# Atul Kumar Singh v. State of U.P

- **Citation:** Service Single No. 343 of 1999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-24
- **Case number:** Service Single No. 343 of 1999
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atul-kumar-singh-v-state-of-u-p-46482
- **Pages:** 14

## Headnote

(A) Civil Law- U.P. Recognized Basic
Schools (Junior High School) (Recruitment
and Condition of Service of Ministerial
Staff and Group 'D' Employees) Rules,
1984- Appointment - Rule 4 of - minimum
qualification given for selection on the
post of Clerk - minimum speed of 30
words per minute in Hindi typewriting is
required - not holding "Type Test" vitiates
the selection process - recommendation of
Selection Committee in favour of the
petitioner to the respondent no. 3 is in
itself nullity being de hors the Rules -
consequent
appointment
by
the
respondent no. 4 is also nullity

(B) Pleadings - in response to the
averments in the counter affidavit filed
by the respondents - no rejoinder
affidavit was filed by the petitioner -
averments in the counter affidavit are
treated as correct

(C) Burden of proof - plaintiff has to
prove his own case - cannot succeed on
the weakness of defence

Writ Petition Rejected. (E-10)

List of cases cited:

## Text

_Characters 0–39,730 of 47,555. This is a partial read: ask again with offset=39730 for what follows._

752 INDIAN LAW REPORTS ALLAHABAD SERIES
dedicated properties are a means to
preserve the religious heritage which is
inclusive of deity worship of Lord
Hanuman unlike in Islam, Christianity or
Judaism. A temple constructed for worship
by all without there being any intention of
receiving offerings from worshipers to
maintain
the
same
is
strongly
a
circumstance that supports the case of the
respondents. Therefore, this Court is of the
considered opinion that the trust deed under
consideration
essentially
constitutes
a
private Religious Endowment Trust, hence
the impugned judgment/order passed by the
court below refusing to grant leave under
Section-92 CPC for want of elaborate
discussion does not suffer from any
illegality in the eyes of law.

22. The appeal is accordingly
dismissed.
----------
(2020)03-05ILR A752
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2020

BEFORE
THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 343 of 1999

Atul Kumar Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Kapil Deo, , Abhishek Yadav, Ashwani
Kumar, G.L. Yadav

Counsel for the Respondent:
Amarjeet Kaur, C.S.C., I.H. Farooqui, R.K.
Katiyar, Rakesh Kumar Tiwari, Shobhit
Mohan Shukla, Vikash Singh

(A) Civil Law- U.P. Recognized Basic
Schools (Junior High School) (Recruitment
and Condition of Service of Ministerial
Staff and Group 'D' Employees) Rules,
1984- Appointment - Rule 4 of - minimum
qualification given for selection on the
post of Clerk - minimum speed of 30
words per minute in Hindi typewriting is
required - not holding "Type Test" vitiates
the selection process - recommendation of
Selection Committee in favour of the
petitioner to the respondent no. 3 is in
itself nullity being de hors the Rules -
consequent
appointment
by
the
respondent no. 4 is also nullity

(B) Pleadings - in response to the
averments in the counter affidavit filed
by the respondents - no rejoinder
affidavit was filed by the petitioner -
averments in the counter affidavit are
treated as correct

(C) Burden of proof - plaintiff has to
prove his own case - cannot succeed on
the weakness of defence

Writ Petition Rejected. (E-10)

List of cases cited:

1. Ravindra Pratap Yadav @ Mahajan Vs. St.
of U.P. & ors. 2004 (22) LCD 1445 (followed)

2. Yogesh Kumar Vs. Govt. of NCT Delhi &
ors. (2003) 3 SCC 548(followed)

3. Mohd. Sartaj Vs. St. of U.P. (2006) 2 SCC
315(followed)

4. Sushil Kumar Dwivedi Vs/. Basic Siksha
Adhikari,
Banda
(DB)
(2003)
2
UPLBEC
1216(followed)

5. Mamta Mohanty (not fully cited) (followed)

6.
St. of Karnataka Vs. KGSD Canteen
Employees
Welfare
Ass.
(2006)
1
SCC
5667(followed)

7. St. of Manipur Vs. Y Token Singh (2007) 5
SCC 65(followed)

8. Pramod Kumar Vs. U.P. Secondary Education
Services Commission & ors. (2008) 7 SCC
153(followed)
3-5 All. Atul Kumar Singh Vs. State of U.P.
753
9. Regional Manager, C.B.I. Vs. Madhulika
Guruprasad Dahir & ors. (2008) 13 SCC
170(followed)

10. Gadde Venkateshwara Rao Vs. Govt. of A.P.
AIR 1966 SC 828(followed)

11. Maharaja Chintamani Saran Bath Shahdeo
Vs. St. of Bihar (1999) 8 SCC 16: AIR 1999 SC
3609: 1999 AIR SCW 3623(followed)

12. M.C. Mehta Vs. UOI (1999) 6 SCC 237: AIR
1999 SC 2583(followed)

13. Mallikarjuna Mudhagal Nagappa Vs. St. of
Karn. (2000) 7 SCC 238: AIR 2000 SC 2976:
2000 AIR SCW 3289(followed)

14. Chandra Singh Vs. St. of Raj. (2003) 6 SCC
545: AIR 2003 SC 2889: 2003 AIR SCW
3518(followed)

15. Raj Kumar Soni Vs. St. of U.P. (2007) 10
SCC 635(followed)

16. Sachchida Nand Chaturvedi Vs. St. of U.P.
2019 (6) ADJ 189 (followed)

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
petitioner, learned Standing Counsel Sri
Gyanendra Srivastava, Sri Shobhit Mohan
Shukla for respondent nos.2 and 3, Sri
Vikas Singh for respondent no.4.

2. In the present writ petition, the
following main reliefs have been sought:-

"(A) A writ, order or direction in
the nature of Mandamus commanding the
opposite parties to treat the petitioner
having been approved by the District Basic
Shiksha Adhikari, Sitapur and to allow him
all benefits arising out of appointment on
the post of Clerk including payment of
salary etc.

(B) A writ, order or direction in
the nature of Mandamus commanding the
Accounts Officer of District Basic Shiksha
Adhikari, Sitapur to pass salary bill in
respect of the petitioner without any
objection treating the petitioner to have
been duly approved by the District Basic
Shiksha Adhikari, Sitapur.

(B)(i) Issue a writ, order or
direction in the nature of Certiorari
quashing the order dated 21.11.1998
passed by the opposite party no.2, B.S.A.,
Sitapur which is annexed as CA-1 with the
counter affidavit."

3. After filing of the counter affidavit
by the opposite party no.2, the order dated
21.11.1998
has
been
challenged
by
amending the writ petition.

4. By the order dated 21.11.1998,
under issue, the respondent no.2 District
Basic
Education
Officer,
Sitapur,
(hereinafter
referred
to
as
"BSA"),
cancelled the selection process/interview
wherein the petitioner was selected for the
post of Clerk, the effect of which is that the
BSA disapproved the appointment of the
petitioner made by respondent no.4Manager, Sri Dharwal Devi Vidya Mandir,
Madhyamik Vidyalaya, Dharauli, District
Sitapur, (in short "Institution") on the post
of
"Clerk".
The
main
ground
for
cancellation of selection process/interview
and
disapproving
the
proposal
of
appointment of the petitioner made by the
Institution on the post of Clerk is that the
"'Type Test", as required under Rule 4 of
the Rules of 1984 namely the U.P.
Recognized Basic Schools (Junior High
School) (Recruitment and Condition of
Service of Ministerial Staff and Group 'D'
Employees) Rules, 1984, was not held
during the selection process.

5. Brief facts of the case are to the
effect that the respondent no.4 sent the
754 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant documents vide letter dated
15.06.1998 to the respondent no.2-BSA. It
was with regard to seeking permission to
fill up the vacancy of Clerk, which came
into existence on account of death of one
Sri Mahesh Prasad, who was working on
the post of Clerk in the Institution.
Thereafter, vide letter dated 24.08.1998,
BSA accorded the permission and in
furtherance thereof, an advertisement dated
24.09.1998
was
published
in
daily
newspaper "Dainik Jagran" for making
recruitment on the post of Clerk in the
Institution.
Pursuant
to
the
the
advertisement dated 24.09.1998, petitioner
along with other candidates applied for the
post in issue i.e. Clerk. The selection was
held on 25.10.1998 by the duly constituted
Selection
Committee
comprising
of
Manager, Principal and nominee of BSA.
The petitioner was selected in the selection
process and thereafter relevant documents
including the select list was sent for
approval of BSA vide letter of respondent
no.4 dated 28.10.1999.

6. Thereafter, in absence of any
response from the BSA on the select list
within one month, the Committee of
Management of the Institution approved
recommendation of Selection Committee
and appointment order dated 29.11.1998
was issued by the respondent and pursuant
to the same the petitioner joined on the post
of Clerk on 03.12.1998.

7. After considering the relevant
documents, respondent no.2-BSA cancelled
the selection process/interview held for
selecting the candidate for the vacant post
of Clerk in the Institution, the effect of
which is that the BSA disapproved the
appointment of the petitioner and the
decision was duly communicated to the
respondent
no.4
vide
letter
dated
21.11.1998, Annexure No.1 to the Counter
Affidavit dated 05.05.1991 filed on behalf
of opposite party nos. 2 and 3. The letter
dated
21.11.1998,
as
stated
by
the
respondent
no.4,
was
received
by
respondent no.4 on 06.12.1998.

8. The appointment of the petitioner
was disapproved on the ground that during
selection process 'Type Test' was not held.

9. For the purposes of reliefs sought
in the writ petition as also assailing the
order dated 21.11.1998, learned counsel for
the
petitioner
submitted
that
it
is
unsustainable in the eye of law keeping in
view the provisions of Rule 15 particularly
Sub Rule 5(iii) and Rule 16 of the Rules of
1984.

10. Elaborating his arguments, the
learned counsel for the petitioner further
submitted
that
the
Committee
of
Management-respondent no.4 sent the
relevant
documents
for
approval
of
proceedings of Selection Committee dated
25.10.1998 including the select list wherein
the name of petitioner find place and he
was selected Selection Committee, duly
constituted, before the respondent no.2BSA vide letter dated 28.10.1998 and on
the proposal of appointment of petitioner
the decision ought to have been taken by
the BSA within a month from the date of
receipt of the letter dated 28.10.1998, as
required under Rule 15 of the Rules of of
1984, which was not taken in the said time
nor any decision was communicated by
BSA to respondent no.4 within the said
time and in absence of any decision or
communication within statutory period
provided under Rule 15 of the Rules of
1984,the
Committee
of
Managementrespondent no.4, taking into consideration
of provision as envisaged in Rule 15(5)(iii),
3-5 All. Atul Kumar Singh Vs. State of U.P.
755
issued
the
appointment
order
dated
29.11.1998 to the petitioner. Rule 15(5)(iii)
provides
deemed
approval
of
recommendation made by the Selection
Committee if any decision thereon is not
communicated by BSA within one month
from the date of receipt of paper/select list.
Pursuant to the appointment order dated
29.11.1998 the petitioner joined on the post
in question on 03.12.1998.

11. It is further submitted that the
order dated 21.11.1998, whereby the
appointment of petitioner was disapproved,
was served in the office of respondent no.4Committee of Management of college on
06.12.1998, is antedated and prior to
service of order dated 21.11.1998 the
appointment of the petitioner was made on
the post in issue i.e. Clerk. Thus, keeping in
view provisions as envisaged in Rule 15
and 16 of the Rules of 1984 and facts of the
case including the fact that appointing
authority of the petitioner is Management
of
the
Institution
the
order
dated
21.11.1998 is unsustainable.

12. Learned counsel for the petitioner
further submitted that the impugned order
dated 21.11.1998 passed by the respondent
no.2-BSA whereby he disapproved the
appointment of petitioner and cancelled the
Selection
Process/Interview
related
to
appointment of petitioner on the ground
that no "Type Test" was held in the
selection process is also unsustainable in
view of the fact that the "Type Test" was
held
and
thereafter
the
Selection
Committee recommended the name of the
petitioner for providing appointment on the
post in issue i.e. Clerk and on the basis of
recommendation
of
the
Selection
Committee as also keeping in view the
provisions of Rule 15 of Rules 1984 the
appointment of petitioner was made by the
respondent no.4 vide appointment order
dated 29.11.1998. It is also stated that the
respondent no.2 has no power to cancel the
appointment of the petitioner, who was
appointed against Group-C post, as the
appointing authority of the petitioner is
Committee of Management and not the
respondent no.2-BSA. In this regard,
reliance has been placed on paras 26(i) to
26(v) of the amended Writ Petition as also
on the order dated 21.11.1998.

13. Lastly it is stated by the learned
counsel for the petitioner that prior to
passing of order dated 21.11.1998 no
opportunity of hearing was given to the
petitioner and as such the order dated
21.11.1998, on this ground, is liable to be
interfered by this Court.

14. In view of aforesaid, the prayer is
to allow the writ petition and quash the
impugned order dated 21.11.1998.

15. Per contra, learned counsel for the
respondent no.2-BSA, Sri Shobhit Mohan
Shukla on the basis of counter affidavit
submitted that the writ petition for the
reliefs sought is liable to be dismissed.
Elaborating his argument, it is stated that as
per the Rule 4 of Rules 1984, which is
applicable in the instant case and not
disputed by learned counsel for the
petitioner, the 'Type Test', which was
necessary for providing appointment on the
post in issue i.e. Clerk, was not held and
accordingly selection process was dehors
the Rules and as such is nullity and taking
into account the same the Selection
Process/Interview was cancelled. It is also
stated that on the basis of vitiated selection
process appointment given to petitioner is
also nullity as it is settled proposition of
Law that an appointment dehors the Rules
is nullity.
756 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In support of his contention to the
effect that "Type Test" was not held in the
selection/recruitment process, the learned
counsel for the respondent no.2-BSA
placed reliance on para 26 & 29 of the
counter affidavit dated 19.01.2020 filed in
response to the amended writ petition,
which on reproduction reads as under:-

"26. That the averments made in
paragraphs 26(i) to 26 (iii) of the writ
petition are vehemently denied. In this
regard, it may be stated that vide a letter
dated 28.12.1998 bearing No.3875/98-99
the Manager of the Institution was
informed in reference to the letter dated
03.12.1998 that type test was not taken in
utter derogation to the Rules. True copy of
letter dated 28.12.1998 is being annexed
herewith as Annexure No.CA-3 to this
affidavit.

29. That it would not be out of
place to mention here again that after the
interview held on 25.10.1998 complaints
were made which received in the office of
the answering opposite party no.2 on
29.10.1998. The facts of the complaints
were inquired into and found to be correct
inasmuch as various irregularities were
committed in the interview held on
25.10.1998. In these circumstances it was
quite necessary to maintain the fairness
and
legality
in
the
selection
and
appointment to cancel the unfair and
irregular selection held on 25.10.1998.
Accordingly the answering opposite party
no.2 vide his order dated 21.11.1998
cancelled the selection dated 25.10.1998
and intimated the opposite party no.4, but
the opposite party no.4 ignoring the order
of the opposite party no.2 dated 21.11.1998
issued
the
appointment
letter
dated
29.11.1998 to petitioner which is absolutely
illegal and invalid. The answering opposite
party no.2 again vide his letter dated
28.12.1998 (Annexure CA-3) apprised the
opposite party no.4 that the appointment of
the petitioner on the post of Clerk made by
him is invalid. But one of the orders of the
opposite party no.2 were complied with.

17. On the basis of the averments
made in the counter affidavit dated
19.01.2020, Sri Shobhit Mohan Shukla
further submitted that in response to the
counter affidavit, no rejoinder affidavit has
been filed and as such in view of
observation made by the Division Bench of
this Court in para 5 of the judgment
reported in 2004 (22) LCD 1445 (Ravindra
Pratap Yadav @ Mahajan Vs. State of U.P.
& Ors.) the averments made in counter
affidavit to amended Writ Petition filed by
respondent nos.2 and 3 are liable to be
treated as correct and in view of the same
the admitted position is that no "Type Test"
was
held,
which
is
mandatory
and
accordingly neither the selection process
nor the appointment of petitioner is legally
sustainable. The relevant part of the
judgment reads as under:-

"5. Various others allegations
have been made in the writ petition but in
our opinion it is not necessary for us to go
into same in view of the allegations in the
counter-affidavit of the Nagar Nigam,
Allahabad, respondent No. 4 to which no
rejoinder affidavit has been filed and hence
these allegations in the counter-affidavit
have to be treated as correct."

18. On the basis of the documents
annexed to the rejoinder affidavit dated
27.09.1999, Sri Shobhit Mohan Shukla,
learned counsel for the respondent no.2BSA further stated that on perusal of the
same it is crystal clear that the "Type Test"
was not held and only interview was held
and thereafter the name of petitioner was
3-5 All. Atul Kumar Singh Vs. State of U.P.
757
recommended for providing appointment
on the post in issue i.e. Clerk.

19. It is stated that in absence of type
test, which is mandatory as per Rule 4 of
Rules of 1984 the recommendation for
appointment of petitioner on the post in
issue i.e. Clerk in the office of respondent
no.4 is void ab initio and nullity and being
so appointment of petitioner is also nullity
and keeping in view same as well as the
principle laid down by the Hon'ble Apex
Court and by this Court to the effect that
issuance of a writ or quashing/setting aside
of an order if revives another illegal order
then in that eventuality the writ court
should not interfere in the matter on any
ground including the ground of failure to
follow the principle of Natural Justice. The
writ petition for relief sought is liable to be
dismissed.

20. In regard to the decision taken by the
respondent no.2-BSA dated 21.11.1998 Sri
Shobhit Mohan Shukla submitted that the
decision was taken, within time as prescribed
under Rule 15 of Rules 1984 and accordingly
the
appointment
of
the
petitioner
is
unsustainable in the eye of law and in view of
the same, the petitioner is not entitled to any
benefit of Rule 15(5)(iii) of the Rules 1984.

21. On the basis of the affidavits on
record, the learned counsel for Committee of
Management-respondent no.4, Sri Vikas Singh,
stated that the petitioner was a trained "Typist"
from Khanna Commercial College, Alambagh,
Lucknow, U.P. which is a recognized institute,
as appears from the record, and taking into
account the said fact, it appears that the
appointment of the petitioner was made by the
respondent no.4.

22. On query made to the learned counsel
for the respondent no.4, Sri Vikas Singh,
specifically on the issue of "Type Test", it has
been stated that it appears that "Type Test" was
not held and all the candidates who were before
the Selection Committee participated in the
selection process and they were interviewed
and thereafter the select list was prepared. It is
further stated that in the short counter affidavit
dated 22.09.1999 as also in the detailed counter
affidavit dated 19.12.2010 filed by the
Committee of Management-respondent no.4 it
has not been specifically stated that the "Type
Test" was held.

23. Heard learned counsel for the parties
and perused the record.

24. Admitted facts of the present case, as
appears from the pleadings and documents on
record, are to the effect that the selection
process was initiated for making recruitment/
appointment on the post of Clerk, which fell
vacant on account of death of incumbent of the
post, on 24.09.1998 (the date of advertisement).
The advertisement was published after due
permission of BSA vide letter dated 24.08.1998.
The advertisement was published in daily
newspaper "Dainik Jagran". In response to the
advertisement 26 candidates applied for one
post of Clerk in the Institution and 17 appeared
in the Selection Process. The duly constituted
Selection
Committee
considered
the
candidature of 17 candidates and being found
suitable, the name of the petitioner was
recommended by the Selection Committee for
providing appointment on the post in issue i.e.
Clerk.

25. The relevant records for the
purposes of giving approval to the
recommendation of Selection Committee
and providing appointment to the petitioner
was sent by the respondent no.4 vide letter
dated
28.10.1998.
The
letter
dated
28.10.1998
sent
by
Committee
of
Management-respondent no.4 was duly
758 INDIAN LAW REPORTS ALLAHABAD SERIES
replied by respondent no.2-BSA vide letter
dated
21.11.1998.
Vide
letter
dated
21.11.1998 the selection process which
includes recommendation of Selection
Committee for providing appointment to
the petitioner on the post of Clerk was
cancelled on the ground to the effect that
the "Type Test" was not held during
selection process.

26. On the issue of "Type Test" in the Writ
Petition it has not been stated that "Type Test"
was held on 25.10.1998, the date on which
selection was held. It appears further from the
contents of the para 7 of the short counter
affidavit filed by respondent no.4-Committee of
Management dated 22.09.1999, which on
reproduction reads as under, that no "Type Test"
was held for the purpose of appointment on the
post in issue i.e. Clerk.

"7. That since the petitioner was a
trained typist from Khanna Commercial
College which is recognized institution from the
State Government and the petitioner was
having requisite typing speed which was also
confirmed and the petitioner was selected as
per provisions of the above said rule, 1984 and
a copy of the typing certificate is being filed
herewith as Annexure No.-C-3 to this counter
affidavit."

27. It is also evident from the documents
annexed as Annexure No.R-1 to the rejoinder
affidavit dated 27.09.1999 and the averments
made therein as also from Annexure No.7 to the
writ petition that no "Type Test" was held prior
to making recommendation for providing
appointment to the petitioner by the Selection
Committee on the post of Clerk in the
Institution.

28. In view of the aforesaid as well as
keeping in view specific averments made in
paras 26 and 29 of the counter affidavit dated
19.01.2020, quoted above, not refuted by filing
the rejoinder affidavit and in view of the law
laid down by this Court in the case of Ravindra
Pratap Yadav (Supra) the same are liable to be
treated as correct, this Court is of the view that
"Type Test" was not held prior to making
recommendation for providing appointment to
the petitioner on the post in issue i.e. Clerk by
the Selection Committee.

29. The Rule 4 of Rules 1984, which is
quoted
below,
specifically
provides
the
Minimum Qualification for the post of Clerk.
The Rules of 1984 are admittedly applicable in
the Institution. According to Rule 4 of Rules of
1984 a person having certificate of Intermediate
Examination of the Board of High School and
Intermediate Examination, Uttar Pradesh, or
equivalent examination (with Hindi) and a
minimum speed of 30 words per minute in
Hindi Type Writing can be appointed on the
post in issue i.e. Group -C post/post of Clerk.

30. Rule 4 of Rules of 1984 reads as
under:-

"4. Minimum Qualification:-(1)
The minimum qualifications for the post of
clerk shall be Intermediate Examination of
the Board of High School and Intermediate
Education, Uttar Pradesh, or equivalent
examination (with Hindi) and a minimum
speed of 30 words per minute in Hindi
typewriting.

(2) The minimum qualification for
the post of a Group 'D' employee shall be
Class V from an institution recognized by
the Government of Uttar Pradesh or
equivalent examination with Hindi."

31. Admittedly 17 persons appeared
before the Selection Committee and to
select the best amongst them as also to
ascertain that a candidate is having
minimum speed of 30 words per minute in
3-5 All. Atul Kumar Singh Vs. State of U.P.
759
Hindi Typewriting the "Type Test" was
required, which as per record was not held.
In addition, taking into account the Rule 4
of Rules of 1984, this Court is of the view
that for fair and impartial selection the
"Type Test" was/is mandatory and not
holding the "Type Test" would vitiate the
selection process.

32. At this stage, it is stated by the
learned counsel for the petitioner that the
side opposite (respondent nos.1 to 4) have
failed to prove the fact that the "Type Test"
was
not
held
on
25.10.1998
and
accordingly benefits should be given to the
petitioner.

33. In regard to the aforesaid, it is relevant
to point out that it is settled principle of law that
plaintiff has to prove his own case and he can
not succeed on the weakness of defense and the
petitioner herein has failed to prove the fact, on
the basis of pleadings and documents on record
particularly documents annexed as Annexure
R-1 to the rejoinder affidavit dated 27.09.1999
and Annexure No.7 to the writ petition, that the
"Type Test" in selection process was held and
thereafter
the
Selection
Committee
recommended the name of petitioner.

34. In view of aforesaid, this Court is of
the view that the recommendation of Selection
Committee and appointment of the petitioner
made by the respondent no.4-Committee of
Management vide appointment order dated
29.11.1998, in absence of "Type Test", both
were/are de-hors the Rules and being so are
nullity and void ab initio and accordingly the
petitioner has no right to hold the post nor he is
entitled to continue on the post nor he is entitled
to salary from the State-Exchequer.

35. The Supreme Court in Yogesh Kumar
vs. Government of NCT Delhi and others
(2003) 3 SCC 548 held that appointment has to
be strictly as per statutory rules. A person not
possessing
requisite
qualification
and
appointment made dehors of the rules without
following procedure, the appointment is illegal
since inception, nonest, nullity and no legal
right to continue or right over the post and
length of continuous service of such illegal
appointment will not help the petitioner.

36. Vide Mohd. Sartaj vs. State of U.P.
(2006) 2 SCC 315, Sushil Kumar Dwivedi vs.
Basic Shiksha Adhikari, Banda (DB) (2003) 2
UPLBEC 1216, in Mamta Mohanti case
(supra) and Mohd. Sartaj case (Supra),
Committee of Management vs. State of U.P.
(DB) (2009) 2 ALJ 528 it was held that in case,
approval is granted by the authority to a person
who lacks qualification then it is a serious lapse
on the part of the authority, justifying suitable
disciplinary action against such careless and
negligent authorities. Illegal appointments
cannot be regularized. There is a distinction
between irregularity and illegality. Irregularity
can be regularized but not illegality.

37. In State of Karnataka vs. KGSD
Canteen Employees Welfare Ass. (2006) 1
SCC 567, Mamta Mohanty case (Supra)
and Sushil Kumar Dwivedi case (Supra) it
was held that any action of an officer or
authority of the State which is contrary to
law, as in the facts of the present case
approval granted by the B.S.A. in spite of
the fact that the petitioners were not
qualified and there was no sanctioned
posts, such approval cannot bind the State
to pay the salary from the State Exchequer
(refer; State of Manipur vs. Y Token Singh
(2007) 5 SCC 65).

38. In Pramod Kumar vs. U.P.
Secondary Education Services Commission
and others (2008) 7 SCC 153 Supreme
Court held mandamus can be sought when
there is a legal right and corresponding
760 INDIAN LAW REPORTS ALLAHABAD SERIES
duty upon the State Agency. Petitioners
who did not possess valid degree held had
no right to appointment and, therefore,
could not seek mandamus.

39. In Regional Manager, Central
Bank of India vs. Madhulika Guruprasad
Dahir and others (2008) 13 SCC 170
Supreme
Court
held
that
a
person
appointed against a reserved post for S.T.
against forged social status certificate
cannot upon termination claim to be
retained merely on the ground that he has
worked for over 20 years.

40. With regard to the other pleas
taken by the learned counsel for the
petitioner for interfering in the matter and
allowing the writ petition, which are to the
effect that opportunity of hearing was not
given to the petitioner prior to passing of
order dated 21.11.1998 and the respondent
no.2-BSA has no power to cancel the
appointment of petitioner, are concerned
this Court is of the view that on the said
grounds the interference in the matter is not
required. It is in view of the principle to the
effect
that
issuance
of
a
writ
or
quashing/setting aside of an order if revives
another pernicious or wrong or illegal order
then in that eventuality the writ court
should not interfere in the matter and
should refuse to exercise its discretionary
power conferred upon it under Article 226
of the Constitution of India. The writ court
should not quash the order if it revives a
wrong or illegal order. Vide : Gadde
Venkateswara Rao v. Government of
Andhra Pradesh, AIR 1966 SC 828;
Maharaja Chintamani Saran Nath Shahdeo
v. State of Bihar, (1999) 8 SCC 16: AIR
1999 SC 3609: 1999 AIR SCW 3623; M.C.
Mehta v. Union of India, (1999) 6 SCC
237: AIR 1999 SC 2583; Mallikarjuna
Mudhagal Nagappa v. State of Karnataka,
(2000) 7 SCC 238: AIR 2000 SC 2976:
2000 AIR SCW 3289; and Chandra Singh
v. State of Rajasthan, (2003) 6 SCC 545:
AIR 2003 SC 2889: 2003 AIR SCW 3518
and Raj Kumar Soni v. State of U.P., (2007)
10 SCC 635.

41. By the Order in issue dated
21.11.1998 the respondent no.2-BSA has
cancelled/disapproved
the
selection
process/interview wherein the petitioner was
selected for the post of Clerk in the Institution
on the ground that "Type Test" was not held
during selection process. As the "Type Test"
was not held, which was required as per Rule 4
of the Rules of 1984, quoted above, this Court
is of the view that the recommendation of
Selection Committee in favour of petitioner
itself is nullity being dehors the Rules and being
so the consequent appointment of the petitioner
vide order dated 29.11.1998 on the post of
Clerk made by Committee of Management
(Manager)-respondent no.4 is also nullity and
therefore taking into consideration the above
stated legal proposition the cancellation thereof
can not be interfered on the ground that no
opportunity of hearing was given to the
petitioner prior to passing of order dated
21.11.1998 as also on the ground that BSA,
being not the appointing authority, has no
power to cancel the appointment of petitioner.

42. In the judgment dated 14.05.2019
passed in the case of Sachchida Nand
Chaturvedi Vs. State of U.P. reported in
2019(6) ADJ 189, this Court, on being found
that the promotion order is nullity, decline to
interfere in the matter. The relevant portion of
the judgment reads as under:-

"28. Now both the aspects,
whether an appointment made by a person
holding charge of the Office only can be
valid and whether if such appointment is
illegal then principles of natural justice
3-5 All. Atul Kumar Singh Vs. State of U.P.
761
will apply or not, has been considered in a
recent decision of Supreme Court in Union
of India and another v. Raghuwar Pal
Singh, MANU/SC/0240/2018 : (2018) 15
SCC 463, wherein it was held that a person
looking after charge/duties of Office, could
not
discharge
statutory
power
of
appointment to Group 'C' or Group 'D'
post. In fact even the question of
applicability of principles of natural justice
in such case where appointment has not
been made by Competent Authority in
accordance with Rules, which requires
prior approval, has been considered in
Raghuwar Pal Singh (supra), and it has
been held that appointment de hors the
Rules is nullity, hence, even principles of
natural justice are not applicable in such
cases. Paras 16 and 17 of judgment reads
as under:

"16. We shall now consider the
efficacy of the reason so recorded in the
office order. The recruitment procedure in
relation
to
the
post
of
Veterinary
Compounder is governed by the statutory
Rules titled 'Central Cattle Breeding Farms
(Class III and Class IV posts) Recruitment
Rules, 1969, as amended from time to time
and including the executive instructions
issued in that behalf. As per the stated
dispensation for such recruitment, the
appointment letter could be issued only by
an authorised officer and after grant of
approval by the competent authority.
Nowhere in the Original Application filed
by the Respondent, it has been asserted that
such prior approval is not the quintessence
for issuing a letter of appointment.

17. For taking this contention
forward, we may assume, for the time
being, that the then Director Incharge H.S.
Rathore, Agriculture Officer had the
authority to issue a letter of appointment.
Nevertheless, he could do so only upon
obtaining prior written approval of the
competent authority. No case has been
made out in the Original Application that
due approval was granted by the competent
authority before issue of the letter of
appointment to the Respondent. Thus, it is
indisputable that no prior approval of the
competent authority was given for the
appointment of the Respondent. In such a
case, the next logical issue that arises for
consideration is: whether the appointment
letter issued to the Respondent, would be a
case of nullity or a mere irregularity? If it
is a case of nullity, affording opportunity to
the incumbent would be a mere formality
and non grant of opportunity may not
vitiate the final decision of termination of
his services. The Tribunal has rightly held
that in absence of prior approval of the
competent authority, the Director Incharge
could not have hastened issuance of the
appointment letter. The act of commission
and omission of the then Director Incharge
would, therefore, suffer from the vice of
lack of authority and nullity in law."

29. Court also relied on its
earlier judgment in Kendriya Vidyalaya
Sangathan and others v. Ajay Kumar Das
and others, MANU/SC/0385/2002 : 2002
(4) SCC 503, wherein it had observed that
if appointment letters are nullity, having
been issued by an officer who did not wield
authority to do so, there was no question of
observance of principles of natural justice
even though affected party was not before
Court.

30. In Union of India and another
v. Raghuwar Pal Singh (supra), Court
clearly held that letter of appointment was
issued by Director Incharge, without prior
approval of Competent Authority is a
nullity and that being so principles of
natural justice are not attracted. It has also
held
that
it
was
not
an
essential
requirement and would have been an
exercise in futility.
762 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Since, in the present case
also, promotion has been made under Rules
2001, not applicable in this case, it was a
nullity and therefore, cancellation thereof
cannot be interfered on the ground that no
opportunity was given, since principles of
natural justice are not attracted in the case
in hand.

32.
There
are
some
other
principles applicable in a writ jurisdiction
which are attracted in the present case and
go against petitioner. An order is not to be
interfered in violation of principles of
natural justice if in the given facts and
circumstances of the case, only view
possible is that order which is affected by
impugned order, was patently illegal.

33. It is well established that
principles of natural justice cannot be put
in a straight jacket formula and there are
certain circumstances particularly when
the facts are not in dispute wherein non
compliance of principles of natural justice
will not vitiate administrative or quasi
judicial order and/or High Court in
exercise of writ jurisdiction may not
interfere. One such exception to the
application of principles of natural justice
is where only one conclusion is possible. In
the present case, it is evident from record
that very promotion of petitioner as Junior
Accounts Clerk was illegal, hence this
Court, while exercising power under
Article 226 of the Constitution is not bound
to interfere. Observance of principles of
natural justice is not an empty formality.
Where only one conclusion is possible, this
Court can decline to interfere in exercise of
power
under
Article
226
of
the
Constitution.

34. In Karnataka State Road
Transport Corporation and another v. S.G.
Kotturappa, MANU/SC/0177/2005 : AIR
2005 SC 1933, Court held:

"The question as to what extent,
principles of natural justice are required to
be complied with would depend upon the
fact situation obtaining in each case. The
principles of natural justice cannot be
applied in vacuum. They cannot be put in
any strait-jacket formula. The principles of
natural justice are furthermore not required
to be complied with when it will lead to an
empty formality. What is needed for the
employer in a case of this nature is to apply
the objective criteria for arriving at the
subjective satisfaction. If the criterias
required for arriving at an objective
satisfaction stands fulfilled, the principles
of natural justice may not have to be
complied with...".

35. In Punjab National Bank and
others v. Manjeet Singh and another,
MANU/SC/8807/2006 : AIR 2007 SC 262,
Court said:

"The principles of natural justice
were also not required to be complied with
as the same would have been an empty
formality. The Court will not insist on
compliance with the principles of natural
justice in view of the binding nature of the
award. Their application would be limited
to a situation where the factual position or
legal implication arising thereunder is
disputed and not where it is not in dispute
or cannot be disputed. If only one
conclusion is possible, a writ would not
issue only because there was a violation of
the principle of natural justice."

(emphasis added)

36. In P.D. Agrawal v. State Bank
of India and others, MANU/SC/8122/2006 :
(2006) 8 SCC 776, it has been observed:

"The Principles of natural justice
cannot be put in a straight jacket formula.
It must be seen in circumstantial flexibility.
It has separate facets."

37. In Writ Petition No. 31995 of
2000 (Ganesh Singh v. District Magistrate
3-5 All. Atul Kumar Singh Vs. State of U.P.
763
and others), decided on 29.4.2011, Court
has held as under:

"16. The principles of natural
justice cannot be kept in a straight jacket
formula. They apply in the facts and
circumstances of each and every case. If
the appointment of petitioner would have
been made in accordance with law or at
least some prima facie material would have
to be placed to show what has been stated
by respondents is not ex facie correct, then
the matter may have required some further
investigation. In the case in hand no such
thing has been placed on record by
petitioner or even pleadings to show that
procedure prescribed under 1974 Rules
was observed and thereafter petitioner was
appointed. The appointment, therefore, is
ex facie illegal and in the teeth of the Rules.

17. In the circumstances, this
Court under Article 226 of the Constitution
do not find it a fit case warranting
interference. The writ petition, therefore,
lacks merit and is dismissed."

(emphasis added)

38. In Writ Petition No. 38893 of
2008 (Brijendra Singh v. State of U.P and
others) decided on 18.5.2011 this Court has
taken somewhat similar view as under:

"... it is well-settled that if only
one conclusion is possible, the Court would
not interfere in the impugned order...."

(emphasis added)

39.
Another
principle
well
established when a Court is required to
exercise
its
extraordinary
jurisdiction
under Article 226 of Constitution, it would
be justified in declining to interfere in an
order which has been passed in violation of
principles of natural justice, if setting aside
of such an order would result in revival of
another illegal order. In other words, Court
will not set aside an order merely on the
ground that opportunity was not given or
principles of natural justice were not
followed, if as a result of setting aside such
an order would revive in favour of
petitioner concerned, another illegal order
for the reason that this Court will not
perpetuate illegality and no person can be
allowed to enjoy benefit of an illegal order,
by taking recourse to Institution of justice
under Article 226 of Constitution.

40.