SHESH MANI SHUKLA versus D.I.O.S. DEORIA & ORS.

Citation: [2009] 11 S.C.R. 841 · Decided: 31-07-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

[2009] 11 S.C.R. 841 
SHESH MANI SHUKLA 
A 
V. 
0.1.0.S. DEORIA & ORS. 
(Civil Appeal No. 4966 of 2009) 
JULY 31, 2009 
B 
[S.B. SINHA AND CYRIAC JOSEPH, JJ.] 
Servi9e law: 
,, 
UP. Secondary Education Services Commission and c 
Selection Boards Act, 1982 - ss. 16 and 18 - First Removal 
of Difficulties Order, 1981 - Para 5 - Post of Teacher -
Appointment for- Respondent no.3 recommended by District 
Inspector of Schools - Committee of Management ignoring 
the recommendation and selecting appellant - Disapproval D 
of, by DIS - Challenge to - Dismissal of writ petition as also 
) 
appeal - On appeal, held: Committee of Management could 
not appoint a teacher ignoring recommendations of DIS -
Institution did not comply with the provisions of 1981 Act as 
also para 5 of 1981 Order - Appointment of the appellant was 
E 
void ab initio, thus, could not be granted approval by statutory 
authority - No exception could be taken only because 
appellant worked for a long time - Appellant must establish 
legal right in himseif and corresponding legal duty in the State 
- Constitution of India, 1950 - Article 226. 
F 
The question which arose for consideration in this 
appeal is whether the Committee of Management could 
make appointment in the post of a teacher ignoring the 
recommendations of the District Inspector of Schools. 
G 
Dismissing the appeal, the Court 
HELD: 1.1. A substantive vacancy arose on or about 
15.10.1985. Intimation as regards vacancy was given on 
841 
H 
842 
SUPREME COURT REPORTS 
[2009] 11 S.C.R. 
A 19.9.1986. Recommendation of respondent No.3 by the 
District Inspector of Schools was made on 8.6.198~. Thus, 
a recommendation~ad been made within a period of one 
year. On what premise, the candidature of respondent 
No.3 was not found suitable or he was otherwise found 
B to be ineligible for holding the said post was not 
disclosed. Thus, the conduct of the Committee of 
Management of the institution is required to be 
considered having regard to the afore mentioned 
provisions. [Paras 8 and 11] [846-H; 850-G-H; 851-A-B] 
c 
1.2. Para 6 of the First Removal of Difficulties Order, 
1981 provides for eligibility for appointment. Para 7 
thereof provides that in the event of any dispute in 
respect of the promotion or direct recruitment, the same 
would be referred to the Director whose decision shall be 
D final. The District Inspector of Schools in his letter dated 
8.6.1987 addressed to the manager of the Institution 
regarding issue of appointment letters to the selected 
candidates, on temporary basis. A reminder thereto was 
also sent by the Distri<;t Inspector of Schools on 3.8.1987 
E as respondent No.3 was not allowed to join his service. 
Again by order dated 20.4.1988, it was directed that till 
now, this Department has not received the intimation 
about joining of the duties by respondent No. 3. It was 
submitted that another person was appointed in place of 
F respondent No. 3. This act is absolutely illegal, on which 
it is not possible to give consent, because no directions 
have been given by this office for appointment of any 
person. Hence it is directed to take necessary action 
immediately for getting joining of duty done by 
G respondent No. 3, otherwise, Departmental action would 
be taken. [Paras 12 and 13) [851-B-D; 852-A-D] 
H 
1.3. Both the Single Judge as also the Division Bench 
of High Court found that the institution did not comply 
) 
SHESH MANI SHUKLA v. D.1.0.S. DEORIA & ORS. 
843 
with the provisions of the U.P. Secondary Education A 
Services Commission and Selection Boards Act, 1982 as 
amended as also para 5 of the 1981 order. Action, on the 
part of the Committee of the Management to hold 
selection, being not consistent with Para 5 of the Order 
has rightly been held to be wholly unsustainable. . B 
Appellant has worked for a long time. His appointment, 
however, being in contravention of the statutory provision 
was illegal, and, thus, void ab initio. The question of 
granting any approval thereto did not arise. If his 
appointment has not been granted approval by the c 
statutory authority, no exception can be taken only 
because the appellant had worked for a long: time. The 
same by itself cannot form the basis for obtai~ing a writ 
of or in the nature of mandamus; as it is well known tilat 
for the said purpose, ·the writ petitioner must ~stablish a 0 
legal right in himself and a corresponding legal duty in 
the State. Sympathy or sentiments alone, cannot for

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