District Basic Education Officer v. Dhananjai Kumar Shukla and Anr.

S.B. SINHA, J. l. Leave granted.

¶2Respondent No.1 was appointed as a Headmaster in a recognised school. Recruitment to the post of Headmaster concededly is governed by the sta1Utory 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:

"6. Disqualification.- (1) No person who is related to any member of the Management shall be appointed as Headmaster or Assistant Te2'.cher of a recognised school.

(2) For the purposes ofthis 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."

¶3The 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. I 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.

¶4It appears the father of respondent N o.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:

"Respectfully 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.

Unle>s 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."

¶5He handed over charge to one Om Narain Tripathi on 21st August, 1998. Respondent No.l thereafter was recommended for appointment by the Selection Committee and was appointed in tenns thereof on a.dhoc basis.

¶6Inter alia on the premise that despite such appointment Responden1 No. I was not paid his salary, he filed a writ petition before the Allahabad High Court which was marked as Writ Petition N0.24957 I 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.

¶7A special appeal was filed thereagainst and the said interim order was vacated.

¶8For 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 th<: writ petition would be deemed to have been admitted.

¶9Mr. 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 impugn~d judgments are wholly unsustainable.

¶10Dr. 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. I, the impugned judgment should not be interfered with.

¶11Relationship 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 ohime on the ground that he was having pain in the knee.

¶12We 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 on! y 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.

¶13As 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.I 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.

¶14Rules of pleading contained in the Code of Civil Procedure do not cover questions oflaw. If a fact stands admitted the same in tenns 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 i.ts 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.

¶15We, having regard to the facts and circumstances of the case, are of the opinion that whether in law or in equity, it would be wholly improper to permit respondent No. l to continue to act as a Headmaster.

¶16For the reasons aforementioned, this appeal is allowed and the impugned judgments are set aside. The writ petition filed by respondent No. l shall stand dismissed. However, in the facts and circumstance of the case, there shall be no order as to cots.

CIVIL APPELLATE JURISDICTION :Civil Appeal No. 5773 of 2007.

From the final Judgment and Order dated 5.12.2005 of the High Court of Judicature at Allahabad in S.A. No. 1426/2005.

Shrish Kr. Misra, Garvesh Kabra and Niranjana Singh for the Appellants

Dr. J.:'11. Dubey, Anurag Dubey, Meenesh Dubey and Mohan Pandey for the Respondents.