# Ishtiyaq Husain Abbas Husain v. Zafrul Islam Afzal Husain and others

- **Citation:** (2012) 1 ILRA 492
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-23
- **Case number:** Civil Misc. Writ Petition No. 19624 of 2012
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishtiyaq-husain-abbas-husain-v-zafrul-islam-afzal-husain-and-others-42216
- **Pages:** 3

## Headnote

Rules 1981-Rule 8-Promotion on post of
Head Master-petitioner being appointed
on
compassionate
ground-remained
untrained-held-in absence of minimum
requisite
qualification-can
not
be
appointed/promoted as Head Mastergeneral Mandamus issued-claim of parity
with other similarly situated persons
appointed and working Head Master-No
mandamus to perpetuate illegality can
be issued.

Held: Para 5

So far as the second ground raised by
the petitioner is concerned, suffice is to
record that the minimum qualifications
prescribed for appointment on the post
of Headmaster have been laid down in
Rule 8 of the Rules, 1981. Training is a
must for appointment on the post of
Headmaster/Headmistress
in
senior
basic schools as well as in junior basic
1 All] Atul Kumar Goel V. State of U.P. and others
493
schools. Admittedly, the petitioner is not
possessed of any training qualification as
on date.
In absence of his being
possessed of the prescribed minimum
qualification for such appointment on
the post of Headmaster, as per the
statutory provisions applicable, the Basic
Shiksha Adhikari appears to be justified
in holding that the petitioner cannot be
promoted
on
the
post
of
Headmaster/Headmistress.
Case law discussed:
JT 2009 (13) SC 422

## Text

492 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
holding that the plea of want of notice
cannot taken by private individuals.

642. A Single Judge of this Court in
Ishtiyaq Husain Abbas Husain Vs.
Zafrul Islam Afzal Husain and others
AIR 1969 Alld. 161 has also expressed
the same view:

"It appears to me that the plea of
want of notice is open only to the
Government and the officers mentioned in
section 80 and it is not open to a private
individual. In this particular case the
State Government did not even put in
appearance. The notice, therefore, must
be deemed to have been waived by it."

643. We respectfully endorse the
aforesaid view of the Hon'ble Single
Judge.

644. The entire issue 10 (a) and 10
(b) (Suit-3) is, accordingly, decided in
favour of plaintiffs (Suit-3). We hold that
a private defendant cannot raise objection
regarding maintainability of suit for want
of notice under Section 80 C.P.C."

4. In view of above exposition of
law laid down by Special Bench, it is
quite clear that objection with respect to
want of notice under Section 80 CPC
cannot be taken by a private individual
since it is for the benefit of Government
and its officials and, therefore, it can be
taken only by them and would be
considered if it is pressed by those for
whose benefit the provision has been
made.
A
private
individual
cannot
challenge the proceeding by taking the
plea of want of notice under Section
80CPC.

5. In view thereof the order
impugned in this writ petition warrants no
interference.

6. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 19624 of 2012

Atul Kumar Goel

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Singh

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

U.P. Basic Education (Teachers) Service
Rules 1981-Rule 8-Promotion on post of
Head Master-petitioner being appointed
on
compassionate
ground-remained
untrained-held-in absence of minimum
requisite
qualification-can
not
be
appointed/promoted as Head Mastergeneral Mandamus issued-claim of parity
with other similarly situated persons
appointed and working Head Master-No
mandamus to perpetuate illegality can
be issued.

Held: Para 5

So far as the second ground raised by
the petitioner is concerned, suffice is to
record that the minimum qualifications
prescribed for appointment on the post
of Headmaster have been laid down in
Rule 8 of the Rules, 1981. Training is a
must for appointment on the post of
Headmaster/Headmistress
in
senior
basic schools as well as in junior basic
1 All] Atul Kumar Goel V. State of U.P. and others
493
schools. Admittedly, the petitioner is not
possessed of any training qualification as
on date.
In absence of his being
possessed of the prescribed minimum
qualification for such appointment on
the post of Headmaster, as per the
statutory provisions applicable, the Basic
Shiksha Adhikari appears to be justified
in holding that the petitioner cannot be
promoted
on
the
post
of
Headmaster/Headmistress.
Case law discussed:
JT 2009 (13) SC 422

(Delivered by Hon'ble Arun Tandon,J. )

1. Petitioner before this Court was
offered compassionate appointment as
Assistant
Teacher
in
Parishadiya
Vidyalaya. Admittedly, the petitioner is
untrained. He seeks quashing of the order
of the Basic Shiksha Adhikari dated
23.12.2011, whereby the representation of
the
petitioner
for
promotion
as
Headmaster has been rejected on two
grounds; (a) the notional seniority of five
years provided to such teachers appointed
on
compassionate
basis
under
Government Order dated 15.11.2009 has
since
been
revoked
by
the
State
Government
vide
order
dated
21st
November, 2011 and (b) the petitioner
being untrained is not qualified for the
post of Headmaster appointment whereof
is regulated by U.P. Basic Education
(Teachers) Service U.P. Basic Education
Teachers Service Rules, 1981 (hereinafter
referred to as 'Rules, 1981').

2. The order is being challenged on
two grounds (a) the State Government has
the power to issue a Government Order
having regard to the powers vested in it
under Section 13 of the U.P. Basic
Education Act, 1972 and (b) there are
large
number
of
similarly
situate
compassionate
appointee,
who
were
untrained
but
have
been
granted
promotion on the post of Headmaster and
are still working, while it is petitioner
alone who has been discriminated in the
matter of grant of such promotion.

3. The Court will deal with both the
aforesaid contentions serially.

(a) It may be recorded that the power
of the State Government conferred under
Section 13 of the Act, 1972 is to issue
such directions to the Board i. e. Basic
Education Board, as may be required in
the efficient administration of the Act,
and the Board in turn is obliged to comply
with the said directions.

4. In the facts of the case the State
Government has not issued any direction
to the Board for regulating its conduct in a
particular manner. The State Government
on its own issued a Government Order
providing notional seniority of five years
to
the
teachers
appointed
on
compassionate
ground,
under
which
statutory authority such a direction could
be issued by the State Government and
that too without affording any opportunity
to the teachers, who would be affected by
grant of such notional seniority, could not
be explained by the counsel for the
petitioner.
Therefore,
the
State
Government, realizing its mistake, has
rightly recalled the said Government
Order vide its subsequent order dated
22nd November, 2011. The order of the
State Government dated 22nd November,
2011 is strictly in accordance with law.
There is no justification for grant of
notional
seniority
to
the
persons
appointed on compassionate ground,
thereby
superseding
the
regularly
appointed teachers without affording them
any opportunity in the matter.
494 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5. So far as the second ground raised
by the petitioner is concerned, suffice is to
record that the minimum qualifications
prescribed for appointment on the post of
Headmaster have been laid down in Rule
8 of the Rules, 1981. Training is a must
for
appointment
on
the
post
of
Headmaster/Headmistress in senior basic
schools as well as in junior basic schools.
Admittedly, the petitioner is not possessed
of any training qualification as on date. In
absence of his being possessed of the
prescribed minimum qualification for
such
appointment
on
the
post
of
Headmaster,
as
per
the
statutory
provisions applicable, the Basic Shiksha
Adhikari appears to be justified in holding
that the petitioner cannot be promoted on
the post of Headmaster/Headmistress.

6. So far as the claim of parity is
concerned, it may be recorded that the
Hon'ble Supreme Court of India in the
case of Ghulam Rasool Lone vs. State of
Jammu & Kashmir, reported in JT 2009
(13) SC, 422 has held that there cannot
be
any
negative
equality
and
no
mandamus can be issued by a writ court
asking the State authorities to perpetuate
the illegality. Therefore said contention is
also repelled.

7. This Court, however, directs that
respondent no. 1 shall take all necessary
steps
requiring
the
Basic
Shiksha
Adhikari of the district concerned to
ensure that no person, who is not
possessed of the prescribed minimum
qualification as per Rule 8 of the Rules
1981, is appointed and permitted to work
on the post of Headmaster/Headmistress,
if any such appointment has been made,
the same is recalled immediately in
accordance with law.

8. Petitioner is at liberty to file a
certified copy of this order before the
Secretary, who shall take appropriate
action within four weeks from the date a
certified copy of this order is filed before
him.

9.

With
the
aforesaid
observation/direction the present writ
petition is disposed of.
---------
ORIGINAL JURISDICTION'
CIVIL SIDE
DATED: ALLAHABAD 12.04.2012

BEFORE
THE HON'BLE SUNIL HALI, J.

Civil Misc. writ Petition No. 30790 of 1998

U.P.State Road Transport Corporation &
others

 ...Petitioner
Versus
Jamla Ahmad & another ...Respondents

Counsel for the Petitioner:
Sri Vivek Saran
Sri R.A. Gaur

Counsel for the Respondents:
S.C.
Sri A.M. Zaidi
Sri M.H. Khan

Constitution
of
India,
Article
226Termination during Probation periodLabor Court allowed claim-petition on
ground workman a probationer no right
of
hearing-not
available
where
termination order passed putting stigmainquiry and opportunity of hearing is
must.

Held: Para 5

In the present case, foundation of the
order is that he has managed to get an
employment on the basis of a certificate
which was found to be forged. This is a