Full Judgment Text
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CASE NO.:
Appeal (civil) 5773 of 2007
PETITIONER:
DISTRICT BASIC EDUCTION OFFICER
RESPONDENT:
DHANANJAI KUMAR SHUKLA AND ANR
DATE OF JUDGMENT: 07/12/2007
BENCH:
S.B. SINHA & G.S. SINGHVI
JUDGMENT:
J U D G M E N T
[Arising out of SLP(C) No.12168/2006]
S.B. Sinha, J.
Leave granted.
Respondent No.1 was appointed as a Headmaster in a recognised school.
Recruitment to the post of Headmaster concededly is governed by the statutory rules
framed under Uttar Pradesh Recognised Basic Schools (Junior High Schools)
(Recruitment and Conditions of Services of Teachers) Rules, 1978. Rule 6 of the said
Rules reads:
\0236. Disqualification.- (1) No person who is related to any member of
the Management shall be appointed as Headmaster or Assistant
Teacher of a recognised school.
(2) For the purposes of this rule, a person shall be deemed to be
related if he is related to such member in any one of the following
ways, namely-
(i) Father or mother;
(ii) Grandfather, Grandmother;
(iii) Father-in-law, mother-in-law;
(iv) Uncle, aunt, maternal uncle, maternal aunt;
(v) Son, daughter, son-in-law, daughter-in-law;
(vi) Brother, sister;
(vii) Grandson, grand-daughter;
(viii) Husband, wife;
(ix) Nephew, niece;
(x) Cousin;
(xi) Wife’s brother, or wife’s sister, wife’s brother’s
wife, sister’s husband;
(xii) Brother’s or cousin’s wife.\024
The post of Headmaster inter alia fell vacant in Janta Adarsh Madhyamic
Vidyalaya, Newada Khurd, Kalan, Etawa. An advertisement therefor was issued by
the manager of the said school. In purported response to the said advertisement the
respondent No.1 filed an application before the manager of the school praying for his
appointment. The manager by a letter dated 18.8.1998 asked for approval thereof
from the District Education Officer, Itawah.
It appears the father of respondent No.1, who was the manager of the said school on
the relevant date, sought for leave from the President of the Managing Committee of
the said school stating:
\023Respectfully it is submitted that there appears to be unavoidable
pain in the knee of the applicant due to which he is facing a lot of
difficulty in moving.
Unless applicant completely becomes healthy from the physical point
of vie till then Shri Om Narain Tiwari Deputy manager will take the
charge and responsibility of the post of Manger. After getting
alright, applicant will again assume the charge of the post of the
Manager and will do the work approximately two months time can
be taken for the applicant becoming healthy.\024
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He handed over charge to one Om Narain Tripathi on 21st August, 1998.
Respondent No.1 thereafter was recommended for appointment by the Selection
Committee and was appointed in terms thereof on adhoc basis.
Inter alia on the premise that despite such appointment Respondent No.1 was not
paid his salary, he filed a writ petition before the Allahabad High Court which was
marked as Writ Petition NO.24957/1999. By an order dated 16.6.1999 the High Court
directed the appellant to continue the respondent No.1 on the said post as also pay his
due salary.
A special appeal was filed thereagainst and the said interim order was vacated.
For the reasons best known to the authorities of the appellant, however, no counter
affidavit was filed in the writ petition. The said writ petition was, therefore, allowed.
Thereafter, an application for recalling of the said order was filed which was also
dismissed. A special appeal thereagainst has been dismissed by a Division Bench of
the High Court opining that as the appellant did not file any counter affidavit, the
principles of Order 8 Rule 5 of the CPC would apply and thus all the statements made
in the writ petition would be deemed to have been admitted.
Mr. Shrish Misra, learned counsel appearing on behalf of the appellants would
submit that in view of the fact that the respondent was appointed contrary to the
provisions of the Rules, the same being a nullity, the impugned judgments are wholly
unsustainable.
Dr. J.N. Dubey, learned senior counsel appearing on behalf of the respondents, on
the other hand, submitted that not only the questions raised in the special leave
petition were not raised before the High Court, but also in view of the fact that
appropriate authority has granted approval to the appointment of respondent No.1,
the impugned judgment should not be interfered with.
Relationship between Anand Kand Shukla and the respondent is not in dispute
being father and son. It also stands unrebutted that Anand Kand Shukla went on
leave at the relevant point of time on the ground that he was having pain in the knee.
We would proceed on the basis that the High Court might have been justified in
proceeding ex-parte but then it should have kept in mind the principles underlying
Order 8 rule 5 of the CPC, (assuming that the provisions of the CPC are applicable in
terms of the High Court rules framed by the High Court of Allahabad despite Section
141 of the CPC), that not only despite non-filing of the written statement a Court of
law may call upon the plaintiff to prove his case but also there cannot be any doubt
whatsoever, that no relief can be granted by the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of India which would be contrary to
law.
As basic foundational fact stands admitted before us, we are of the opinion that the
judgment of the High Court cannot be sustained. The appointment of Respondent
No.1 being contrary to the mandatory provisions as contained in Rule 6 of the Rules,
the same was a nullity. An appointment which was per se illegal could not have been
directed to be leglised only because the appellant did not file its counter affidavit. It
did not admit the respondent’s claim The question involved in the writ petition was a
legal question. As indicated hereinbefore, the foundational facts are undisputed.
Rules of pleading contained in the Code of Civil Procedure do not cover questions of
law. If a fact stands admitted the same in terms of Section 56 of the Indian Evidence
Act need not be proved. Only because such a question was not allegedly raised
before the High Court, this Court could not shut its eyes to the legal position. Yet
again only because an illegality has been committed, this Court would not allow its
perpetration. Respondent’s father was on leave for a temporary period. He thereby
did not cease to be the Manager of the school. It is apparent that he went on leave
only for defeating the statutory provisions. Such an act amounts to fraud on the
administration.
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We, having regard to the facts and circumstances of the case, are of the opinion tha
t
whether in law or in equity, it would be wholly improper to permit respondent No.1 to
continue to act as a Headmaster.
For the reasons aforementioned, this appeal is allowed and the impugned judgments
are set aside. The writ petition filed by respondent No.1 shall stand dismissed.
However, in the facts and circumstance of the case, there shall be no order as to cots.