STATE OF UP AND ANOTHERversusRAM KEWAL AND 8 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           SPECIAL APPEAL DEFECTIVE No. - 660 of 2025

State Of Up And Another
                                                                 .....Appellant(s)
                                    Versus
Ram Kewal And 8 Others
                                                             .....Respondent(s)

Counsel for Appellant(s)                 :   Abhishek Srivastava, S.C.
Counsel for Respondent(s)                :   Sankalp Narain

.




Court No. - 3

              HON'BLE SAUMITRA DAYAL SINGH, J.
              HON'BLE SWARUPAMA CHATURVEDI, J.

(Civil Misc. Delay Condonation Application No. 01 of 2025)

1. Heard learned Standing Counsel for the State, Shri G.K. Singh, learned
Senior Advocate assisted by Shri Rishabh Narayan Singh, learned counsel
for the original petitioner/ respondent.

2. Cause shown is sufficient.

3. Delay in filing the present intra-Court appeal is condoned.

4. Delay Condonation Application is allowed.

(Order on Appeal)

5. The present intra-Court appeal has arisen against the order of the learned
single judge dated 22.05.2025 in Ram Kewal and 8 others vs. State of U.P.
and 2 others, 2025:AHC:86311.
6. Submission is, the order of learned single judge suffers from an error on
principle, inasmuch as there exist no document evidencing creation of post
in 1986 and further there is no evidence on record with respect to publication
of advertisement dated 17.01.1996 and conduct of selection on the post of
Assistant Teacher at Bargahpur Lehra, in accordance with law. To the
extent, the entire selection is described to be contrary to the law, it has been
submitted that no relief has been granted by the writ court.
7. Further submission has been advanced that the finding recorded in the
order dated 21.06.2019 passed by the District Basic Education Officer,
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Mahrajganj, looking at the correct facts, the writ court has erred in granting
the discretionary relief to the original petitioner-respondent.
8. On the other side, learned Senior Counsel for the original petitioner-
respondent would submit, the issues being raised by the District Basic
Education Officer, were raised in the earlier writ petition no. 52280 of 2000
which was disposed of on 11.12.2000. That has attained finality.
9. Reliance has been placed on the order dated 20.11.2018 in Writ-A No.
74452 of 2002, Krishna Kumar Tripathi and others vs. District Jila Basic
Siksha Adhikari and others, 2018:AHC:185478. Thus, it has been stressed
the issue being now raised had been raised in that petition as well. It was
negated. No challenge was raised thereto. Therefore, it does not survive for
any further consideration if the sanctioned post existed or if there was any
invalidity in the advertisement or the selection process.
10. Having heard learned counsel for the parties and perused the record.

11. The case has a checkered history. First, by order dated 24.10.2000 the
salary payment of the original petitioners were stopped on a doubt about the
genuineness/ existence of the order creating posts. At that stage, the
petitioners had approached the writ Court by means of Civil Misc. Writ
Petition No.52280 of 2000. Vide order dated 11.12.2000 the said writ
petition was disposed of with the following directions :

     "This petition is finally disposed of with a direction to the District Basic Shiksha Adhikari,
     Mahrajganj that he may hold an enquiry in pursuance of the order dated 24.10.2000
     passed by the Additional Director of Education (Basic), VIIth Region, Gorakhpur after
     giving an opportunity of hearing to the petitioners and the Committee of Management of
     the institution. He shall hand over a copy of the enquiry report to the petitioners and
     thereafter he can stop payment of salary to the petitioner. He shall pass a speaking order,
     in accordance with law after the enquiry and he shall serve a copy of the order to the
     petitioners. The enquiry shall be concluded by the District Basic Education Officer within
     a period of three months from the date a certified copy of this order is produced before
     him. "


12. While giving effect to that order, vide his order dated 5.11.2001, the
Basic Shiksha Adhikari, reached a conclusion that the order dated
27.09.1990 (wrongly described as 27.08.1998) was bogus.

13. Petitioners filed the second set of writ petitions being Writ A No.7445 of
2002 (by Krishna Kumar Tripathi & Others), Writ A No.34571 of 2002 (by
Ram Kewal & Another) and Writ A No.39167 of 2001 (by Shailesh Prasad
Mishra & Others). Those writ petitions came to be decided primarily by
order dated 20.11.2018 passed in Writ A No.7445 of 2002, Krishna Kumar
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Tripathi & Others v. Zila Basic Shiksha Adhikari & Others. Relevant to the
present it was observed as below :

     "4. It is in pursuance of the aforesaid direction that the impugned order came to be passed.
     By that order the Basic Shiksha Adhikari has found that the approval order dated
     27.09.1990 (wrongly mentioned as 27.08.1998) was a forged document. Other than that no
     other reason has been mentioned.


     .......


     7. In the supplementary rejoinder affidavit filed to the aforesaid supplementary counter
     affidavit it has been disclosed that with respect to another institution similar controversy
     had arisen on account of the same two pages of the dispatch register being missing. In that
     case Writ-A No.6581 of 2015 Chakravarti Prasad & 2 Ors. Vs. State of U.P. & 5 Ors
     decided on 03.12.2015 had been disposed of requiring the District Basic Education
     Officer, Maharajganj to take a final decision in the matter. It is further stated that in
     compliance of the aforesaid direction the Basic Education Officer, Maharajganj has by his
     order dated 07.04.2016 decided the controversy in favour of that petitioner after taking
     note of the missing pages of the dispatch register.


     .....


     9. Learned Additional Advocate General on the other hand submits that in the first place
     the order dated 27.09.1990 was a forged document and, therefore, no rights would arise
     there from. Then it has been submitted, no proper or valid exercise had been carried out by
     the Committee of Management while making the appointments of the petitioners in the year
     1996. It has thus been submitted, even otherwise the appointment of the petitioners were
     wholly illegal. Third, it has been submitted relying on Section 9(2) of the U.P. Junior High
     School Act, 1972 even if any approval may have been granted in the year 1986, in view of
     the fact that the petitioners were first appointed ten years thereafter in 1996 their
     appointment would remain illegal since the approval granted on 24.05.1986 lapsed on
     23.08.1986, by operation of law.


     ......


     11. Having considered the arguments so advanced by the learned counsel for the
     petitioners that in the first place the petitioners having given up their faith in the order
     dated 27.09.1990, the objection of the State passed on that order plainly does not arise. As
     to the second objection of lapse of advertisement, it is too late in the day for the State to
     raise that controversy inasmuch as the appointments are claimed to have been made in the
     year 1996 and State did not raise any objection upto the stage of filing of the earlier writ
     petition which was disposed of by an order dated 11.12.2000. In the first place the
     controversy had arisen only as to whether there existed sanctioned post. Upon a complaint
     made to the Additional Director of Education the salary payment of the petitioners had
     been stopped. Therefore, the very nature of the objection was precise as to lack of
                                                                          SPLAD No. 660 of 2025
                                      4

sanctioned post and not of any other infirmity. Then, even in the proceedings conducted in
pursuance of the earlier order of this Court dated 11.12.2000, no objection whatsoever
arose as to lack of advertisement. That being the case, merely because the petitioner had
not accepted the order dated 05.11.2001 and had chosen to challenge the same in the
present proceedings, the State cannot be allowed to take new stand only to defeat the relief
being sought by the petitioners.


.....


13. As to the third aspect pertaining to existence of sanctioned posts, it is an admitted case
between the parties that the Basic Shiksha Adhikari has yet not recorded a finding to that
effect with reference to the order dated 24.05.1986. The facts with regard to issuance of
the order dated 24.05.1986 would remain a matter to be considered by the Basic Shiksha
Adhikari keeping in mind all relevant facts including the fact that he had already
conducted a similar inquiry in another case pursuant to the case of Chakravarti Prasad &
2 Ors pursuant to the directions issued in Writ-A No.6581 of 2015 decided on 03.12.2015.
However, that is not to say, that the claim so made must necessarily be accepted but that
the decision may be made upon due application of mind taking all relevant facts and
circumstances of the case into account.


14. Accordingly, the impugned order dated 05.11.2001 is set aside and the matter is
remitted to the Basic Shiksha Adhikari, Maharajganj to pass a proper order in accordance
with law with the following directions:-


(i) Petitioners shall file a fresh representation before the District Basic Shiksha Adhikari,
Maharajganj within a period of three weeks from today alongwith the certified copy of this
order.


(ii) Upon receipt of such representation the District Basic Shiksha Adhikari, Maharajganj
may proceed to consider the same.


(iii) In the event he is inclined to dismiss the representation, prior notice to the petitioners
as also the Committee of Management of the institution, be issued within further period of
two months from such representation being filed, indicating the reasons on which such
representation is proposed to be rejected.


(iv) Upon receipt of notice, if any, from the District Basic Shiksha Adhikari, Maharajganj
one opportunity be granted to the petitioner to submit their final reply within a period of
two weeks from the date of receipt of the reply.


(v) Upon receipt of such reply, if any, the District Basic Shiksha Adhikari, Maharajganj
shall proceed to decide the representation made by the petitioners by a reasoned and
speaking order as expeditiously as possible in accordance with law within five months
from date of filing of the representation."


                                                                          (emphasis supplied)
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                                5

14. On specific query, it has been informed that the said order has attained
finality. No challenge was ever raised by the State to that order.

15. Thus, it appears that in the first place a limited dispute survived for
consideration by the District Basic Shiksha Adhikari- upon decision of the
second set of writ petitions vide orders dated 20.11.2018 passed by this
Court. That dispute was confined to creation/ sanction of posts. Even in that
regard, the exercise of jurisdiction was limited inasmuch as the District
Basic Shiksha Adhikari was required to consider to examine the claim of the
petitioner in light of the order passed by the said authority dated 07.04.2016
passed by the District Basic Shiksha Adhikari in the case of Chakrawarti
Prasad And 2 Others. Examination of that order clearly reveals that
occasioned by the fact that two pages of relevant Dispatch Register
(recording dispatch against entry numbers 693 to 779), lost, the District
Basic Shiksha Adhikari recorded a finding in favour of Chakrawarti Prasad
and others- recognizing as genuine, the order sanctioning their posts. It is
also undenied that the dispatch number of the order dated 24.05.1986
claimed by the original petitioners/appellants, in this case, was 749. Thus, it
cannot be denied that the facts found by the District Basic Shiksha Adhikari
in case of Chakrawarti Prasad And 2 Others, had a material bearing and that
order was relevant to the case of the present original petitioners/respondents,
as well.

16. Without recording any reason and in absence of any other or further
evidence having come to the hands of District Basic Shiksha Adhikari, a
conflicted conclusion has been drawn, in the identical facts of the present
original petitioner/respondents. Thus, for reason of absence of two pages of
the Dispatch Register, and without any other evidence, the order dated
24.05.1986 has been found to be not genuine.

17. Though, the order of the District Basic Shiksha Adhikari passed in case
of Chakrawarti Prasad And 2 Others may not lay down any precedent in law,
at the same time, as a fact finding authority, it may not have taken another
view of the same facts and evidence without any distinguishing feature or
evidence existing on record. If such conflicted orders passed by the quasi
judicial authorities are sustained, it may itself amount to arbitrary action on
the part of the State authorities.

18. In the first place, all actions of the State authorities especially, with
respect to quasi judicial functioning may remain informed with reason. Also,
once a reason stand is taken and it attains finality, consistency of that
reasoning may be allowed to be maintained- to bring more transparency and
credibility in their functioning. Unless facts or evidence show otherwise,
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                                               6

conflicted conclusions may not be allowed to stand, as may give rise to
allegations to pick and choose.

19. Here, suffice to note that it is not the case of the State respondents that
the order passed in case of Chakrawarti Prasad And 2 Others has been
modified or altered or revoked. Seen in that context, the conflicted order
passed in the present case, may not allowed to stand.

20. As to the further alternative objection raised by the State that the post
may not have survived beyond three months from the date of its creation,
that issue may not be open to be raised in view of the order of limited
remand made by the writ Court in the second set of the petitions filed by the
original petitioner, which was decided by the order dated 20.11.2018
(extracted above).

21. In any case, we have perused the post sanction order. It reads as below:-

     "निम्नांकित विवरण के अनुसार अस्थाई/स्थाई असहायिक/सहायिक पूर्व माध्यमिक विद्यालयों में उनके नाम के
     सम्मुख अंकित शिक्षण/शिक्षणेत्तर कर्मचारियों के पद/पदों के सृजन की स्वीकृति पद सृजन के आदेश को तिथि या
     नियमानुसार नियुक्ति तिथि या पदोन्नति की तिथि जो भी बाद का हो प्रदान की जाती है।"


                                                                                        (emphasis supplied)


22. Once the doubt being expressed about the genuineness of the aforesaid
order had been laid to rest, the objection raised that the order had lapsed
after three months by virtue of Rule 9(2) of the U.P. Junior High School
(Payment of Salaries of Teachers and other Employees) Act, 1978 may not
survive for further consideration, at this belated stage. While the State may
be permitted to raise that issue in appropriate facts where such question may
arise at the relevant time i.e. in the first challenge proceedings, here that
issue may not be raised belatedly as originally, financial approval (to the
appointment of the original petitioners/appellants) was granted, salary
payments were made for almost four years. Upon being interrupted, those
were resumed under the orders of the Court. Almost three decades passed.
At that stage, the order of limited remand was made to consider the
similarity of facts of Chakrawarti Prasad And 2 Others, on the issue of
genuineness of the order dated 24.05.1986 creating/sanctioning the post.

23. To the extent, issue has remained festering a wound suffered for almost
three decades, it is expected that the consequential orders and payments
would be made within a period of three months, failing which, due amount
shall carry interest @ 6% from the date of same being becoming due till the
date of actual payment.

24. The appeal lacks merit and is accordingly dismissed in the peculiar facts
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                                                                   7

                                    noticed above. As to the legal issue based on the strength of section 9(2) of
                                    the U.P. Junior High School (Payment of Salaries of Teachers and other
                                    Employees) Act, 1978, that issue is left open to be dealt with in appropriate
                                    case.



                                    April 23, 2026
                                    Bhanu/ Shiv/
                                    #Vikram/-      (Swarupama Chaturvedi,J.) (Saumitra Dayal Singh,J.)




Digitally signed by :-
SHIV KUMAR SHARMA
High Court of Judicature at Allahabad