Allahabad HC Dismisses Teacher's Appeal, Upholds Recovery for 18 Years of Salary Drawn on Fraudulent Appointment

The Division Bench found that the vacancy against which the appellant was appointed never legally existed, making every rupee drawn from the State exchequer recoverable under the doctrine of restitution.

A Division Bench of the Allahabad High Court, comprising Chief Justice Arun Bhansali and Justice Kshitij Shailendra, has dismissed Special Appeal No. 697 of 2011 filed by Subhash Chandra Tyagi, a teacher who claimed he had been lawfully appointed against a short-term vacancy at Shastri Smarak Inter College, Ahmad Shahpur, Padra, District Baghpat. The court found that the very vacancy — said to have arisen when one Ved Prakash Harit went on leave without pay — had no documentary foundation. Harit's name never appeared in salary bills from the State exchequer, and no leave records were ever produced. The bench upheld the termination orders of January 2011, vacated the interim stay on cost recovery of Rs 2,16,000/-, and declined to remand the matter to the State Government under Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982.

The Dispute Before the Division Bench

This was an intra-court appeal directed against an order dated 1 February 2011, by which a learned Single Judge had dismissed Writ-A No. 6090 of 2011 and directed the appellant to deposit costs of Rs 2,16,000/- within six weeks, failing which the amount was to be recovered as arrears of land revenue by the Collector.

The writ petition itself had challenged two orders dated 19 January 2011 and 20 January 2011 passed by the District Inspector of Schools, Baghpat, and the Authorised Controller of the institution, respectively. By those orders, the appellant's services had been terminated after a prior writ petition — Writ-A No. 42763 of 1993 — was dismissed as infructuous and its interim order vacated.

The story begins in November 1992. The institution was then under an Authorised Controller, who issued a vacancy notice dated 24 November 1992 for an ad-hoc appointment in the Trained Graduate (LT) grade. The notice stated that preference would be given to candidates from reserved categories and that the interview would be held on 6 December 1992. On that date, since no reserved-category candidate appeared, the appellant — who does not belong to a reserved category — was selected. Papers were forwarded to the D.I.O.S. on 7 December 1992 and, treating silence as deemed approval, the appellant was appointed on 18 December 1992.

When salary was not paid, he filed Writ-A No. 42763 of 1993. The court passed an interim order on 4 October 1993 directing the D.I.O.S. to pass an approval or disapproval order within three weeks. The then-D.I.O.S., S.S. Rawat, approved the appointment on 23 May 1995 in the pay-scale of Rs 1,400–2,300 with effect from 21 December 1992, subject to the condition that the vacancy would end when Harit returned. On the strength of that approval, the appellant drew salary month-to-month for the next fifteen years.

Fraud Surfaces After Fifteen Years

The 1993 writ petition came up for final disposal in 2010. The State had filed no counter affidavit, so the court directed one to be filed. The D.I.O.S.-Kamlesh Kumar filed a counter affidavit on 6 January 2011 disclosing a deeply troubling set of facts. He had written to the Controller on 14 December 2010 asking for relevant records — Harit's leave application, pay bills prior to September 1992, Harit's service book, his residential address, and any resignation or post-leave application from him. None of these documents were available at the institution. The Principal confirmed that Harit had neither returned after the alleged leave nor sent any communication.

More damaging still, the State produced the original pay bill register for teaching and non-teaching staff from July 1992 to May 1993. Harit's name did not appear anywhere in it. The D.I.O.S. also disclosed that S.S. Rawat — the very officer who had approved the appellant's appointment — had been subjected to departmental proceedings by the State Government. An order dated 24 March 2009 recorded that charges of facilitating 96 fraudulent appointments and payments of salary in various institutions had been proved against Rawat. His entire gratuity was seized and 50% of his pension was directed to be deducted permanently.

The writ court passed a detailed order on 7 January 2011 noticing these facts, characterised the situation as prima facie fraud on the public exchequer, and directed the appellant to file evidence establishing that Harit had ever been paid salary from the State exchequer and explaining the procedure followed in his own appointment. The matter was listed for 11 January 2011.

On 11 January 2011, counsel for the appellant stated that he did not wish to file a reply to the supplementary counter affidavit and that, in view of subsequent developments, the writ petition had become infructuous. The court, noting that Harit's name was absent from the 1991–1993 salary bills, dismissed the petition as infructuous and vacated the interim order. The termination orders followed within days.

The Single Judge's Observations and the Cost Direction

When Writ-A No. 6090 of 2011 came before the Single Judge challenging the termination, the court did not confine itself to the narrow question of whether the termination was procedurally valid. The Single Judge observed that incumbents like the appellant are able to draw salary from the State exchequer by fraudulent means in collusion with pliable officers, in part because courts are often reluctant to pass stringent orders.

The Single Judge also noted that even in the earlier round, the appellant had been allowed to withdraw the petition rather than face adjudication on merits, and that this had emboldened him to file fresh proceedings raising only technical arguments without any lawful foundation. Factoring in that the appellant had drawn salary in the pay-scale of Rs 1,400–2,300 from 1995 onwards, with increments accruing over subsequent years, the Single Judge imposed costs at the rate of Rs 1,000 per month for all years of salary drawn, quantifying the amount at Rs 2,16,000/-.

Arguments in the Special Appeal

Before the Division Bench, counsel for the appellant pressed three broad arguments. First, that the appointment followed due procedure under the law, was approved by the D.I.O.S. on 23 May 1995, and when the earlier writ petition was dismissed as infructuous, it was genuinely because the petition had become infructuous — not because any finding of fraud was recorded. The D.I.O.S. and the Controller were therefore not justified in terminating services merely on that basis. Second, that the termination orders were non-speaking orders and liable to be set aside on that ground alone. Third, that the findings and observations against the appellant in the Single Judge's order and in the earlier writ orders were unwarranted because the appellant had not colluded with anyone and his appointment was consistent with Section 33-F of the Act of 1982. Reliance was placed on the Supreme Court's judgment in Radhey Shyam Yadav and Another v. State of U.P. and Others : (2024) 11 SCC 770.

The Standing Counsel for the State answered that once the record established that Harit never received salary from the State exchequer and no documents evidencing his leave were found, the appointment was fraudulent from inception. The D.I.O.S. who approved it was punished in departmental proceedings for 96 such fraudulent appointments. The appellant himself, when given a clear opportunity to establish legality, chose instead to have the earlier petition dismissed as infructuous. Once the interim order fell, the salary benefits derived under it were required to reverse.

The Division Bench's Reasoning

Justice Kshitij Shailendra, writing for the bench, examined the vacancy notice dated 24 November 1992 and the resolution passed on 6 December 1992 at the institution. The resolution recorded that Harit was on leave without pay for two years from 9 September 1992 and that since no reserved-category candidate appeared, the appellant was selected. The bench observed that the appellant, not belonging to the reserved category, could not derive legal validity for his appointment merely from the non-appearance of reserved-category candidates.

The court then turned to the core finding: there was nothing on record to show that Harit ever received salary from the State exchequer. No documents evidencing even his going on leave were found in the institution. His name appeared nowhere in the pay register for any period. The bench held that the erstwhile D.I.O.S. approved the appointment without verifying whether there actually was a teacher named Ved Prakash Harit or whether he was “simply an imaginary figure brought on scene for the purposes of creating a short term vacancy.”

On the legal position regarding interim orders, the bench referred to the Supreme Court's decision in Amarjeet Singh and Others v. Devi Ratan and Others : (2010) 1 SCC 417, where it was held that no litigant can derive benefit from mere pendency of a case, as the interim order always merges in the final order. If the writ petition is ultimately dismissed, the interim order stands nullified automatically. The bench also relied on Ram Krishna Verma v. State of U.P. : (1992) 2 SCC 620, where the Supreme Court held that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised. And on Jainendra Singh v. State of U.P. : (2012) 8 SCC 748, which held that fraudulently obtained orders of appointment can be legitimately treated as voidable at the employer's option and that long continuance in service does not create equity in favour of such an employee.

The bench restated the settled principle that “fraud vitiates even the most solemn act and fraud and justice never dwell together,” citing Ram Chandra Singh v. Savitri Devi : (2003) 8 SCC 319 and three other Supreme Court decisions on fraud. The court held that once the writ petition was dismissed and the interim order discharged, no orders other than termination were required or lawful. Whatever salary had been received from the State exchequer was bound to be recovered.

Section 33-F and the Remand Argument Rejected

Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982 provides for regularisation of certain ad-hoc appointments made between 14 May 1991 and 6 August 1993 against short-term vacancies that were subsequently converted into substantive vacancies, provided the teacher met prescribed qualifications, had served continuously, and was found suitable by the prescribed Selection Committee. Sub-section (4) of Section 33-F further provides that a teacher who is not found suitable or eligible shall cease to hold the appointment on such date as the State Government may by order specify.

The appellant argued that since his appointment fell within the period specified in Section 33-F(1), he was at the minimum entitled to have the State Government pass an order under sub-section (4) before his services could be terminated, and the Division Bench should remand the matter to the State Government for that purpose.

The Division Bench rejected this entirely. The court held that it had reached a finding that the short-term vacancy itself was fraudulent and that its filling was unlawful. There could be no law that required a court, having found an unlawful and fraudulent vacancy and appointment, to ignore that finding and mechanically apply a regularisation provision to confer a benefit on the wrongdoer. The court also referred to the Supreme Court's recent decision in Suvej Singh v. Ram Naresh and Others : (2025) 12 SCR 584 — which itself relied on M.C. Mehta v. Union of India and other decisions — for the proposition that higher courts should avoid unnecessary remands that may generate fresh rounds of litigation. The same view was reiterated in Mahendra Prasad Agarwal v. Arvind Kumar Singh and Others : 2026 LiveLaw (SC) 195.

The bench also noted a procedural fact that it considered revealing: in Writ-A No. 42763 of 1993, the appellant had not impleaded the State of U.P. as a respondent. The only State official in the array was the then-D.I.O.S., who was subsequently punished for facilitating 96 unlawful appointments. The court observed that the appellant appeared to have sought adjudication behind the back of the State Government, and almost succeeded.

Outcome

The Division Bench dismissed Special Appeal No. 697 of 2011 as having no substance. The interim order dated 2 May 2011, which had stayed the recovery of Rs 2,16,000/- directed by the Single Judge, was vacated. The court noted that the appellant's working had not been protected under the interim order in this appeal, so he had already been out of service since 20 January 2011. With the stay on recovery now lifted, the direction to pay or recover Rs 2,16,000/- stands operative. The bench recorded that “consequences to follow.”