CJ's Court
A.F.R.
Special Appeal No.8 of 2010
Shashi Kant Srivastava
Vs
District Inspector of Schools, Varanasi and another
***
Hon’ble C.K. Prasad, CJ
Hon’ble Pankaj Mithal, J
Writ petitioner-appellant, aggrieved by order dated 23.11.2009 passed
by a learned Single Judge in Civil Misc. Writ Petition No.1284 of 1992, has
preferred this special appeal under Rule 5 Chapter VIII of the Allahabad High
Court Rules.
Writ petitioner-appellant (hereinafter referred to as ‘the writ petitioner’)
filed the writ application, inter alia, praying for issuance of a writ in the nature
of mandamus commanding respondents to continue him in service and for
payment of salary treating him to have been validly selected and appointed as
teacher in the primary section of Sri Agrasen Mahavidyalaya Inter College,
Chaukhambha, Varanasi.
The learned Single Judge declined to grant relief to the writ petitioner
on his finding that the appointment of the writ petitioner is void ab initio and
in this connection, referred to the provisions of the U.P. Secondary Education
Service Selection Board Act, 1982 and the procedure laid down in the U.P.
Secondary Education Services Commission (Removal of Difficulties) Order,
1981. He also referred to the U.P. Basic Education Act, 1972 as also the U.P.
Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions
of Services of Teachers) Rules, 1978.
Mr. Gajendra Pratap, learned Senior Advocate, appearing on behalf of
2
the writ petitioner, submits that the writ petitioner’s appointment shall be
governed by Section 16-E of the U.P. Intermediate Education Act, 1921 (in
short ‘the Act, 1921’) and the reliance by the learned Single Judge to other
statutes referred to in the impugned judgement is absolutely misplaced.
Even if, we assume in favour of the writ petitioner that Section 16-E of
the Act, 1921 shall govern the appointment, he has not been appointed
according to the procedure prescribed therein. Section 16-E (2) of the Act,
1921, which is relevant for the purpose, reads as follows:-
“16-E (2). Every post of Head of Institution or
teacher of an institution shall except to the extent
prescribed for being filled by promotion, be filled by
direct recruitment after intimation of the vacancy to the
Inspector and advertisement of the vacancy containing
such particulars as may be prescribed, in at least two
newspapers having adequate circulation in the State.”
From a plain reading of Section 16-E (2) of the Act, 1921, it is evident
that for filling up of the post of teacher of an institution, vacancy is to be
advertised in at least two newspapers having adequate circulation in the State.
The writ petitioner has not averred that the vacancy was so advertised. In
paragraph 5 of the writ application, he has averred that the vacancy was
advertised ‘on the notice board of the institution’. In that view of the matter,
the appointment of the writ petitioner is in the teeth of the provisions of
Section 16-E (2) of the Act, 1921, which renders his appointment void in law.
Mr. Pratap, then submits that the writ petitioner having worked since
1991, he may not be thrown out of the employment and justice demands that
3
he be allowed to continue in service and a direction for payment of salary be
made. In support of the submission, reliance has been placed on a Division
Bench judgment of this Court in Smt. Zaitoon Fatima Vs. Director of
Education U.P. and others, [1999 ALL.L.J. 1577] and our attention has been
drawn to paragraph 6 thereof, which reads as follows:-
“6. The Court is no-doubt conscious of the
maxim “Quod Ab initio Non Valet In Tractu Temporis
Non Convalescit”, which implies that which was
originally void, does not by lapse of time become valid but
rule contained in the said maxim is subject to certain
exceptions and one such exception is illustrated by the
maxim, quod fieri non debet factum valet which means the
fact cannot be altered though it should not have been done.
R. v. Lord Newborough, 4 QB 585, will illustrate the
doctrine of factum valet. There, the question was as to the
payment of salary to certain special constables whose
appointments had not been made in accordance with the
requirements of the Special Constable Act, 1831 nor was
there any valid order for payment of their salaries. Relying
upon the doctrine of quod feiri non debet factum valet,
Lush J, who decided that, as the order for payment had
been acted upon, the account allowed, and the money paid,
the proceedings should not be re-opened. The appointment
of the appellant herein to C.T. grade and later, to L.T.
grade by promotion having been in fact acted upon, it
would not be just and proper to re-open the question of
validity of her appointment by promotion to C.T. grade
and later, to L.T. grade after a lapse of about 23 years. In
our opinion, the order of the Regional Inspectress of Girls
Schools referring the matter to the Director of Education
4under Section 16-E (10) is thus liable to be quashed.”
We do not find any substance in the submission of the the learned
counsel for the appellant and the decision relied on is clearly distinguishable.
Equity comes into picture only when the law is silent. The Supreme
Court in the cases of Prabhat Kumar Sharma Vs. State of U.P. [AIR 1996
SC 2638] and Shesh Mani Shukla Vs. District Inspector of Schools, Deoria
[JT 2009 (10) SC 309], has clearly held that in case the appointment is held to
be void ab initio, the employee has no right either to continue on the post or to
claim salary. Here, the learned Single Judge has found the appointment of the
writ petitioner to be void ab initio, with which we have concurred and, in that
view of the matter, direction for payment of salary and continuance in service
cannot be given on the ground of equity.
Now referring to the decision of this Court in Zaitoon Fatima (supra),
the same is clearly distinguishable. In the said case, the appointment was made
as also promotion and, after a lapse of 23 years, the same was sought to be re-
opened. Here, in the present case, the writ petitioner’s prayer is for payment of
arrears of salary treating him to have been validly selected and appointed. It is
not his case that his appointment is sought to be rescinded after a long distance
of time.
Lastly, Mr. Pratap, submits that the writ petitioner has been paid salary
during all these years and hence on this ground alone, the order of the learned
Single Judge be set aside. We do not find any substance in this submission
also. Payments in all these years have been made in the garb of an order
passed by this Court and the learned Single Judge, on fact, having found that
5
the writ petitioner’s appointment is void ab initio, the litigious payment of
salary would not enure to his benefit.
We are of the opinion that the consideration of the matter by the learned
Single Judge does not suffer from any error calling for interference in this
appeal.
We do not find any merit in this appeal and it is dismissed, accordingly.
Dt/-6.1.2010
RKK/- (C.K. Prasad, CJ)
(Pankaj Mithal, J)