Rajesh Srivastava vs Committee Of Management D.M.U. Inter College Kanpur

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW A.F.R.
WRIT - A No. - 2856 of 2002
Rajesh Srivastava
.....Petitioner(s)
Versus
Committee Of Management D.M.U. Inter College
Kanpur
.....Respondent(s)
Counsel for Petitioner(s) : Pankaj Bajpai, Krishna Kumar Singh,
Manoj Kumar Pandey
Counsel for Respondent(s) : C.S.C.

Court No. - 4
HON'BLE IRSHAD ALI, J.
1. Heard Sri Pt. S. Chandra, learned counsel for the petitioners and Sri
Rajiv Srivastava, learned Additional CSC for the respondent - State.
2. In spite of notice issued to the Committee of Management, no-one has
responded to appear before this Court.
3. By means of present writ petition, the petitioners are challenging the
order dated 15.05.2002 contained as Annexure-22 passed by respondent
No.3 and Government Order dated 03.11.1997 issued by respondent No.2
contained as Annexure-23 to the writ petition with a further prayer to
issue writ of mandamus commanding the respondent Nos.2 to 5,
specifically respondent No.3 to accord approval to the posts and salary of
the petitioners w.e.f. 05.04.1998 and to pay the petitioners their salary
along with arrears of salary and to give assent to the salaries of the
petitioners deeming the appointments of the petitioners to be approved as
per provisions of Clauses 2(3)(iii) and 2(3)(iv) of the Removal of
Difficulties (Second) Order, 1981 and accord specific approval to ensure
salary of the petitioners on their respective posts treating them to be
continuing in service w.e.f. 05.04.1998 till date.
4. Factual matrix of the case is that the petitioners are adhoc LT Grade
Teachers of recognized and aided Inter College run by the Committee of
Management. All the petitioners are appointed before 25.01.1999 under

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the provision of Removal of Difficulties order, 1981 (II). The date of
appointment of petitioner No.1 - Rajesh Srivastava is 04.04.1998 as LT
Grade (Adhoc) on the short term post which occurred due to adhoc
promotion of Arvind Kumar Tripathi as Lecturer on 21.10.1997. The
petitioner No.2 - Shashi Kant Mishra got appointment on 04.04.1998 as
LT Grade (Adhoc) against the short term post which fell vacant also on
21.10.1997 due to adhoc promotion of Jawahar Krishna as a Lecturer.
Petitioner No.-2 Shashi Kant Mishra died during pendency of this writ
petition and his legal heirs did not turn up despite of repeated reminders.
Petitioner No.3- Lakhan Singh Chandel was appointed on 04.04.1998 as
LT Grade (Adhoc) on the short term post, which fell vacant on
06.03.1997 due to adhoc promotion of Sri K.N. Dwivedi as lecturer.
5. Petitioner Nos.1 and 3 are still working and getting salary in pursuant
to interim order dated 17.05.2002 passed in this case in countinuance with
order of approval dated 30.12.2003 issued by District Inspector of
Schools. All the petitioners possess more than 28 years of service
continuously as Assistant Teacher LT Grade (Adhoc). Till date the
Selection Board/Commission has not made regular selection against the
posts of the petitioners.
6. The petitioners are entitled for regularization w.e.f. 22.03.2016 under
the provision of Section 33-G of U.P. Secondary Education Services
Selection Board Act, 1982. All the petitioners were duly selected after
due advertisement and appointed on the post of LT Grade teacher on
Adhoc basis in D.M.U. Inter College, Govind Nagar, District Kanpur. The
committee of management sought approval from the DIOS, who refused
to give approval vide order dated 15.05.2002 on the pretext that there is
ban on the appointment and also there is no provision for adhoc
appointment.
7. The petitioners filed present writ petition challenging the impugned
G.O. dated 03.11.1997 (Annexure No.23, Page 107) and impugned order
dated 15.05.2002 passed by the DIOS (Annexure No. 22, Page 106).
8. Submission of learned counsel for the petitioner is that the G.O. dated
03.11.1997 is putting ban on adhoc appointment and not on against

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appointment made under Section 16E of Education Act, 1921. The
Selection Board Act, 1982, specifically Removal of Difficulties Order,
1981 (II) provides for selection and appointment against short term
vacancy. The Government Order dated 03.11.1997 putting ban on
appointment is illegal and not sustainable in the eyes of law because by
Government Order, the statutory provisions of Selection Board Act, 1982
neither can be suspended nor can be diluted in any manner, as law is
settled in Full Bench judgment of this Court in the case of Vijay Singh
, para 6 &
Vs. State of U.P. and others; 2005 (23) LCD 1696 FB ALLD
7.
9. He next submitted that the State Government subsequently withdrawn
the G.O. dated 03.11.1997 vide G.O. dated 03.04.1998, as such G.O.
dated 03.11.1997 deserves to be quashed. He submitted that the order
dated 15.05.2002 is unsustainable being unlawful and arbitrary because
Section 18 of Selection Board Act, 1982 was finally amended on
30.12.2000 and in this case, provision of Removal of Difficulties Order
(II), 1981 is attracted and short term appointment of the petitioners was
made under the provisions of Removal of Difficulties Order (II), 1981 as
short term posts were occured due to adhoc promotion on the post of
Lecturer, therefore, the impugned order dated 15.05.2002 has been passed
without considering the provisions of Removal of Difficulties Order (II),
1981 under which the management has power to make appointment under
Section 16-E of U.P. Intermediate Education Act, 1921 and subsequently
by adding Section 33-G of Selection Board Act, 1982 these appointments
were regularized w.e.f. 22.03.2016, as such the impugned order is not
sustainable in the eyes of law and is liable to be set aside.
10. On the other hand, learned Additional CSC invited attention of this
Court on the judgment rendered in the case of petitioners, which was filed
challenging the impugned order dated 15.05.2002, wherein writ petition
was disposed of by giving benefit of Section 33-G, as was provided in the
case of with a direction to the Regional Level
Vinod Kumar Srivastava
Committee to consider the case of the petitioners with a direction that in
case salary is being paid to the petitioners, it shall be paid to them till their
claim is decided by the Regional Level Committee. The Chairman - Joint
Director of Education kept the matter pending due to pendency of the

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present writ petition before this Court and did not pass any order till date.
11. He next submitted that the impugned order does not suffer from any
infirmity or illegality and the ban imposed vide Government Order dated
03.11.1997, which is valid and wants no interference by this Court.
12. In rebuttal, learned counsel for the petitioner placed the Government
Order dated 09.03.1998, whereby the ban on adhoc appointment under
Section 18 was lifted and was permitted to make appointment. The same
will be placed on record of the present writ petition.
13. I have considered the submissions advanced by learned counsel for
the parties and perused the material on record as well as law report cited
by learned counsel for the petitioner.
14. To resolve the controversy involved in the matter, relevant portion of
the judgment relied upon by learned counsel for the petitioner is being
quoted below:

Vijay Singh (Supra):
"6. It is settled legal proposition that executive instructions cannot override the
statutory provisions [Vide B.N. Nagrajan v. State of Mysore, AIR 1966 SC 1942; Sant
Ram Sharma v. State of Rajasthan and Ors., AIR 1967 SC 1910; Union of India and
Ors. v. Majji Jangammyya and Ors., AIR 1977 SC 757; B.N. Nagarajan and Ors. v.
State of Karnataka and Ors., AIR 1979 SC 1676; P.D. Agrawal and Ors. v. State of
U.P. and Ors., (1987) 3 SCC 622; M/s. Beopar Sahayak (P) Ltd. and Ors. v. Vishwa
Nath and Ors., AIR 1987 SC 2111; State of Maharashtra v. Jagannath Achyut
Karandikar, AIR 1989 SC 1133; Paluru Ramkrishananiah and Ors. v. Union of India
and Ors., AIR 1990 SC 166; Comptroller and Auditor General of India and Ors. v.
Mohan LalMalhotra and Ors., AIR.1991 SC 2288; State of Madhya Pradesh v. G.S.
Dall and Flour Mills, AIR 1991 SC 772; Naga People's Movement of Human Rights v.
Union of India and Ors., AIR 1998 SC 431; C. Rangaswamaeah and Ors. v.
Karnataka Lokayukta and Ors., AIR 1998 SC 96.]

7. Executive instructions cannot amend or supersede the statutory rules or add
something therein, nor the orders be issued in contravention of the statutory rules for
the reason that an administrative instruction is not a statutory Rule nor does it have

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any force of law; while statutory rules have full force of law provided the same are not
in conflict with the provisions of the Act. (Vide State of U. P. and Ors. v. Babu Ram
Upadhyaya, AIR 1961 SC 751; and State of Tamil Nadu v. M/s. Hind Stone etc., AIR
1981 SC 711)."
15. On perusal of Government Order dated 09.03.1997, it is crystal clear
that ban was imposed on ad hoc appointment under Section 18 of U.P.
Secondary Education Services Selection Board Act, 1982. There was no
ban against short term appointment made under Removal of Difficulties
Order (II), 1981 as well as the appointment against short term vacancy
was also permitted in view of provisions contained under Section 16-E of
U.P. Intermediate Education Act, 1921, therefore, the Government Order,
which was lifted ban vide Government Order dated 09.03.1998 has no
efficacy in law in regard to appointment made under Removal of
Difficulties Order (II), 1981 against short term vacancy arising in the
institution, therefore, the impugned Government Order has no existence
in regard to appointment made under Removal of Difficulties Order (II),
1981.
16. In the impugned order, objection has been taken that there is a ban on
appointment made under Section 18 of U.P. Secondary Education
Services Selection Board Act, 1982.
17. On perusal of Government Order as well as impugned order, it is
apparent on the face of record that ban was imposed on adhoc
appointments made under Section 18 of the Act of 1982. There was no
ban imposed on appointments made against short term vacancies under
the provisions of Removal of Difficulties Order (II), 1981, therefore, the
impugned order is not sustainable in the eyes of law and is liable to be set
aside.
18. The impugned order dated 15.05.2002 is also not sustainable in the
eyes of law on the ground that without perusal of contents of Government
Order dated 03.11.1997, which was imposing ban on appointments made
under Section 18 of Act of 1982, the impugned order was passed.
19. The respondents have also failed to consider that short term
appointments have always been permitted to continue till regularly

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selected candidate comes and joins, therefore, the impugned order suffers
from apparent illegality and is liable to be set aside.
20. The claim of the petitioners in view of provisions contained under
Section 33-G of Selection Board Act, 1982 which came into existence
w.e.f. 22.03.2016 is liable to be considered for regularization w.e.f.
22.03.2016, as the petitioners have continuously discharged duties on
their respective posts.
21. In view of reasons recorded above and facts and circumstances of the
case, this Court is of the considered opinion that the government order
does not apply to the appointments made against short term vacancy
under Removal of Difficulties Order (II), 1981 and based on Government
Order dated 03.11.1997, the order of DIOS dated 15.05.2002 is also not
sustainable in the eyes of law.
22. In view of above, the impugned order dated 15.05.2002 is hereby
quashed.
23. The writ petition succeeds and is allowed.
24. However, the Regional Level Committee is directed to consider the
claim of the petitioners for regularization under Section 33-G of the Act
of 1982 w.e.f. 22.03.2016, as directed by this Court in Writ-A No.6558 of
2024.
25. In the meantime, the petitioners shall be paid salary month by month
on the post of Assistant Teachers LT Grade.
26. The Government Order dated 03.11.1997 was lifted vide Government
Order dated 09.03.1998, therefore, it has lost its efficacy.
(Irshad Ali,J.)
May 7, 2026
Adarsh K Singh
Digitally signed by :-
ADARSH KUMAR SINGH
High Court of Judicature at Allahabad,
Lucknow Bench