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Ram Prakash Singh v. State Of U.P. & Others - SPECIAL APPEAL DEFECTIVE No. 242 of 2004 [2006] RD-AH 13452 (12 August 2006)


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Court No.32

Special Appeal No. 242 of 2004

Ram Prakash Singh .....Appellant


The State of U.P. and others .....Respondents


Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This special appeal arises out of the judgment dated 16th October, 2003 passed by the Hon'ble Single Judge dismissing petitioner-appellant's Civil Misc. Writ Petition No. 49672 of 1999.

We have heard Mr. B.N.Singh, learned counsel appearing for the appellant and Mr. Sanjay Goswami, learned Standing Counsel appearing for the State-respondents.

The brief facts giving rise to this appeal are that certain new posts of Assistant Teacher (L.T. Grade) were created in Lieutenant Nahar Singh Ucchatar Madhyamik Vidhyalaya Quarsi, Aligarh in the year 1993. Pursuant thereto the Committee of Management resolved to make ad hoc appointment on the aforesaid posts and consequently vide order dated 6.8.1993 the petitioner-appellant was appointed as Assistant Teacher on ad hoc basis. The Committee of Management thereafter submitted the papers of his selection and appointment to the District Inspector of Schools, Aligarh for approval but the same was not approved by the District Inspector of Schools.  The petitioner-appellant filed Civil Misc. Writ Petition No. 16831 of 1998 before this Court, which was disposed of directing the appellant to make a fresh representation to the District Inspector of Schools, who was required to decide the same by a speaking order.

Pursuant to this Court's order dated 6th April, 1999, the claim of the petitioner-appellant was considered by the District Inspector of Schools and vide order dated 28th October, 1999 the representation of the petitioner-appellant was rejected on the ground that his appointment was not made in accordance with the provisions of the U.P. Secondary Education Service Selection Board Act, 1982 (for short the Act). The aggrieved petitioner-appellant approached this Court by filing Civil Misc. Writ Petition No. 49672 of 1999 which has been dismissed vide judgment under appeal.

Learned counsel for the appellant vehemently contended that Section 18 of the Act of 1982 was omitted vide U.P. Act No.1 of 1993 with effect from 7.8.1993 and the Committee of Management has power to make ad hoc appointment and the appointment of the petitioner-appellant was made after due selection and, therefore, the District Inspector of Schools has wrongly denied approval and has erred in law in observing that the appointment of the petitioner-appellant was not met in accordance with Section 18 of the Act of 1982. He further contended that in the same selection four persons were selected on the post of Assistant Teacher and in respect to other three teachers, approval has been granted by the District Inspector of Schools and their salary is also being paid but discriminatory treatment has been made to the petitioner-appellant by denying approval and, therefore, the action of the respondents is violative of Articles 14 and 16 of the Constitution of India.

We have considered the submissions but do not find any force.

So far as the first submission regarding omission of Section 18 is concerned, we find that by Section 13 of the U.P. Act No.1 of 1993, Section 18 of the Act was sought to be deleted but sub-section (2) of Section 1 of the said Act also provided that the provisions of U.P. Act No.1 of 1993 shall come into force on such date as notified by the State Government. In exercise of power under Section 1(2) of the Act, a Notification was issued on 7th August, 1993 by which all the provisions of U.P. Act No. 1 of 1993 were enforced except Section 13 which omitted Section 18 from the statute. The result of this Notification is that Section 18 is continuing to remain in force since the provisions omitting Section 18 as made by U.P. Act No.1 of 1993 has not been enforced till date. This aspect has already been dealt with in detail by a Full Bench of this Court in the case of Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girls Inter College and others, 1994 (3) UPLBEC 1551. In para 27 of the judgment after thrashing out the entire legislative history of Section 18 of the U.P. Act 1982 it has been observed that Section 18 of the Act is still continuing since the Section 13 of the U.P. Act No.1 of 1993 has not been enforced till date. Thereafter, in para-28 of the judgment the Full Bench considered the question as to what was the procedure for appointment between the period from 14th July, 1992 to 6th August, 1993 and in para-51 of the judgment it has been answered as quoted hereunder:

"Second Stage:

The method of ad hoc appointment of teacher, Principal against the short term vacancy remains the same as it was in the first stage. The direct recruitment of ad hoc teacher is required to be done in accordance with the procedure laid down in Section 18 of the Act."

It is not disputed by the learned counsel for the appellant that the appointment of the petitioner-appellant was not made in accordance with the procedure prescribed under Section 18 of the Act of 1982 as amended with effect from 14.7.1992 and therefore, we are of the view that his appointment being illegal, he has no right to continue on the said post and also cannot claim salary as a matter of right on the basis thereto.

Now coming to the second contention, we are of the view that once the petitioner-appellant was appointed illegally and in a manner inconsistent to the provisions of the Act, no legality can be conferred thereupon by referring to any illegality perpetuated by the authority in respect to other persons.

It is well settled legal position that two wrongs will not make one right. The Apex Court in the Case of State of Haryana and others Vs. Ram Kumar Mann, 1997 (3) SCC 321 has held that Article 16 has no application in the matter where the claim is based on parity for extension of a benefit of an illegal act. The Apex Court in Para-3 of the judgment observed-

"A wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. ..........."

The same view has been reiterated in a catena of cases, few of them are M/s Anand Buttons Ltd. etc. Vs. State of Haryana   and others, AIR 2005 SC 565 (Para-12) and Kastha Niwarak G.S.S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 (Para-8).

In this view of the matter, we do not find any fault in the judgment under appeal. The special appeal, therefore, lacks merit and is, accordingly, dismissed summarily.




Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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