Reserved on 22.6.2022

Delivered on 26.9.2022

A.F.R.

Court No. 39

Case :- SPECIAL APPEAL No. - 1056 of 2018

Appellant :- Chandra Prakash Singh

Respondent :- District Inspector Of Schools And 2 Others

Counsel for Appellant :- Ramesh Chandra Dwivedi,Dinesh

Kumar Singh

Counsel for Respondent :- C.S.C.

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikram D. Chauhan,J.

1.Heard Sri Dinesh Kumar Singh learned counsel for the

appellant and Sri Ram Ratan Dev Vanshi learned Standing

Counsel for the State-respondent.

2.The present special appeal is preferred challenging the

judgment and order dated 10

th

August, 2018 passed by the

learned Single Judge in Writ-A No. 30395 of 2001 (Chandra

Prakash Singh Vs. District Inspector of Schools And others).

3.The said order dated 10

th

August, 2018 was passed in the

absence of the counsel for the Appellant-Petitioner in the writ

proceedings and the learned Single Judge after going through

the pleadings and the relief sought has simply recorded a

finding that the Appellant-Petitioner has not been able to make

out a case so as to justify interference of this Court by granting

relief. No finding, however, has been returned on the merits of

the claim of the petitioner/appellant herein.

4.The primary challenge to the order dated 10

th

August,

2018 is to the effect that the order has been passed ex parte and

the conclusion drawn by the learned Single Judge is

2

unsustainable in law. It is also submitted by the learned counsel

for the Appellant-Petitioner that the Appellant was validly

appointed on the post of Assistant Teacher in L.T. Grade in the

institution in question and has been denied the payment of

salary on account of illegal order passed by the respondent

authority which was subject matter of challenge in the Writ

Petition No. 30395 of 2001 against which the present special

appeal has been preferred. The learned Single Judge has not

adjudicated the claim of the petitioner.

5.The present special appeal is an intra-court appeal from a

Single Bench of this Court to a Division Bench of this Court

and the purpose of providing special appeal against an order of

learned Single Judge is to provide another tier of screening by

the Division Bench and the same would not mean that the

learned Single Judge is subordinate to the Division Bench

although the learned Single Judge under law of precedent and

principle of finality attached to the orders of Appellate Court, is

bound by the order passed by the Appellate Court. While

considering the powers of a Division Bench while deciding

intra-court appeal, the Hon’ble Apex Court in Roma Sonkar Vs.

Madhya Pradesh State Public Service Commission and another

1

has held that in the matter of intra-court appeal arising out of

writ proceedings, the Division Bench needs to consider the

appeal on merits by deciding the correctness of the judgment of

the learned Single Judge instead of remitting the matter to the

learned Single Judge. In this reference, paragraph no. 3 of the

judgment of the Apex Court as aforesaid of the Apex Court is

quoted hereinbelow :-

12018 (17) SCC 106

3

“3. We have very serious reservations whether the Division

Bench in an intra-court appeal could have remitted a writ

petition in the matter of moulding the relief. It is the exercise

of jurisdiction of the High Court under Article 226 of the

Constitution of India. The learned Single Judge as well as the

Division Bench exercised the same jurisdiction. Only to

avoid inconvenience to the litigants, another tier of screening

by the Division Bench is provided in terms of the power of

the High Court but that does not mean that the Single Judge

is subordinate to the Division Bench. Being a writ

proceeding, the Division Bench was called upon, in the intra-

court appeal, primarily and mostly to consider the

correctness or otherwise of the view taken by the learned

Single Judge. Hence, in our view, the Division Bench needs

to consider the appeal(s) on merits by deciding on the

correctness of the judgment of the learned Single Judge,

instead of remitting the matter to the learned Single Judge.”

6.Learned counsel for the Appellant as well as learned

Standing Counsel for the Respondents have consented to

advance arguments on the merits of the dispute as the writ

petition as well as the counter affidavit have been filed along

with the memo of appeal and, according to the learned counsel

for the parties, all the pleadings are on record and the matter

can be adjudged on the merits itself. It is to be noted that the

dispute in the present case started in the year 1997 and,

thereafter, the matter has been relegated to the respondent

authorities for decision afresh on more than one occasion.

However, the dispute has not been settled and under the

circumstances when the litigant has travelled for more than two

decades without the controversy being set at rest by judicial

determination, it would be appropriate that the matter be

considered on the merits of the dispute, specifically when both

the parties have advanced argument on the merits.

7.Learned counsel for the Appellant-Petitioner submits that

there is an education institution in the name of Mahatama

4

Gandhi Inter College, Sakhawania, Kushinagar (for brevity

hereinafter referred to as ‘institution’) which is recognised

under the provisions of U.P. Intermediate Education Act, 1921

and the provisions of U.P. Act No. 24 of 1971 are applicable to

the said institution being an aided institution. On 1

st

December,

1996, a short term vacancy of teacher arose in the aforesaid

institution on account of adhoc promotion of Sri Shambhu

Sharan Singh to the next higher post in the L.T. Grade. The

intimation about the vacancy was sent to the District Inspector

of Schools and the vacancy was also notified on the notice

board of the institution. The vacancy was later advertised in the

newspaper ‘Aaj’ on 11

th

December, 1996 and in another local

newspaper ‘Watchkara’. It is further submitted that in

pursuance to the abovementioned advertisement, the Appellant-

Petitioner being qualified applied against the advertised

vacancy. The selection committee was constituted under the

provisions of the U.P. Secondary Education Services

Commission (Removal of Difficulties) (Second) Order, 1981

(hereinafter referred to as “the Order, 1981”). Interview was

conducted and the Appellant-Petitioner having obtained highest

quality point marks amongst the candidates who had applied

against the aforesaid vacancy, had been recommended by the

selection committee for appointment as Assistant Teacher in

L.T. Grade on ad-hoc basis. On the basis of the

recommendation made by the aforesaid selection committee,

the Committee of Management in its meeting held on 30

th

December, 1996 had resolved to appoint the Appellant-

Petitioner as Assistant Teacher in L.T. Grade on ad-hoc basis.

5

8.The papers with regard to the appointment of the

Appellant-Petitioner along with the resolution of the Committee

of Management were forwarded by the Manager of the

institution to the District Inspector of Schools for his prior

approval/financial sanction. When no response was received,

the Committee of Management of the institution issued a formal

letter of appointment on 15

th

January, 1997 to the Appellant-

Petitioner and the Appellant-Petitioner in pursuance to the

aforesaid letter of appointment joined his duty as Assistant

Teacher in L.T. Grade in the institution on 16

th

January, 1997.

The District Inspector of Schools vide order dated 28

th

July,

1997 refused to grant the financial approval to the appointment

of the Appellant-Petitioner. The aforesaid refusal to grant

approval to the appointment of the Appellant-Petitioner by the

District Inspector of Schools was on account of the fact that the

Committee of Management was not having power of

appointment at that point of time and as such, the appointment,

as per the District Inspector of Schools, was illegal.

9.The Appellant-Petitioner being aggrieved by the

abovementioned order dated 28

th

July, 1997 preferred Writ

Petition No. 32449 of 1997 before this Court. The aforesaid

writ petition was finally disposed of by the judgment and order

dated 26

th

September, 1997 with the direction to the respondent

- District Inspector of Schools to examine the matter whether

there was any short term vacancy as it was not clear whether

the post on which the Appellant-Petitioner was working was

converted from C.T. Grade to L.T. Grade or it was a vacancy on

the post which had fallen vacant or it was a short term vacancy.

It was further directed that the District Inspector of Schools

6

shall examine whether the Committee of Management had

followed the procedure prescribed for the appointment.

10.Thereafter, the Appellant-Petitioner made a

representation to the District Inspector of Schools along with

the certified copy of the judgment and order dated 26

th

September, 1997 passed by this Court. The District Inspector of

Schools in pursuance to the abovementioned order dated 26

th

September, 1997 has proceeded to pass the order dated 2

nd

October, 2000 granting financial approval to the appointment of

the Appellant-Petitioner as Assistant Teacher in L.T. Grade. A

perusal of the above-mentioned order dated 2

nd

October, 2000

passed by the District Inspector of Schools would show that the

aforesaid approval had been granted in compliance of the order

dated 26

th

September, 1997 passed by this Court.

11.It is submitted that the said officer who was posted as

District Inspector of Schools, Kushinagar was transferred in

October, 2000 and, thereafter, the new incumbent had taken

charge of the post of District Inspector of Schools, Kushinagar.

The new District Inspector of Schools, Kushinagar by the order

dated 9

th

November, 2000 had stopped the salary of the

Appellant-Petitioner and further directed the Manager of the

institution to show cause as to why action be not taken under

the provisions of U.P. Intermediate Education Act, 1921. A bare

perusal of the order dated 9

th

November, 2000 of the District

Inspector of Schools would demonstrate that the aforesaid order

had been passed on the basis of the report of the enquiry

committee constituted by the District Magistrate, Kushinagar

wherein appointment of five Assistant Teachers in the

institution had been found to be irregular and the name of the

7

Appellant-Petitioner figured in the said list of teachers

irregularly appointed.

12.The Appellant-Petitioner being aggrieved by the

abovementioned order dated 9

th

November, 2000 passed by the

District Inspector of Schools preferred Civil Misc. Writ Petition

No. 5925 of 2001 before this Court. The aforesaid writ petition

was finally decided by the judgment dated 16

th

February, 2001

and the order dated 9

th

November, 2000 in so far it relates to the

Appellant-Petitioner was set aside and it was directed by this

Court that the copy of the enquiry report conducted by the

District Magistrate shall be supplied to the Appellant-Petitioner

and, thereafter, a fresh reasoned and speaking order shall be

passed after giving opportunity of hearing to the Appellant-

Petitioner and the Committee of Management of the institution.

13.In pursuance of the order dated 9.11.2000 passed by this

Court, the District Inspector of Schools on 13

th

July, 2001 had

passed an order recalling the earlier order dated 2

nd

October,

2000 according financial approval to the appointment of the

Appellant-Petitioner and holding that the appointment of the

Appellant-Petitioner was without any post and as such was

irregular and illegal. The finding recorded by the District

Inspector of Schools in the order dated 13

th

July, 2001 is to the

effect that the Appellant-Petitioner was appointed on account of

the vacancy created by ad-hoc promotion of one Sri Shambhu

Sharan Singh on the post of L.T. Grade whereas the promotion

of Sri Shambhu Sharan Singh was not accorded financial

approval by the District Inspector of Schools and as such no

vacancy was created. The order dated 13

th

July, 2001 further

records that the vacancy in question was not advertised in

8

widely circulated newspaper as per the Full Bench decision of

this Court in the case of Radha Raizada and others Vs.

Committee of Management, Vidyawati Darbari Girl's Inter

College and others

2

.

14.The Appellant-Petitioner being aggrieved by the order

dated 13

th

July, 2001 preferred Writ-A No. 30395 of 2001

before this Court. The aforesaid writ petition was finally

dismissed by means of the judgment and order dated 10

th

August, 2018, which is subject matter of challenge in the

instant Special Appeal.

15.It is submitted on behalf of the counsel for the Appellant-

Petitioner that while passing the order dated 13

th

July, 2001, the

District Inspector of schools has incorrectly recorded that the

financial approval to the promotion of Shambu Sharan Singh

had not been granted and, therefore, no post of Assistant

Teacher fell vacant. The counsel for the Appellant submits that

by the order dated 10

th

September, 1999, financial approval was

granted to the promotion of Shambu Sharan Singh and after the

promotion of Shambu Sharan Singh on the post of Assistant

Teacher, the post of Assistant Teacher in L.T. Grade fell vacant.

16.Learned standing Counsel appearing on behalf of the

respondents submits that the District Inspector of Schools has

rightly rejected the claim of the Appellant-Petitioner. It is

submitted that the then District Inspector of Schools,

Kushinagar Shri Kripa Lal Vishwakarma committed gross

irregularity in making appointment during his tenure and

complaints with regard to illegal appointment of teachers were

received by the Government and the District Magistrate. As a

21994 (3) UPLBEC 1551

9

result of those complaints, the charge of the office of the

District Inspector of Schools was handed over to Shri Gyan

Prakash Singh and the aforesaid incumbent to the office of

District Inspector of Schools had informed the District

Magistrate about the irregularities committed by the earlier

District Inspector of Schools.

On the aforesaid basis, by the order dated 13

th

October,

2000 the District Magistrate, Kushinagar constituted a

committee for enquiry into the allegations of irregularity in the

appointment of teachers by Shri Kripa Lal Vishwakarma. The

aforesaid enquiry committee on the basis of the records

available prima facie came to the conclusion that Shri Kripa Lal

Vishwakarma, the erstwhile District Inspector of schools, made

illegal/irregular appointments in 29 institutions during his

tenure. The aforesaid enquiry committee also found that the

appointment of the Appellant-Petitioner was also not in

accordance with Law. The list of irregular appointments made

by Shri Kripa Lal Vishwakarma while he was the District

Inspector of Schools, Kushinagar was also forwarded by the

District Inspector of Schools to the District Magistrate by his

Communication dated 8

th

November, 2000.

It is further submitted that on account of the Government

Order dated 24th June, 1993, the Committee of Management

was not authorised to make appointment. It is submitted that the

order of financial approval dated 10

th

September, 1999 (as

claimed by Appellant-Petitioner) in respect of Shambhu Sharan

Singh has not been brought on record by the Appellant-

Petitioner and that no financial approval was granted to Shri

Sambhu Sharan Singh.

10

He further submits that the advertisement in respect of

the post in question was said to have been made on 11

th

December, 1996 in respect of a short term vacancy that arose on

1

st

December, 1996 on adhoc promotion of Shri Shambhu

Sharan Singh to the next higher post in L.T. Grade and

according to the Appellant-Petitioner, the promotion of Shri

Shambhu Sharan Singh to next higher grade was approved on

10

th

September, 1999 and as such there was no occasion to

conduct selection proceedings and issue advertisement in the

year 1996 when there was no short-term vacancy.

17.Having heard learned counsels for the parties and

perused the record. We may note that the claim of the

petitioner/appellant in the writ petition is that he was appointed

against a short term vacancy which arose on 1.12.1996 on

account of adhoc promotion of the incumbent Shri Shambhu

Sharan Singh to LT Grade. The contention is that the said

vacancy was notified to the District Inspector of Schools and

was also notified on the Notice Board of the institution. The

vacancy was also advertised in two daily newspapers of wide

circulation and on the interview taken by the Selection

Committee constituted under the provisions of the U.P.

Secondary Education Services Commission (Removal of

Difficulties) (Second) Order, 1981, the petitioner was

recommended against the post having attained highest quality

point marks amongst other candidates. The Committee of

Management in its meeting held on 30.12.1996, accepting the

recommendation of the Selection Committee, resolved to

appoint the petitioner as Assistant Teacher in L.T. Grade on

adhoc basis. The papers relating to appointment of the

11

petitioner alongwith the resolution of the Committee of

Management were forwarded to the District Inspector of

Schools by the Manager of the institution on 31.12.1996 and

were received in the office of the District Inspector of Schools

on 3.1.1997. The Manager of the institution requested the

District Inspector of Schools to accord financial approval of the

adhoc appointment made by the Committee of Management.

However, the District Inspector of Schools did not

communicate its decision regarding disapproval or approval of

the appointment made by the Committee within the stipulated

period. As no communication was received from the office of

the District Inspector of Schools, taking it to be a case of

deemed approval, formal letter of appointment was issued to

the petitioner on 15.1.1997 and he had joined his duty on

16.1.1997 as Assistant Teacher in L.T. Grade.

18.In this factual background, we may take note of the

communication dated 10.9.1999 appended as Annexure ‘11’ of

the writ petition (page ‘86’ of the paper book). The said letter

was issued from the office of the District Inspector of Schools,

Kushinagar and is addressed to the Manager of the institution

concerned. The said letter is in relation to the approval of

promotion of Shri Shambhu Sharan Singh from C.T. Grade to

L.T. Grade. This letter shows that Shri Shambhu Sharan Singh

was working in C.T. Grade and the proposal for his promotion

to L.T. Grade against 50% quota for promotion was made by

the Committee of Management on 2.12.1996.

19.This approval letter has been appended with the writ

petition and is relied by the petitioner to assert that the

observation in the order impugned that the approval was not

12

granted to the promotion of Shri Shambhu Sharan Singh was

incorrect. The order impugned is dated 30.7.2001 which records

that the appointment of the petitioner had been made in L.T.

Grade against the vacancy on account of promotion of Shri

Shambhu Sharan Singh in L.T. Grade on 1.12.1996, whereas no

approval of the promotion of Shri Shambhu Sharan Singh was

granted by the District Inspector of Schools. Resultantly, no

post became vacant.

20.In view of these facts, at the outset, it may be noted that

the petitioner claims that he was appointed in L.T. Grade after

promotion of Shri Shambhu Sharan Singh from C.T. Grade to

L.T. Grade.

21.Admittedly, C.T. Grade was a lower grade and in case, it

is accepted for a moment that the promotion of Shri Shambhu

Sharan Singh from C.T. Grade to L.T. Grade was approved by

the order dated 10.9.1999, which is appended as Annexure ‘11’

to the writ petition, vacancy, if any, would have arisen in C.T.

Grade and not in L.T. Grade. The appointment of the petitioner

could not be made in L.T. grade on account of promotion of the

said incumbent in L.T. grade.

Further, C.T. Grade was declared a dying cadre in

pursuance of the recommendations made by the Pay Revision

Committee, 1989 by the Government Order No.

3299/15.7.1989-1(136)/89 dated 11.8.1989 for the private

higher secondary schools. Further clarifications were issued on

4.9.1990 and by the Government Order dated 19.2.1991, C.T.

Grade was declared a dying cadre in government higher

secondary schools and Intermediate colleges. It was directed

13

that in future, no post in C.T. Grade shall be created, as the C.T.

Grade had been declared a dying cadre and further recruitment

in that grade was banned. By the Government Order dated

9.1.1992, it was declared that consequent to the C.T. Grade

being declared as dying cadre, all such C.T. Grade teachers,

who have completed ten years of satisfactory service and

subject to their being trained graduates, shall be merged as L.T.

Grade teachers. Meaning thereby that if a C.T. Grade teacher

had already completed ten years of satisfactory service, he

would be merged as L.T. Grade, and the cut-off date fixed was

1.1.1986. For those who did not complete ten years of

satisfactory service on 1.1.1986, it was directed that they would

be merged as Assistant Teacher (L.T. Grade) as soon as they

complete ten years of satisfactory service.

22.It seems from the order of the District Inspector of

Schools dated 10.9.1999 that the incumbent working in C.T.

Grade namely Shri Shambhu Sharan Singh was merged in L.T.

Grade against the post available in promotion quota. A further

perusal of the order impugned dated 3.7.2001 indicates that the

said proposal of promotion/merger of Shri Shambhu Sharan

Singh was approved.

23.Be that as it may, whether the promotion or merger of

Shri Shambhu Sharan Singh in L.T. Grade was approved or

disapproved, in both eventuality, no post in L.T. Grade became

vacant.

24.Meaning thereby that in case the promotion/merger of

Shri Shambhu Sharan Singh in L.T. Grade was not approved, he

14

would continue as C.T. Grade teacher till he would have

fulfilled the requirement of merger/promotion in L.T. Grade.

25.On the other side, in case his promotion/merger in C.T.

Grade was approved, there would occur no vacancy, the reason

being that the C.T. Grade was a dying cadre and further

recruitment in the said grade was banned. An incumbent

working in C.T. Grade at the time of the issuance of the

Government Order dated 19.2.1991 was entitled to be merged

in L.T. Grade on completion of two conditions, i.e. ten years of

satisfactory service on 1.1.1986 and possessing the qualification

of being a trained graduates. Those who did not complete ten

years of satisfactory service as on 1.1.1986 were merged later

as Assistant Teacher in L.T. Grade as soon as they completed

ten years of service and there occur vacancy in L.T. Grade in

promotion quota.

26.In view of the above, the statement in the order impugned

dated 3.7.2001 that there was no vacancy on account of

promotion of Shri Shambhu Sharan Singh is found to be

correct. Though the said order is not happily worded but the

crux of the matter is that there occur no vacancy in L.T. Grade,

against which the petitioner could have been appointed, terming

it as appointment against a short term vacancy.

27.In view of the above discussion, on the merits of the case,

the contention of the learned counsel for the petitioner that the

petitioner was appointed against a short term vacancy of L.T.

Grade after following due procedure under the Act is found

misconceived. As there was no vacancy, there was no occasion

for the Committee of Management to notify the same or to

15

make selection. The entire process of selection of the petitioner/

appellant as Assistant Teacher, L.T. Grade adopted by the

Committee of Management of the institution is absolutely

illegal. The appointment of the petitioner is held to be void ab

initio.

The writ petition is, accordingly, dismissed being devoid

of merits.

In the result, the appeal stands dismissed.

(Vikram D. Chauhan,J.) (Sunita Agarwal,J.)

Order date :- 26.9.2022

VMA/Brijesh