the Supreme Court in the case of State of Bihar Vs Chandreshwar Pathak, AIR 2014 SC 3752, wherein the Apex Court has held that appointment without advertisement is liable to be terminated as appointee enters from back-door and it violates Article 14 and 16 of the Constitution of India.
31. The writ petitioner was paid salary only for a few months between May 1997 to October 1998 on the basis of interim orders passed by this court though the Court had not clearly directed the educational authority to grant financial approval. Thereafter, the District Inspector of Schools while scrutinizing the entire record had stopped the salary of the petitioner and it has come on record that the petitioner has not been paid salary for several years. On perusal of record, we do not find any order passed by the educational authorities approving the appointment of present appellant after considering relevant questions i.e. whether vacancy existed; any requisition was sent to the Commission; any fair and transparent process of recruitment was undertaken in terms of the provisions of Intermediate Education Act 1921 etc. The payment of salary to the appellant for few months was pursuant to approval orders passed without any application of mind at the level of DIOS. The Director on elaborate examination of record has returned a finding that neither any requisition was sent to the Commission nor any procedure required to be followed for appointment against a 'substantive vacancy was adhered to and, therefore, the claim of the appellant cannot be sustained. The observation and findings contained in the order of Director are, therefore, clearly borne out from the records. Learned Single Judge has not adverted to this aspect of the matter.
32. In that view of the matter, the appeal filed by the appellant/State is liable to succeed. Appeal is, accordingly, allowed. The judgment and order of learned Single Judge is set aside. The writ petition is dismissed.
Order Date :- 12.05.2025
DKS/K.Tiwari
