Yogesh Kumar Vs. State and anr.

Yogesh Kumar vs State and anr.

Disposition Petition dismissed Court Allahabad Decided Dec 19, 2000

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Citation: sooperkanoon.com/487222
Court: Allahabad High Court
Judge: V.M. Sahai, J.
Decided On: Dec 19, 2000
Case Number: Civil Misc. Writ Petition No. 53121 of 2000
Subject: Constitution
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 168; [S.B. Sinha & H.S. Bedi, JJ ] Determination of compensation Meaning of income of victim Held, The term income has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question n...

Key legal issue: Constitution
Outcome / disposition: Petition dismissed
Acts & sections: Uttar Pradesh Secondary Education Services and Selection Boards Act, 1982 - Sections 10, 18 and 33E; Deleting Removal of Difficulties Orders, 1982; Constitution of India - Article 19 and 19(1)

Parties & Advocates

Appellant / Petitioner

Yogesh Kumar

Advocate Rakesh Tiwari, ;J.N. Tiwari and ;C.B. Gupta, Advs.

Respondent

State and anr.

Advocate Sunita Agarwal, Adv.

Legal References

Acts: Uttar Pradesh Secondary Education Services and Selection Boards Act, 1982 - Sections 10, 18 and 33E; Deleting Removal of Difficulties Orders, 1982; Constitution of India - Article 19 and 19(1)
Cases Referred: Mukesh Kumar Sharma v. District Inspector of Schools
Reported In: (2001)2UPLBEC1094

Excerpt

- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted......in the act, there is no provision under which appointment on short- term vacancy could be made by the management as held by this court in mukesh kumar sharma v. district inspector of schools, aliqarh and ors., 2000 (4) esc 2303.5. the object of enactment of the act was to regulate the appointment and promotion of teachers working in aided institution. the act curtailed the powers of the management making appointments both on substantive and short-term vacancy. since the act was enforced on 14th july, 1982 and the rules had not been framed, therefore, the u.p. secondary education services commission (removal of difficulties) order, 1981, first and, second order, were issued for carrying out the purposes of the act. it permitted the management to fill the post on substantive or short-term vacancy during this period. rules were framed in 1983. but the removal of difficulties orders continued. therefore, the management's were exercising the power. but once the removal of difficulties orders have been rescinded the management cannot make any ad-hoc appointment except in accordance with section 18 of the act. in mukesh kumar sharma (supra) it has been held that any ad hoc appointment after 25.1.1999 by the management is void. the district inspector of schools, therefore, did not commit any error in rejecting the claim of the petitioner.6. the submission that deletion of removal of difficulties orders violates constitutional rights of the management is devoid of any merit. the right guaranteed under clause (g) of article 19 is not an absolute right. it is subject to reasonable restrictions which may be imposed by the state in the interest of general public. the very object and reasons of act show that the entire purpose of the act is to have suitable teachers by fair and free selection in the interest of standard of education. the provision for appointing teacher on substantive vacancy through board under section 10 or ad hoc by selection committee under section 18 are.....

Full Judgment

V.M. Sahai, J.

1. The question that arises in this petition is whether deletion of U.P. Secondary Education Services Commission (Removal of Difficulties) Orders, 1981 by insertion of Section 33-E in U.P. Secondary Education Services Selection Board Act. 1982 (in brief Act) amounts to placing unreasonable restriction on the right of committee of management to fill the substantive or short-term vacancy, and if so, whether it is against the public interest and is violative of Article 19(1)(g) of the Constitution ?

2. Sanatan Dharam Inter College, Orai, District Maun is an aided and recognised institution. A substantive vacancy of Lecturer fell vacant on 30.6.1999. It was filled by promotion of Sri Kaushlendra Kumar Sharnia with effect from 31.8.1999. On the same day, the committee of management sent a requisition in the meantime to the Board to fill the substantive vacancy of assistant teacher L.T. grade that fell vacant due to promotion of Sri Kaushlendra Kumar Sharnia. The promotion was approved on 5.1.2000 The Board did not recommend any candidate for appointment. After expiry of two months the management advertised the vacancy on 12.1.2000 in newspapers 'Karmyug Prakash' and 'Dainik Deewan' published from Orai, District Maun. The petitioner was selected on 23.1.2000. He was appointed ad-hoc assistant teacher L.T. grade on 24.1.2000. He joined on 28.1.2000. The management on 29.1.2000 forwarded the papers to the District Inspector of Schools for grant of financial approval. The District Inspector of Schools did not grant approval. The petitioner filed Civil Misc. Writ Petition No. 19596 of 2000 which was disposed of on 4.5.2000 and the District Inspector of Schools was directed to consider the matter of grant of approval. By order dated 31.10.2000 the District Inspector of Schools has held that ad-hoc appointment on substantive vacancy could not be made by the management, as the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 have been rescinded. And ad-hoc appointment could be made by the Joint Director of Education under the Act. It is this order passed by the District Inspector of Schools on 31.10.2000, which has been challenged by the petitioner in this petition.

3. Sri J. N. Tiwari the learned Senior Counsel assisted by Sri C.B. Gupta urged that The order of District Inspector of Schools was illegal and liable to be quashed He further urged that the deletion of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 amounts to placing unreasonable restriction on the right of committee of management to fill the substantive or short-term vacancy. The learned Counsel submitted that it was against public interest and is violative of Article 19(1)(g) of the Constitution.

4. On the other hand Smt. Sunita Agarwal the learned Standing Counsel has urged that with effect from 25.1.1999. Section 33-E has been inserted in the Act by which Removal of Difficulties Orders have been rescinded and the ad-hoc appointment against substantive vacancy could be made by the Joint Director of Education as, per procedure prescribed by Section 18(8) of the Act. She further urged that after the deletion of Removal of Difficulties Orders and insertion of Section 33-E in the Act, there is no provision under which appointment on short- term vacancy could be made by the management as held by this Court in Mukesh Kumar Sharma v. District Inspector of Schools, Aliqarh and Ors., 2000 (4) ESC 2303.

5. The object of enactment of the Act was to regulate the appointment and promotion of teachers working in aided institution. The Act curtailed the powers of the management making appointments both on substantive and short-term vacancy. Since the Act was enforced on 14th July, 1982 and the rules had not been framed, therefore, the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981, First and, Second Order, were issued for carrying out the purposes of the Act. It permitted the management to fill the post on substantive or short-term vacancy during this period. Rules were framed in 1983. But the Removal of Difficulties Orders continued. Therefore, the management's were exercising the power. But once the Removal of Difficulties Orders have been rescinded the management cannot make any ad-hoc appointment except in accordance with Section 18 of the Act. In Mukesh Kumar Sharma (supra) it has been held that any ad hoc appointment after 25.1.1999 by the management is void. The District Inspector of Schools, therefore, did not commit any error in rejecting the claim of the petitioner.

6. The submission that deletion of Removal of Difficulties Orders violates constitutional rights of the management is devoid of any merit. The right guaranteed under clause (g) of Article 19 is not an absolute right. It is subject to reasonable restrictions which may be imposed by the State in the interest of general public. The very object and reasons of Act show that the entire purpose of the Act is to have suitable teachers by fair and free selection in the interest of standard of education. The provision for appointing teacher on substantive vacancy through Board under Section 10 or ad hoc by selection committee under Section 18 are in public interest. It does not interfere with the right of management to establish educational institution for imparting education. In any case the petitioner has no right to raise this issue. Therefore, the argument of Sri Tiwari that the deletion of Removal of Difficulties Orders by insertion of Section 33-E in the Act amounts to imposing restrictions on the power of the management has to be rejected.

7. For the aforesaid reasons, I do not find any merit in this writ petition.

The writ. petition fails and is accordingly dismissed.

Same Court & Year Allahabad · 2000 Same Parties Yogesh Kumar vs State and anr. Same Subject Constitution Same Judge V.M. Sahai, J. Acts & Sections Uttar Pradesh Secondary Education Services and Selection Boar...

Constitution