1. Appointment as Assistant Teacher under Dying-in-Harness Rules — Termination — Disapproval by statutory authority — Validity. (Para 3 , 5 )
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2026 Supreme(All) 1142
HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. MUNIR, INDRAJEET SHUKLA, JJ.
Mohd. Mustafa Siddiqui - Appellant
Versus
District Basic Education Officer and Ors. – Respondents
Special Appeal No. 391 of 2015
Decided On : 25-08-2026
Advocates Appeared:
For the Appellant : Hritudhwaj Pratap Sahi, S.k. Rao, Sankalp Narain
For the Respondents: C.S.C., Manish Kumar Maurya, P.k. Mishra, Rudra Pratap Mishra, Shriprakash Mishra, Sunil Kumar Singh
For the Appellant : Hritudhwaj Pratap Sahi, S.k. Rao, Sankalp Narain
For the Respondents: C.S.C., Manish Kumar Maurya, P.k. Mishra, Rudra Pratap Mishra, Shriprakash Mishra, Sunil Kumar Singh
Administrative orders must stand on their own reasons and cannot be supplemented by fresh grounds in affidavits. Statutory protections and grace periods provided in a Central Act must be applied if the mandates of that same Act are used to justify an employee's termination.
Headnote:(A) Right of Children to Free and Compulsory Education Act, 2009 - Section 23 - U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 - Rule 15 - Teacher Eligibility Test (TET) - Validity of appointment and termination - An administrative order must stand on its own stated reasons and cannot be later improved via affidavit; orders bad in the beginning cannot be validated by additional grounds, explanations or fresh reasons brought out later in the shape of affidavit or otherwise. (Paras 13-15)
(B) Doctrine of Approbate and Reprobate - A party cannot be permitted to blow hot and cold in the same breath by making a notification mandatory for termination of services on one hand and denying the statutory protection available under the same Central legislation on the other. (Para 33)
(C) Malice in Law - Attracted where an authority exercises its power for an unauthorised purpose, on considerations extraneous to the statutory scheme, or in a manner which is arbitrary and contrary to law, violating Article 14 of the Constitution. (Paras 35-37)
Facts of the case:
An Assistant Teacher appointed under the Dying-in-Harness Rules was terminated by the management on grounds of alleged forgery and concealment. The termination was subsequently disapproved by the District Basic Education Officer. In subsequent writ proceedings, the management introduced a new plea that the appointment was void ab initio because the teacher did not possess a TET certificate at the time of appointment, despite the teacher having acquired the qualification within the five-year grace period provided under the statutory rules and a Government Order.
Findings of Court:
The termination order was cryptic and lacked jurisdiction, and its disapproval by the competent authority attained finality. The attempt to introduce the lack of TET as a ground for termination via a counter-affidavit was legally impermissible. The appointment was protected by the first proviso to Section 23(1) of the Act, 2009, and the Government Order dated 05.12.2012, which allowed teachers to acquire the requisite qualification by 31.03.2015.
Issues: Whether an administrative order of termination can be supplemented with new grounds via affidavit and whether the initial absence of a TET certificate renders an appointment void when the qualification is acquired within the statutory grace period.
Ratio Decidendi: The court held that an order must stand or fall on the text of the reasons explicit within itself. Furthermore, if the mandates of a Central legislation are used to justify termination, the statutory protections and grace periods provided within that same Act must also be extended to the employee. The refusal to reinstate the employee after the termination was disapproved constituted malice in law.
Result: Special Appeal allowed; impugned judgment set aside; appellant reinstated in service forthwith with consequential monetary benefits and arrears of salary carrying 6% simple interest.
Legal Category Hierarchy
- administrative law
-
constitutional law
-
article 14
- arbitrariness (Para 37)
-
article 14
- service law
-
education law
- right of children to free and compulsory education act, 2009
- u.p. recognised basic schools (junior high schools) (recruitment and conditions of service of teachers) rules, 1978
Table of Contents
2. Appellant: appointment saved by proviso to Section 23, Act 2009 and GO dated 05.12.2012. Respondents: appointment void ab initio for lack of TET. (Para 11 , 21 , 24 , 29 )
3. Termination order unsupported by stated grounds; new ground of no TET cannot be added via affidavit under Mohinder Singh Gill. (Para 8 , 12 , 13 , 14 , 15 , 16 )
4. An administrative order must stand on its own stated reasons and cannot be later improved via affidavit; doctrine of approbate and reprobate applies. (Para 14 , 15 , 16 , 33 )
5. Writ petition allowed; impugned order set aside; reinstatement with full arrears and 6% simple interest within two months. (Para 49 , 50 )
6. Can an order of termination be justified by adding new grounds in a counter-affidavit?
No. An administrative order must stand on its own stated reasons and cannot be supplemented by fresh reasons in an affidavit. Otherwise, an order bad in the beginning may get validated later. (Para 14 , 15 , 16 )
7. What is the effect of a statutory authority disapproving a termination order under Rule 15?
The disapproval wipes out the effect of the termination, and the employee is entitled to be restored to the position held before the termination, including continuity of service. (Para 21 , 22 , 38 )
8. Can the doctrine of approbate and reprobate apply in service jurisprudence?
Yes. A party cannot rely on part of a statute (notification requiring TET) while denying the protective proviso in the same statute (five-year period to acquire TET). This is a species of estoppel. (Para 33 , 34 )
9. Is full back wages the normal rule upon illegal termination of service?
Yes, normally an employee illegally prevented from working is entitled to full back wages, subject to the employer pleading and proving gainful employment elsewhere. The burden shifts to the employer. (Para 42 , 43 , 44 , 45 )
10. Does 'no work no pay' apply when an employer deliberately prevents an employee from working?
No. The principle is not a rule of thumb. Where an employee is deliberately and illegally kept out of service, the court may order full arrears and interest to compensate for the injury. (Para 42 , 43 , 46 , 47 )
JUDGMENT :
Indrajeet Shukla, J.
1. Heard Mr. Sankalp Narain, learned counsel for the appellant, Mr. Shriprakash Mishra, learned counsel appearing on behalf of respondent nos. 4 and 5 and Mr. Akhilesh Kumar Tripathi, learned Standing Counsel on behalf of respondents nos. 1 to 3.
2. This intra-court appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules questions the validity and correctness of the order dated 23.04.2015, whereby the writ petition preferred by the appellant was dismissed with the following observation:
“The answer to the aforesaid argument of the learned counsel for the petitioner can be found in the Full Bench decision where it was held that the State Government was slow in its action in amending the Act. Since the notification dated 23.8.2010 has been issued in the exercise of power conferred under the Central Legislation, the State Government was bound to amend the Act immediately and failing to do so would not render the notification dated 23.8.2010 redundant. It came into force on 23.8.2010 and from that date on-ward 'TET' was essential qualification for a teacher to possess who is seeking appointment in primary school. Therefore, the petitioner on the date of his appointment did not possess the qualification of TET. He was not entitled to be appointed as Assistant Teacher in the said institution. But so far as the question with regard to the order of the committee of management terminating the service of the petitioner is concerned, the same has been taken care of by the order of the BSA dated 28.11.2014 by which no approval has been granted to such termination and a direction has been issued to allow the petitioner to join. By this writ writ petition what is being asked for is right to continue in the institution and also for payment of salary although apparently the order of committee of management is illegal and has been take care of by the BSA . Now, to invoke the jurisdiction of this Court for continuance , the petitioner has to satisfy his eligibility to continue in the institution. As stated above on the date of his appointment he was not qualified to be appointed as Assistant teacher in view of Notification dated 23.8.2010, as such I decline to interfere in this writ petition.
It would be proper to note certain further facts which are relevant . The petitioner continued in the institution from 10.8.2011 to 2.8.2014. The petitioner has now obtained certificate of TET dated 24.5.2014 for the session 2013-14. Therefore, Sri I.R.Singh submits that the petitioner since has now obtained the qualification he should not be disturbed at this stage only on account of the fact that initially at the time of his appointment he did not possess the requisite qualification as required by the notification dated 23.8.2010. Sri Singh further submits that even otherwise the petitioner was entitled for appointment under the Dying- in Harness Rules of 1974. The petitioner's father died in the year 2010 and the State Government has power to grant relaxation even beyond a period of five years and , therefore, he is still within the zone of consideration for being appointed under the dying in harness provision. Therefore, it is submitted that now his claim if considered, he is fully qualified to be appointed as Assistant Teacher in the institution and , therefore he should not be precluded from continuing in the institution for an illegality committed at the time of his initial appointment stood cured by his gaining qualification of TET subsequently.
I am unable to agree. If at the initial stage the petitioner was not qualified to be appointed, by subsequent gaining qualification his initial appointment cannot be validated. However, it is always open for the petitioner to apply under the Rules of 1974 in the institution as he is still under the eligibility zone for being considered under the Rules of 1974.
With the aforesaid observations, the writ petition is dismissed.”
3. The factual matrix necessary for the adjudic
