ANIL KUMAR CHAUDHARYversusTHE ZILA BASIC SHIKSHA ADHIKARI GORAKHPUR AND OTHERS

                                                                        A.F.R.
                                                      Delivered On: 14.09.2026

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                        WRIT - A No. - 5628 of 1989

Anil Kumar Chaudhary
                                                             .....Petitioner(s)
                                  Versus

The Zila Basic Shiksha Adhikari Gorakhpur And
Others                                                     .....Respondent(s)

Counsel for Petitioner(s)                                              :
Counsel for Respondent(s)                                              :

Court No. - 52
             HON'BLE MRS. MANJU RANI CHAUHAN, J.

1. Heard Mr. Kamlesh Kumar Tripathi and Mr. Ashutosh Tiwari, learned
counsel for the petitioner as well as Mr. L.M. Singh, learned Standing
Counsel for the State.

2. The petitioner has sought quashing of the advertisement published in
the Hindi daily newspaper “Aaj” (Gorakhpur Edition) dated 1.02.1989, as
well as the order dated 31.12.1988 passed by respondent no. 1. The
petitioner has further sought a direction to the respondents to pay him
salary as Assistant Teacher with effect from his appointment on 16/18.05.
1988, along with regular and continuous monthly salary thereafter. The
reliefs were amended by order of this Court dated 31.07.2013.

3. Placing the brief facts of the case, learned counsel for the petitioner
submits that a post of C.T. Grade Teacher in Kanhaiya Junior High
School, Shahpur, Geeta Batika, District Gorakhpur (hereinafter referred to
as the “Institution”), was created by the Assistant Director of Education,
Seventh Region, Gorakhpur, vide letter dated 14.01.1988 addressed to the
District Basic Education Officer, Gorakhpur.

4. Pursuant thereto, the Manager of the Institution advertised the said post
and invited applications from eligible candidates through a publication in
the Hindi daily newspaper “Aaj” dated 19.04.1988. In response thereto,
eight candidates, including the petitioner, were called for interview before
                                                        WRIA No. 5628 of 1989
                               2


the Selection Committee constituted by the Management of the
Institution. The Selection Committee comprised the Manager, the
Headmaster of the Institution and the nominee of the District Basic
Education Officer, namely, Prem Narayan Pandey.

5. After the candidates were interviewed, the petitioner, having secured
the highest marks, was selected by the Selection Committee.
Consequently, the Manager of the Institution issued an appointment letter
in favour of the petitioner on 16.05.1988. Upon receipt thereof, the
petitioner submitted his joining report to the Manager on 17.05.1988 and
joined the Institution on 18.05.1988.

6. It is further submitted that the Manager thereafter forwarded to the
District Basic Education Officer, Gorakhpur, the list of candidates who
had appeared in the selection process. However, respondent no. 1,
namely, the District Basic Education Officer, Gorakhpur, neither
communicated any approval nor expressed any disapproval with regard to
the recommendation of the Selection Committee or the appointment of the
petitioner by the Manager of the Institution.

7. Learned counsel for the petitioner submits that, in terms of Rule 10(5)(
iii) of the Uttar Pradesh Recognized Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of Teachers) Rules, 1978
(hereinafter referred to as the “Rules of 1978”), the approval of the
concerned District Basic Education Officer to the petitioner's appointment
was liable to be deemed to have been accorded upon expiry of the
prescribed period, namely, on 20.06.1988. Consequently, the petitioner
claims to have acquired the status of a duly appointed Assistant Teacher
of the Institution with effect from the said date.

8. It is, however, contended that, for reasons not disclosed by the
respondents, the petitioner was not paid salary from the date of his joining
the Institution, i.e., 18.05.1988, or, in the alternative, from the date on
which approval of his appointment was claimed to be deemed to have
been accorded i.e. on 20.06.1988. The petitioner submitted a detailed
representation to the Manager of the Institution on 3/4.07.1988 seeking
payment of his salary and thereafter made repeated representations before
the Manager as well as respondent no. 1. Despite the aforesaid
                                                        WRIA No. 5628 of 1989
                               3


representations, no effective action was taken for release of the
petitioner's salary.

9. Learned counsel for the petitioner further submits that the petitioner
subsequently came to know from respondent no. 2, namely, the
Committee of Management of the Institution, that the very same post
against which the petitioner had been appointed as Assistant Teacher was
re-advertised in the Hindi daily newspaper “Aaj” dated 01.02.1989,
inviting applications from eligible candidates. The advertisement
specifically indicated that the post was reserved for a candidate belonging
to the Scheduled Caste category. The interview was initially scheduled to
be held on 19.02.1989, which was subsequently postponed to 12.03.1989.

10. It is vehemently contended that the re-advertisement of the post
against which the petitioner had already been appointed vide appointment
letter dated 16.05.1988 is ex facie illegal, arbitrary and void, there being
no subsisting vacancy against the said post. The petitioner continued to
discharge his duties as Assistant Teacher pursuant to the aforesaid
appointment and, admittedly, no order terminating or otherwise bringing
his appointment to an end had been passed by any competent authority.

11. Learned counsel for the petititoner further submits that, after the
Manager of the Institution had forwarded the requisite papers and the list
of candidates to the District Basic Education Officer, Gorakhpur, for
approval of the petitioner's appointment, no order either granting or
refusing approval was communicated to the petitioner within the period
prescribed under the applicable statutory provisions. Consequently, by
virtue of the deeming provision contained in Clause 3 of Sub-Rule (5) of
Rule 10 of the Rules of 1978, the petitioner's appointment stood deemed
to have been approved upon expiry of the prescribed period of thirty days
and he acquired the status of a duly appointed Assistant Teacher of the
Institution.

12. It is, therefore, urged that, even on this count, no vacancy existed
against the post in question on the date of its re-advertisement and the
respondents had no lawful authority or jurisdiction to re-advertise the said
post, much less to earmark it for a candidate belonging to the Scheduled
Caste category.
                                                        WRIA No. 5628 of 1989
                               4


13. Learned counsel for the petitioner further submits that it was only
upon filing of the counter-affidavit on behalf of the District Basic
Education Officer, Gorakhpur, that the petitioner came to know, for the
first time, of the order dated 31.12.1988 passed by respondent no. 1,
whereby the petitioner's appointment as Assistant Teacher of the
Institution had been disapproved. The petitioner, therefore, sought
amendment of the prayer clause to specifically challenge the said order,
which was accordingly incorporated in the writ petition pursuant to the
order of this Court.

14. Learned counsel for the petitioner submits that the order dated
31.12.1988 was passed by respondent no. 1 without affording the
petitioner any opportunity of hearing, although the said order directly
prejudiced his subsisting appointment. The impugned order is, therefore,
assailed as being in flagrant violation of the principles of natural justice
and liable to be set aside on this ground alone.

15. It is further submitted that the petitioner was selected by a duly
constituted Selection Committee, which included the nominee of
respondent no. 1 himself. Having participated in and acquiesced in the
selection process through its duly nominated representative, the
respondents cannot subsequently question the validity of the petitioner's
selection and appointment without following due process of law. In any
event, before disapproving the petitioner's appointment, respondent no. 1
was under an obligation to afford him a reasonable opportunity of
hearing.

16. Learned counsel for the petitioner further contends that the order
dated 31.12.1988 was admittedly passed beyond the statutory period of
thirty days prescribed under Rule 10 of the Rules of 1978. Consequently,
in view of the deeming provision contained therein, the petitioner's
appointment stood automatically approved upon expiry of the prescribed
period and the subsequent order of disapproval was without jurisdiction
and legally unsustainable.

17. It is lastly submitted that there is no provision under the applicable
statutory rules mandating reservation of a post of Assistant Teacher in an
aided Junior High School for a candidate belonging to the Scheduled
                                                         WRIA No. 5628 of 1989
                                5


Caste category. The subsequent re-advertisement of the post by treating it
as reserved for a Scheduled Caste candidate is, therefore, contended to be
wholly without statutory authority.

18. Learned counsel for the petitioner further contends that the post in
question had already been duly filled by the management pursuant to the
selection process. Notwithstanding the same, the management
subsequently re-advertised the very same post vide advertisement dated
01.02.1989, treating it as a post reserved for a Scheduled Caste candidate,
although, according to the record, the posts falling within the reserved
categories of Scheduled Caste and Scheduled Tribe had also already been
duly filled by the Management.

19. It is submitted that against the substantive post, the petitioner, namely,
Anil Kumar Chaudhary, qualified at the first position, while Hari Om was
placed at second and Shrimati Pushpalata Pandey secured the third
position and the petitioner was duly selected on the aforesaid advertised
post in the Institution. In these circumstances, once the posts had already
been filled pursuant to a duly conducted selection process, there remained
no vacancy warranting a fresh advertisement.

20. Learned counsel for the petitioner, therefore, submits that the
subsequent re-advertisement dated 01.02.1989 in respect of the very post,
against which the petitioner was already selected and functioning as
Assistant Teacher, was wholly unwarranted, without jurisdiction and
legally unsustainable. The respondents could not, by merely re-
advertising an already filled post and subsequently earmarking it for a
Scheduled Caste candidate, create a vacancy where none existed in law.

21. Learned counsel for the petitioner has placed reliance upon the
judgment of the Hon’ble Supreme Court in State of Punjab and Others
v. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, and
submits that the Hon’ble Apex Court has carved out specific categories of
cases in which recovery of excess payment is impermissible, particularly
where such recovery is sought to be effected from a retired employee.

22. Learned counsel for the petitioner submits that, subsequent to the
petitioner's retirement, the Manager of the Institution issued a
                                                        WRIA No. 5628 of 1989
                               6


communication addressed to the petitioner. The said communication has
been placed on record along with the written submissions filed on behalf
of the petitioner and is relied upon in support of his case.

23. Learned Standing Counsel for the State on the other hand submits that
the petitioner continued to discharge his duties as Assistant Teacher and
remained in service until attaining the age of superannuation, solely by
virtue of the interim order passed by this Court. It is, therefore, contended
that the petitioner has no vested right to claim any retiral or post-
retirement benefits which have not been sanctioned in accordance with
the applicable rules.

24. In the counter-affidavit filed on behalf of the District Basic Education
Officer, Gorakhpur, it has been stated that the writ petition has been
instituted by concealing material facts, allegedly with the intention of
obtaining an order for payment of salary. It is further stated that, in the
circumstances, an order dated 14.03.1989 came to be passed.

25. It has been averred that one post of C.T. Grade Teacher, carrying the
pay scale of Rs. 450–720, was sanctioned by the Assistant Director of
Education (Basic), Seventh Region, Gorakhpur, vide letter dated
14.01.1988. In paragraph 7 of the said sanction letter, it was specifically
stipulated that the reservation applicable to candidates belonging to the
Scheduled Caste category was to be strictly adhered to, in accordance
with the instructions issued by the State Government.

26. Accordingly, permission to advertise the post was granted by the
office of the District Basic Education Officer vide letter dated 02.03.1988.
However, according to the respondents, the Committee of Management
acted in disregard of the aforesaid direction and published an
advertisement without indicating the reservation applicable to the
Scheduled Caste category, as is evident from the relevant record dated
21.03.1988.

27. It is further stated that, since the instructions contained in the letter
dated 02.03.1988 had not been complied with and the nominee of the
District Basic Education Officer was not deputed for the selection
process. The Committee of Management was instead directed, vide office
                                                        WRIA No. 5628 of 1989
                               7


letter dated 30.04.1988, to re-advertise the post afresh, in accordance with
the conditions stipulated in the earlier communication dated 02.03.1988.

28. Pursuant thereto, the Institution published a fresh advertisement in the
newspaper on 19.04.1988, indicating that preference was to be accorded
to a candidate belonging to the Scheduled Caste category, in accordance
with the reservation policy. It was further stipulated that in the event of
non-availability of a suitable Scheduled Caste candidate, the post could be
filled by a candidate from the general category possessing Science and
Mathematics as subjects.

29. Thereafter, the Committee of Management, vide its letter dated
02.05.1988, requested the District Basic Education Officer to nominate a
representative for the purpose of conducting the selection. Upon scrutiny
of the matter, the office of the concerned District Basic Education Officer,
vide communication dated 10.05.1988, called upon the Committee of
Management to explain the basis and authority under which the
conditional advertisement had been issued.

30. It has been further stated in the counter-affidavit filed by respondent
no. 1, the District Basic Education Officer, Gorakhpur, that the
Committee of Management, vide its letter dated 11.05.1988,
acknowledged that the error in the advertisement had occurred on account
of lack of proper knowledge of the applicable reservation provisions.
Thereafter, the nominee of the District Basic Education Officer was
deputed for participating in the selection process vide office letter dated
11.05.1988.

31. It is averred that, despite the aforesaid reservation requirement, the
Selection Committee proceeded to select a candidate belonging to the
general category, ignoring the Scheduled Caste reservation, although two
Scheduled Caste candidates, namely, Hari Om and Ram Priti, were
available and had appeared before the Selection Committee.

32. The papers relating to the selection were thereafter forwarded by the
Institution to respondent no. 1. It is stated that, upon scrutiny of the said
papers, certain queries were raised by respondent no. 1 vide letter dated
31.05.1988. The Committee of Management submitted its reply vide letter
                                                      WRIA No. 5628 of 1989
                              8


dated 06.06.1988, which was received in the office of the District Basic
Education Officer on 08.06.1988.

33. Upon consideration of the material placed on record, respondent no. 1
formed the view that the reservation applicable to Scheduled Caste
candidates had not been duly implemented in the Institution and that
eligible Scheduled Caste candidates, though available, had not been
considered in the selection process. Consequently, the proposal for
approval of the selection was not accepted. The entire set of papers
relating to the proposed appointment was returned to the Committee of
Management vide communication dated 07.07.1988, informing that
approval could not be accorded to the selection in question. The said
communication was also forwarded to the Institution on the same date.

34. It has been further stated by respondent no. 1, the District Basic
Education Officer, Gorakhpur, that, instead of making a fresh selection in
accordance with the advertisement dated 19.04.1988 and from amongst
the eligible Scheduled Caste candidates, the Committee of Management
proceeded to submit a proposal dated 11.05.1988 seeking approval of the
selection already made by altering the conditions stipulated in the
advertisement. According to the respondents, the Committee of
Management had no authority to unilaterally alter the terms of the
advertisement or to depart from the reservation requirement prescribed by
the competent authority.

35. In view of the aforesaid circumstances, and for the reasons recorded
by respondent no. 1, the complete papers relating to the proposed
selection were again returned to the Committee of Management vide
communication dated 20.08.1988. It is further averred that, despite the
aforesaid communication, the Committee of Management did not proceed
to make the selection, in accordance with the prescribed reservation
policy and instead proposed the ad-hoc appointment of the petitioner, who
is a general category candidate.

36. The said proposal was rejected by respondent no. 1 vide order dated
31.12.1988 on the ground that the post in question was reserved for a
Scheduled Caste candidate and that the petitioner's appointment against
the said post could not be made without obtaining prior written approval
                                                         WRIA No. 5628 of 1989
                                9


of the concerned District Basic Education Officer.

37. It is further stated that, notwithstanding the aforesaid disapproval, the
Committee of Management again proceeded to re-advertise the post on
01.02.1989. According to respondent no. 1, the petitioner had been
appointed by the Committee of Management without obtaining the
requisite prior written approval of the District Basic Education Officer
and, therefore, such appointment could not confer any enforceable right
upon the petitioner to claim salary or other consequential benefits from
the State authorities.

38. On these premises, respondent no. 1 submits that the petitioner's
appointment was contrary to the prescribed procedure and reservation
policy and was made without the mandatory approval of the competent
authority. Consequently, the petitioner is not entitled to any relief from
this Court.

39. It is further submitted on behalf of the respondents that the petitioner's
appointment was made in breach of the procedure prescribed under the
Rules of 1978 and, consequently, no enforceable right accrued in his
favour to claim any relief from this Court.

40. Learned Standing Counsel for the State submits that upon receipt of
the papers relating to the petitioner's appointment for approval, the
District Basic Education Officer had raised specific queries with regard to
the irregularities and deficiencies in the selection process. The Committee
of Management furnished its reply thereto. Thus, both the petitioner and
the Committee of Management were aware of the objections raised by the
competent authority and of the fact that the selection had not been
conducted in conformity with the applicable rules.

41. It is further contended that the advertisement pursuant to which the
petitioner was selected did not incorporate the mandatory reservation
condition, notwithstanding the specific directions issued by the competent
authority. The petitioner's appointment was, therefore, made on an ad-hoc
basis, against a post reserved for a Scheduled Caste candidate and the
proposal for approval of such appointment was expressly declined by the
District Basic Education Officer.
                                                          WRIA No. 5628 of 1989
                                10


42. In these circumstances, the petitioner's appointment, having been
made contrary to the prescribed statutory procedure and without the
requisite approval of the competent authority, cannot be treated as a
lawful appointment. The petitioner, therefore, has no vested or
enforceable right to claim salary or any other consequential benefit on the
strength of such appointment and is not entitled to the reliefs sought in the
writ petition.

43. Learned Standing Counsel for the State further submits that the
petitioner continued in service only by virtue of the interim order passed
by this Court and not pursuant to any valid and substantive appointment.
It is contended that the interim order was obtained without disclosure of
the complete and material facts, concerning the validity of the petitioner's
appointment. Consequently, the period during which the petitioner
continued to work under the protection of the interim order, cannot confer
upon him any substantive right to claim retiral or post-retirement benefits.
The petitioner, therefore, is not entitled to claim any retiral benefits on the
basis of such continuance in service.

44. Having bestowed my anxious consideration to the rival submissions
advanced by learned counsel for the parties and having perused the
material available on record, the principal question that falls for
consideration is whether the appointment of the petitioner as Assistant
Teacher against the post in question was made in accordance with the
statutory procedure prescribed under the Rules of 1978 and, consequently,
whether the petitioner can claim salary and retiral benefits on the strength
of such appointment and his subsequent continuance pursuant to the
interim order passed by this Court.

45. The record reveals that the post in question was sanctioned subject to
the express stipulation that the reservation policy applicable to Scheduled
Caste candidates was to be scrupulously followed. The competent
authority had accordingly granted permission for its advertisement,
subject to the said condition. The initial advertisement, however, did not
incorporate the prescribed reservation condition. The Committee of
Management was consequently directed to undertake a fresh selection in
conformity with the applicable reservation requirements. Although a
                                                        WRIA No. 5628 of 1989
                               11


subsequent advertisement was issued indicating the reservation, the
management did not proceed in accordance therewith and instead sought
to alter the conditions and secure approval of the selection already made.

46. It is not in dispute that Scheduled Caste candidates were available and
had participated in the selection process. Nevertheless, the petitioner, who
is a general-category candidate, came to be selected. The concerned
District Basic Education Officer, upon scrutiny of the papers submitted
for approval, raised specific objections and afforded the Committee of
Management an opportunity to explain the deficiencies. After considering
the reply furnished by the management, the competent authority declined
to approve the proposed selection and returned the papers. The
subsequent proposal for appointment of the petitioner was also expressly
disapproved by order dated 31.12.1988.

47. In these circumstances, the contention that the petitioner's
appointment stood automatically approved by virtue of the deeming
provision cannot be accepted in isolation from the admitted and
undisputed deficiencies in the selection process. A deeming provision
cannot be invoked to validate an appointment which, at its inception, was
made in disregard of the mandatory conditions governing the recruitment
and reservation process. The statutory fiction of deemed approval cannot
be permitted to operate as an instrument for legitimising an appointment
made contrary to the very statutory framework within which the power of
appointment was required to be exercised.

48. Equally, the fact that the nominee of the District Basic Education
Officer participated in the selection process does not, by itself, cure the
foundational illegality in the selection. The participation of the nominee
cannot dispense with compliance with the mandatory reservation
requirement, nor can it confer validity upon an appointment which was
subsequently found, upon scrutiny of the relevant record, to be contrary to
the prescribed procedure.

49. The plea founded upon violation of the principles of natural justice
also does not advance the petitioner's case. The material on record
indicates that the District Basic Education Officer had raised specific
queries concerning the irregularities in the selection and the Committee of
                                                        WRIA No. 5628 of 1989
                               12


Management had furnished its response thereto. The petitioner, therefore,
cannot legitimately contend that the competent authority was required to
afford him a separate opportunity before refusing approval to an
appointment which itself had not been made in accordance with the
prescribed procedure. In any event, an opportunity of hearing cannot be
invoked for perpetuating an appointment which suffers from a
fundamental statutory infirmity.

50. The subsequent re-advertisement of the post, therefore, cannot be
characterised as creating an artificial vacancy. Once the petitioner's
appointment itself was not approved and was found to have been made
contrary to the prescribed reservation requirements, his continuance could
not have the effect of extinguishing the substantive vacancy or preventing
the competent authority from requiring its lawful filling.

51. The further circumstance that the petitioner continued to discharge
duties under the protective umbrella of an interim order passed by this
Court stands on an entirely different footing. An interim order is
necessarily interlocutory in character and does not, by itself, adjudicate
upon or confer substantive validity upon an appointment which is
ultimately found to be contrary to the statutory rules. The petitioner's
continuance pursuant to such interim protection, therefore, cannot be
treated as equivalent to service rendered pursuant to a valid substantive
appointment for the purpose of conferring a vested right to retiral benefits.

52. At the same time, the respondents cannot be permitted to derive any
advantage from their own administrative lapses, if any, in dealing with the
petitioner's service after the interim order. The question of salary for the
period during which the petitioner actually discharged duties under the
orders of this Court would, however, have to be examined separately in
accordance with law and in the light of the precise terms of the interim
order and the applicable statutory provisions. Mere invalidity of the
appointment cannot, without examining the relevant circumstances, be
treated as an automatic answer to every claim arising from actual service
rendered under judicial protection.

53. For the foregoing reasons, the petitioner's appointment cannot be held
to have acquired statutory validity merely by reason of his selection by
                                                                                           WRIA No. 5628 of 1989
                                                                  13


                                    the Committee of Management or his subsequent continuance in service
                                    under the interim order. The order dated 31.12.1988, whereby approval to
                                    the petitioner's appointment was declined, does not warrant interference.
                                    Consequently, the challenge to the subsequent re-advertisement of the
                                    post also fails.

                                    54. The petitioner, having continued in service pursuant to an interim
                                    order and his underlying appointment having not been established to be a
                                    lawful appointment under the Rules of 1978, cannot claim a vested right
                                    to retiral or post-retirement benefits flowing from a substantive
                                    appointment. The writ petition is, accordingly, liable to be dismissed,
                                    subject to such consideration of salary, if any, as may independently arise
                                    from the actual service rendered by the petitioner pursuant to the interim
                                    order and the terms thereof.

                                    55. In view of the aforesaid, the present writ petition is dismissed,
                                    accordingly.



                                                                              (Mrs. Manju Rani Chauhan,J.)
                                    September 14, 2026
                                    K.N.




Digitally signed by :-
KALP NATH SINGH
High Court of Judicature at Allahabad