- (1.) THIS reference has arisen out of a conflict having been noticed by a learned Single Judge between the division bench judgment in the case of Ved Prakash Vs. Hari Krishna Singh and others Special Appeal No. 30 of 2011 decided on 19th January, 2011 at Lucknow that has partly disapproved the ratio of the decision of a learned Single Judge in the case of Raja Ram Vs. State of U.P. and others decided on 30.11.2009 reported in 2009 (10) ADJ Pg. 585, and the decision delivered by another division bench at Allahabad in the case of U.P. Secondary Education Services Selection Board Allahabad Vs. State of U.P. & others Special Appeal No. 146 of 2010 decided on 21st January, 2011 that arose out of the Single Judge judgment in the case of Raja Ram (supra), and has upheld the same reported in 2011 (3) ADJ Pg. 340. The judgment in the case of Ved Prakash (supra) was rendered at Lucknow two days earlier to the judgment in the case of U.P. Secondary Education Services Selection Board Allahabad (supra) which was delivered on 21.1.2011 without noticing the judgment in the case of Ved Prakash (supra). These two simultaneous pronouncements within a short span in the peculiar circumstances noted above has given rise to this reference.
(2.) 2. The learned Single Judge after having noticed the abovementioned facts came to the conclusion that this conflict deserves to be resolved and accordingly framed three questions for being referred to a larger bench for an authoritative pronouncement under Chapter V Rule 6 of the Allahabad High Court Rules, 1952. Hon'ble the then Chief Justice was pleased to constitute the present Full Bench for resolving the said conflict on only two of the three questions framed by the learned Single Judge vide order dated 15th July, 2011. The matter was heard on 12th September, 2011 by this Full Bench and one of the questions raised was reframed by the following order:- We have heard Sri L.K. Trigunait in Writ Petition No. 16406 of 2011 for the petitioner, Sri Ashok Khare learned Senior Counsel for the petitioner in Writ Petition No. 27992 of 2011 and Sri P.S. Baghel learned Senior Counsel for the other side. Sri Zafar Naiyar learned Additional Advocate General has appeared for the State. The reference made by the learned Single Judge vide order dated 7th April, 2011 is to the following effect:- "(a) Whether a dependent can claim appointment against a post of teacher even after the post has been requisitioned to the selection Board in view of the Regulations 101 to 106 of Chapter III of the Regulations framed under the Intermediate Education Act merely because he has qualifications for the same, specifically when on the date of requisition, no such application for compassionate appointment was pending. (b) Whether Article 16 of the Constitution of India will be applicable to the teachers working in recognized Intermediate Colleges which are under the private management even if aided by the State Government. (c) Whether the judgment of the Division Bench of this Court in the case of Ved Prakash (Supra) lays down the correct law." While placing the matter before the Full Bench, Hon'ble the Chief Justice on 15th July, 2011 passed the following order:- "Matter be referred to the Full Bench presided over by a D.B. presided over by R.K. Agrawal,J. and A.P. Sahi,J. on questions (a) and (c) only. Sd/ Chief Justice 15/7/11"
(3.) ADVANCING his submissions, Sri Ashok Khare learned Senior Counsel pointed out that Question No. (c) refers to the correctness of the Division Bench decision in the case of Ved Prakash Vs. Hari Krishna Singh, Special Appeal No. (30) of 2011, decided on 19th January, 2011. The said decision in turn refers to the decision of a learned Single Judge in the case of Raja Ram Vs. State of U.P. & others reported in 2009 (10) ADJ 585, decided on 30th November, 2009.;