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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.