# Ajai Kumar Mishra v. D.M., Fatehpur and others

- **Citation:** (2009) 3 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-12
- **Case number:** Civil Misc. Writ Petition No.52816 of 2009
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajai-kumar-mishra-v-d-m-fatehpur-and-others-41549
- **Pages:** 3

## Headnote

Constitution
of
India
Article
226
Cancellation of appointment of Shiksha
Mitra-petitioner
passed
High
School
Examination in the year 1988-again
appeared in High School Examination
1995 and the Intermediate examination
in 2005-on aggregate of marks of High
School
88,
and
Intermediate
examinations got selected- once the
petitioner himself forgo 88 examination-
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
can not be allowed to take any benefitheld-intentional concealment of relevant
facts
cancellation
of
selection
held
proper.

Held: Para 4

In this view of the matter, it is the marks
of the high school exams of 1995 and the
Intermediate exams of 2005 combined,
as contemplated under the Government
Order
dated
10.10.2005,
that
a
calculation has to be made and not on
the basis of the high school examination
that the petitioner passed out in the year

## Text

3 All] Ajai Kumar Mishra V. D.M., Fatehpur and others
873
newspaper, and therefore, there has been
violation of Section 16 E (2) of Act, 1921.

23. So far as the plea of the
petitioner qua the impugned order being
in violation of principles of natural
justice, is concerned, this Court is of the
considered opinion that for the facts and
reasons recorded and for the legal
principles as noticed herein above, only
one view is possible in the facts of the
present case. The factual issue raised by
the Committee of Management need not
be gone into any further. This Court is of
the considered opinion that the plea of
violation of principles justice as raised by
the learned counsel for the petitioner is
futile, inasmuch as non-compliance of the
statutory provisions qua appointment
claimed are admitted on records.

24. So far as the last but one plea
raised by the learned counsel for the
petitioner, is concerned, this Court may
only provide that if any other appointment
has been made contrary to the statutory
provisions applicable, it is left open for
the petitioner to make a representation,
ventilating all his grievances, supported
by such documents, as he may be advised
before the Director, Secondary Education,
U.P. Lucknow qua such appointees along
with a certified copy this judgement. On
such representation being made the
Director shall call for the records and
after affording opportunity of hearing to
the parties concerned, shall pass a
reasoned speaking order, within 8 weeks
thereafter.

25. It is needless to emphasise that
petitioner cannot claim any negative
equality, inasmuch as if appointment as
alleged by the petitioner qua other
teachers are illegal, he cannot be
permitted to obtain an order from this
Court
that
the
same
illegality
be
perpetuated by granting relief prayed for
by the petitioner.

26. So far as the last point issue on
behalf of the petitioner is concerned, this
Court feels that the issue has become
more or less infructuous, in view of the
conclusions arrived at on admitted facts
on issues nos. a to c.

27. The present writ petition is
therefore, dismissed. No orders as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No.52816 of 2009

Ajai Kumar Mishra

...Petitioner
Versus
District Magistrate, Fatehpur and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashutosh Mishra
Sri Indra Raj Singh

Counsel for the Respondents:
Sri Ravi Shankar Prasad
S.C.

Constitution
of
India
Article
226
Cancellation of appointment of Shiksha
Mitra-petitioner
passed
High
School
Examination in the year 1988-again
appeared in High School Examination
1995 and the Intermediate examination
in 2005-on aggregate of marks of High
School
88,
and
Intermediate
examinations got selected- once the
petitioner himself forgo 88 examination-
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
can not be allowed to take any benefitheld-intentional concealment of relevant
facts
cancellation
of
selection
held
proper.

Held: Para 4

In this view of the matter, it is the marks
of the high school exams of 1995 and the
Intermediate exams of 2005 combined,
as contemplated under the Government
Order
dated
10.10.2005,
that
a
calculation has to be made and not on
the basis of the high school examination
that the petitioner passed out in the year
1988. The Government Order clearly
prescribes that the marks have to be
calculated on the basis of the aggregate
marks of the high school and the
intermediate examinations. As pointed
out
herein
above,
the
intermediate
examination which have been passed by
the petitioner can be co-related to the
high school examination of 1995 only
and not to the high school examination
of 1988.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Shri Indra Raj Singh,
learned counsel for the petitioner, Shri
Ravi Shankar Prasad for the respondent
no. 4-U.P. Basic Education Board and the
learned standing counsel for the State.

2. Shri Indra Raj Singh contends that
the impugned order dated 24.08.2009
proceeds on an erroneous assumption of
fact, inasmuch as, the petitioner has been
rightly selected on the basis of marks
obtained by him in the High School
examination, in which he had appeared in
the year 1988. It is urged that the
petitioner's marks of the high school
examination therefore had been rightly
calculated along with the marks of his
Intermediate examination by the Gram
Shiksha Samiti while considering the
candidature
of
the
petitioner
for
appointment
as
Shiksha
Mitra.
He
contends
that
the
impugned
order
deserves to be set aside as there was no
occasion for the District Magistrate,
Fatehpur to proceed ex-parte against the
petitioner and pass the impugned order on
the strength of report available relating to
the two mark sheets of the petitioner of
High School Examination.

3. I have perused the impugned
order and also the averments contained in
the writ petition. The petitioner has not
disputed the fact of having attempted the
high school examination for a second time
in the year 1995. In the said examination
the petitioner had obtained only 266
marks out of 600 as against the marks
obtained by him earlier in the year 1988.
The petitioner did not apply for appearing
in the intermediate examination on the
strength of the high school mark sheet of
1988. On the contrary, the petitioner
applied and appeared in the Intermediate
examination of 2005 on the strength of his
high school examination of 1995. This
fact has not been disputed before this
Court. It is therefore evident that the
petitioner was able to succeed in the
Intermediate examination only upon his
having attempted the examination having
been allowed to appear in the same on the
strength of the high school mark sheet
obtained in the year 1995.

4. In this view of the matter, it is the
marks of the high school exams of 1995
and the Intermediate exams of 2005
combined, as contemplated under the
Government Order dated 10.10.2005, that
a calculation has to be made and not on
the basis of the high school examination
that the petitioner passed out in the year
1988. The Government Order clearly
prescribes that the marks have to be
3 All] Smt. Mamta Srivastava V. State of U.P. and others
875
calculated on the basis of the aggregate
marks of the high school and the
intermediate examinations. As pointed out
herein
above,
the
intermediate
examination which have been passed by
the petitioner can be co-related to the high
school examination of 1995 only and not
to the high school examination of 1988.

5. In this view of the matter, the
impugned order does not deserve any
interference as the petitioner himself has
not disputed the facts aforesaid.

6.

Since
the
petitioner
had
deliberately not disclosed the facts of the
results of High School in 1995 the same
having been discovered by the authorities
disentitles the petitioner from seeking any
appointment on the post in question.

7. Accordingly the writ petition
lacks merit and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 52316 of 2009

Smt. Mamta Srivastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.S. Verma
Sri Narendra Mohan

Counsel for the Respondents:
Sri R.S. Prasad
Sri D.D. Chauhan
S.C.

Constitution
of
India-
Article
226-
Appointment
of
Shiksha
Mitra
Challenged made on ground the village
Pradhan
is
'Chachia
Sas'
of
R.5
restriction
made
in
clause
3
of
9.0.1.7.2000- R 7 disqualify for being
appointed- held disruption given in G.O.
Can not be enlarged by the court-
petition misconceived dismissed.

Held: Para-4

The pronouncement of this Court in the
case of Gyan Pratap Singh Vs. State of
U.P. and others reported in 2005 (2) ESC
1199 and in the case of Sher Singh Vs.
State of U.P. and others reported in 2006
(1)
ESC
4
support
the
aforesaid
conclusion
drawn
by
the
Court.The
Government Order under consideration
was presumably brought about to clarify
the meaning of the word 'relative' as the
earlier Government Order on the subject
issued in the year 1999 was subjected to
challenge
the
validity
whereof
was
upheld by this Court in the decision
reported in 2002 (4) AWC 3065 Rashmi
Dwivedi Vs. State of U.P. and others.
Case law discussed:
2005(2)ESC 1199
2006(1) ESC 4
2002(4) AWC 3065

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Shri Narendra Mohan,
learned counsel for the petitioner, Shri
R.S. Prasad, learned counsel for the
respondent no. 5, learned counsel for the
Gaon Sabha and the learned standing
counsel.

2. The contention raised on behalf of
the petitioner is that the respondent no. 7Smt. Arti cannot be appointed as Shiksha
Mitra on the post in question, inasmuch
as, she happens to be a relative of the
Gram
Pradhan
and
is
therefore
disqualified in terms of Clause 3 of the
government Order dated 1st July, 2000. It