# Kalamuddin @ Shanu v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-07
- **Case number:** Special Appeal No. 296 of 2024
- **Bench:** Attau Rahman Masoodi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalamuddin-shanu-v-state-of-u-p-ors-53074
- **Pages:** 7

## Headnote

High Court Rules, 1952 - Chapter VIII -
Rule 5 - Special Appeal - Maintainability -
1 All. Kalamuddin @ Shanu Vs. State of U.P. & Ors.
731
Expression 'Judgment' - Meaning and
Scope - Order for completing the pleading
alongwith staying the ceiling/demolition
of a building was passed - Maintainability
of appeal against it - Held, the order
under challenge does not possess the
characteristic of finality. It does not
adversely affect any valuable right of the
appellant, who does not claim that any of
his personal rights are involved in the
matter - It is not a 'judgment' and the
Special Appeal is not maintainable for this
reason. (Para 10)

B. Practice and procedure - Allahabad
High Court Rules, 1952 - Chapter VIII -
Rule 5 - Special Appeal - Maintainability -
Order before writ court was passed in
exercise of appellate power under UP
Planning and Development Act - Held, the
order under challenge in the Special
Appeal has been passed in Writ Petition
under Article 226 in respect of a judgment
passed by the Divisional Commissioner in
exercise of appellate powers u/s 28 A (4)
of U.P. Urban Planning and Development
Act, the Special Appeal filed against such
an order is not maintainable. (Para 12)

C. Practice and procedure - Appeal was
filed by a person not a party in the writ
petition - No leave to file appeal was
sought - Effect - Held, the Special Appeal
filed without seeking leave of the Court is
not maintainable. (Para 13)

D. Practice and procedure - Allegation of
not filing the writ petition with clean hand
was leveled by the appellant - Also
allegations have been levelled against the
officers/officials of Registry of the High
Court for passing the writ petition in a
cursory manner and the allegations have
been
levelled
against
the
Court
for
granting permission for hearing the writ
petition on the day of filing itself -
Permissibility - Held, it is the normal
practice prevalent in the Allahabad High
Court that in matters regarding which the
Court is satisfied that the same warrants
an urgent hearing, the Court grants
request for urgent hearing. The appellant
has
recklessly
leveled
misconceived,
vague and unsubstantiated allegations
against
the
petitioners,
the
learned
Counsel for the petitioners, the officers
and officials of the Registry of this Court
as well as the Hon'ble Judge who has
passed the order, which are wholly
unwarranted and unacceptable - High
Court imposed a cost of Rs. 25,000/-
against the appellant. (Para 15, 19 and
21)

Special Appeal dismissed. (E-1)

List of Cases cited:

## Text

730 INDIAN LAW REPORTS ALLAHABAD SERIES
under which the holding of a higher
qualification which presupposes the
acquisition of a lower qualification
was considered to be sufficient for
the post. It was in the context of
specific rule that the decision in
Jyoti KK turned."
(Emphasis added)

14. In the present case the
advertisement states that the eligibility
qualification will be as per Column 4 of the
Appendix to the Uttar Pradesh Government
Industrial Training Institutes (Instructors and
Foreman Instructors) Service Rules, 2021,
which mentions a two years' Diploma in
Garment Fabrication Technology/Costume
Design & Dress making from a recognized
Board of Technical Education or relevant
Advanced Diploma (Vocational) from D.G.T.
with two years' experience in the relevant
field or NTC/NAC passed in the trade of
"Sewing Technology", earlier named as
"Cutting & Sewing", with three years'
experience in the relevant field. The appellant
does not possess any of the aforesaid
qualifications.

15. Although, the advertisement
mentioned that a candidate should have
passed
the
High
School
examination
conducted by the U.P. Intermediate Education
Board or any other examination recognized
by the State Government as equivalent
thereto, the clause of equivalence is not there
in respect of the qualification of Diploma.
Therefore, any person claiming to possess
any qualification equivalent to a Diploma in
Garment Fabrication Technology/Costume
Design & Dress Making or NTC/NAC
passed in the trade of "Sewing Technology",
would not be eligible to apply against the
advertisement.
16. Further, as per the law settled by
the Hon'ble Supreme Court, the question of
equivalence of qualification in the matter of
examining the eligibility for the purpose of
employment, is to be decided by the
employer and the Courts cannot treat any
qualification
to
be
equivalent
to
the
qualifications prescribed in the Rules and
mentioned in the advertisement. In case the
appellant's
claim
of
equivalence
of
qualification is allowed, all other similarly
situated persons, who did not apply as they
did not possess the qualification prescribed
by the Rules and mentioned in the
advertisement, would suffer discrimination
and injustice.

17. Therefore, we find ourselves in
complete agreement with the view taken by
Hon'ble Single Judge while dismissing the
writ petition.

18. The Special Appeal lacks merit
and the same is hereby dismissed.
----------
(2025) 1 ILRA 730
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.01.2025

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal No. 296 of 2024

Kalamuddin @ Shanu ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sajjad Husain

Counsel for the Respondents:
C.S.C.

A. Practice and Procedure - Allahabad
High Court Rules, 1952 - Chapter VIII -
Rule 5 - Special Appeal - Maintainability -
1 All. Kalamuddin @ Shanu Vs. State of U.P. & Ors.
731
Expression 'Judgment' - Meaning and
Scope - Order for completing the pleading
alongwith staying the ceiling/demolition
of a building was passed - Maintainability
of appeal against it - Held, the order
under challenge does not possess the
characteristic of finality. It does not
adversely affect any valuable right of the
appellant, who does not claim that any of
his personal rights are involved in the
matter - It is not a 'judgment' and the
Special Appeal is not maintainable for this
reason. (Para 10)

B. Practice and procedure - Allahabad
High Court Rules, 1952 - Chapter VIII -
Rule 5 - Special Appeal - Maintainability -
Order before writ court was passed in
exercise of appellate power under UP
Planning and Development Act - Held, the
order under challenge in the Special
Appeal has been passed in Writ Petition
under Article 226 in respect of a judgment
passed by the Divisional Commissioner in
exercise of appellate powers u/s 28 A (4)
of U.P. Urban Planning and Development
Act, the Special Appeal filed against such
an order is not maintainable. (Para 12)

C. Practice and procedure - Appeal was
filed by a person not a party in the writ
petition - No leave to file appeal was
sought - Effect - Held, the Special Appeal
filed without seeking leave of the Court is
not maintainable. (Para 13)

D. Practice and procedure - Allegation of
not filing the writ petition with clean hand
was leveled by the appellant - Also
allegations have been levelled against the
officers/officials of Registry of the High
Court for passing the writ petition in a
cursory manner and the allegations have
been
levelled
against
the
Court
for
granting permission for hearing the writ
petition on the day of filing itself -
Permissibility - Held, it is the normal
practice prevalent in the Allahabad High
Court that in matters regarding which the
Court is satisfied that the same warrants
an urgent hearing, the Court grants
request for urgent hearing. The appellant
has
recklessly
leveled
misconceived,
vague and unsubstantiated allegations
against
the
petitioners,
the
learned
Counsel for the petitioners, the officers
and officials of the Registry of this Court
as well as the Hon'ble Judge who has
passed the order, which are wholly
unwarranted and unacceptable - High
Court imposed a cost of Rs. 25,000/-
against the appellant. (Para 15, 19 and
21)

Special Appeal dismissed. (E-1)

List of Cases cited:

1. Ashutosh Shrotriya Vs Vice-Chancellor, Dr.
B.R. Ambedkar University; AIR 2015 All 187 :
2015 SCC OnLine All 8553

(Delivered by Hon'ble Attau Rahman
Masoodi, J. & Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Sajjad Husain, learned
counsel for the petitioner, Shri V.P. Nag, the
learned Standing counsel appearing for the
State of U.P., Shri Puneet Chandra, the
learned counsel appearing for Awas Vikas
Parishad and Mohd. Altaf Mansoor, the
learned counsel appearing for the opposite
party Nos.6 & 7.

2. By means of the instant intraCourt Appeal filed under Chapter VIII Rule 5
of the Allahabad High Court Rules, the
appellant, who has described himself as
"Kalamuddin; popularly known as Shanu,
S/o Nasiruddin- Incharge, Vidhan Sabha
(East); Bhartiya Kisan Union (Avadh) Raju
Gupta Sangathan, U.P. Lucknow, Regional
Office-529/17-C, Near State Bank, Khurram
Nagar, Vikas Nagar, Lucknow-226022" has
challenged an interim order dated 26.11.2024
passed by an Hon'ble Single Judge of this
Court in Writ C No.10189 of 2024, which
order reads as follows:-

"1. Heard Shri Mohd. Altaf
Mansoor, learned counsel for the
732 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners and learned Standing
counsel who accepts notice on
behalf of respondent nos.1,2 and 5.
2. Shri Puneet Chandra,
Advocate who appeared through
video conferencing accepts notice
on behalf of respondent nos.3 and
4. Shri Chandra opposes the
petition, however, states that he
wants to file counter affidavit to
bring on record the essential facts.
3.
Learned
Standing
Counsel may seek instructions and
file counter affidavit within four
weeks.
4. Rejoinder affidavit, may
be filed within a week thereafter.
5.
List
this
case
on
22.1.2025.
6. Till the next date of
listing,
no
further
steps
for
ceiling/demolition shall be taken in
pursuance
to
order
dated
20.5.2004, contained in Annexure
No.2 and consequential request
made vide order dated 16.11.2024
contained in Annexure No.14."

3. The learned counsel for the
opposite parties have raised three fold
preliminary
objections
against
maintainability of the Special Appeal. The
first preliminary objection is that the writ
petition was filed challenging an interim
order dated 30.09.2024 by which the
opposite parties have been granted time to
file counter affidavits and the petitioner has
been granted time to file a rejoinder
affidavit and the operation of a ceiling /
demolition order has been stayed till the
next date of listing of the Writ Petition, i.e.
22.01.2025. The Writ Court has not decided
any point by the order under challenge in
this Appeal and the order does not fall
within the category of a 'judgment'.
Therefore, the Special Appeal would not lie
against such an order.

4. The second objection is that the
Writ Petition was filed against an order
passed by the Commissioner, Division,
Lucknow in an Appeal under Section 28 A
(4)
of
U.P.
Urban
Planning
and
Development Act, 1973 and, therefore, the
Special Appeal is not maintainable as per
the provisions contained in Chapter VIII
Rule 5 of the Allahabad High Court Rules..

5. The third objection raised by the
learned Counsel for the opposite parties is
that the appellant was not a party to the
Writ Petition and he can file a Special
Appeal only after seeking leave of this
Court. However, the Special Appeal has
been filed without seeking leave of the
Court and, therefore, it is not maintainable.

6. In reply to the aforesaid
preliminary objections, the learned counsel
for the appellant merely submitted that the
petitioners had concealed certain relevant
facts from the Writ Court and had obtained
an ex-parte stay order hastily by making a
mention for taking up the case on urgent
basis. The learned counsel for the appellant
stated that a Co-ordinate Bench of this
Court
had
passed
an
order
dated
20.09.2024 in Writ-C No.8129 of 2024,
recording its concern that the authorities
are proceedings against one particular
building and not against several others and
had directed Awas Vikas Parishad to file an
affidavit regarding action, if any, taken
against the owners of various buildings
which are being used for commercial
purposes including marriage halls, which
have been allowed to go on with their
business unrestricted. The submission of
the learned counsel for the appellant is that
the counsel for petitioner in Writ-C
1 All. Kalamuddin @ Shanu Vs. State of U.P. & Ors.
733
No.8129 of 2024 and in Writ-C No.10189
of 2024 is the same and the Counsel has
concealed the order dated 20.09.2024 from
the Court while advancing submissions in
Writ-C No.10189 of 2024 and has obtained
the interim order dated 26.11.2024 which
runs contrary to the order dated 20.09.2024
passed by a Division Bench.

7. The Learned counsel for the
appellant did not give any reply to any of
the three preliminary objections raised
against the maintainability of the Special
Appeal.

8. It will be appropriate to have a
look at the provisions contained in Chapter
VIII Rule 5 of the Allahabad High Court
Rules, for a proper appreciation of the
preliminary objections: -

"5. Special appeal: An
appeal shall lie to the Court from
a judgment (not being a judgment
passed in the exercise of appellate
jurisdiction) in respect of a decree
or order made by a Court subject to
the superintendence of the Court
and not being an order made in the
exercise of revisional jurisdiction
or in the exercise of its power of
superintendence or in the exercise
of criminal jurisdiction or in the
exercise
of
the
jurisdiction
conferred by Article 226 or Article
227 of the Constitution in respect
of any judgment, order or award--
(a) of a tribunal, Court or statutory
arbitrator made or purported to be
made in the exercise or purported
exercise of jurisdiction under any
Uttar Pradesh Act or under any
Central Act, with respect to any of
the matters enumerated in the State
List or the Concurrent List in the
Seventh
Schedule
to
the
Constitution,
or
(b)
of
the
Government or any officer or
authority, made or purported to be
made in the exercise or purported
exercise of appellate or revisional
jurisdiction under any such Act of
one Judge.
(Emphasis added)

9. In Ashutosh Shrotriya v. ViceChancellor,
Dr.
B.R.
Ambedkar
University: AIR 2015 All 187 = 2015 SCC
OnLine All 8553, a Full Bench of this
Court formulated the following principles
regarding
what
would
constitute
a
'judgment' as per the term used in Chapter
VIII Rule 5 of the Allahabad High Court
Rules: -

"30. We now formulate the
governing principles:
(i)
The
expression
'judgment'
was
advisedly
not
defined in the Letters Patents of
various
High
Courts
which
conferred a right of appeal against
a judgment of a single Judge to a
Division Bench of that Court;
(ii)
The
expression
'judgment' is not to be construed in
the narrower sense in which the
expression 'judgment', 'decree' or
'order' is defined in the CPC, but
must receive a broad and liberal
construction;
(iii) Every order passed by
a trial Judge on the Original side
of a High Court exercising original
jurisdiction or, for that matter, by a
learned single Judge exercising the
writ jurisdiction, would not amount
to a judgment. If every order were
construed to be a judgment, that
would result in opening a flood of
734 INDIAN LAW REPORTS ALLAHABAD SERIES
appeals and there would be no end
to the number of orders which
could be appealable under the
Letters Patent;
(iv)
Any
interlocutory
order, to constitute a judgment,
must possess the characteristic of
finality in the sense that it must
adversely affect a valuable right of
a party or decide an important
aspect of the trial in an ancillary
proceeding. In order to constitute
a 'judgment', the adverse effect on
a party must be direct and
immediate and not indirect or
remote;
(v) In order to constitute a
judgment, an interlocutory order
must : (a) decide a matter of
moment; or (b) affect vital and
valuable rights of the parties and
must also work serious injustice to
the party concerned:
(vi) On the other hand,
orders passed in the course of the
proceedings of a routine nature,
would not constitute a judgment even
if they result in some element of
inconvenience or hardship to one
party or the other. Routine orders
which are passed by a single Judge to
facilitate the progress of a case may
cause some element of inconvenience
or prejudice to a party but do not
constitute a 'judgment' because they
do not finally determine the rights or
obligations of the parties. Procedural
orders in aid of the progression of a
case or to facilitate a decision are not
judgments."
(Emphasis added)

10. An order granting time to the
parties to complete the pleadings and
staying ceiling / demolition of a building
till the next date of listing of the Writ
Petition, does not decide any aspect of the
controversy involved in the Writ Petition
and it does not possess the characteristic of
finality. It does not adversely affect any
valuable right of the appellant, who does
not claim that any of his personal rights are
involved in the matter. Therefore, we are of
the considered view that the order under
challenge in the Special Appeal is not a
'judgment' and the Special Appeal is not
maintainable for this reason.

11. A bare perusal of Chapter VIII
Rule 5 makes it clear that no Special Appeal
shall lie against an order passed in the exercise
of the jurisdiction conferred by Article 226 of
the Constitution in respect of any judgment,
order or award of the Government or any
officer or authority, made or purported to be
made in the exercise or purported exercise of
appellate or revisional jurisdiction under any
State Act of one Judge.

12. Since, the order under challenge
in this Special Appeal has been passed in Writ
Petition under Article 226 in respect of a
judgment
passed
by
the
Divisional
Commissioner in exercise of appellate powers
under Section 28 A (4) of U.P. Urban Planning
and Development Act, the Special Appeal filed
against such an order is not maintainable.

13. Moreover, the appellant was not a
party to the Writ Petition. He could have filed
a Special Appeal only after seeking leave of
the Court but neither any application seeking
leave has been filed by the appellant, nor did
the learned Counsel for the appellant seek time
for filing an application for this purpose.
Therefore, the Special Appeal filed without
seeking leave of the Court is not maintainable.

14. Therefore, we are of the
considered view that the present Special
1 All. Kalamuddin @ Shanu Vs. State of U.P. & Ors.
735
Appeal filed against an interlocutory order
passed in a writ petition directed against an
order passed in Appeal under Section 28 A
(4)
of
U.P.
Urban
Planning
and
Development Act, by a person who is not a
party
to
the
Writ
Petition,
is
not
maintainable for all the aforesaid three
reasons and it is liable to be dismissed as
such.

15. It has been alleged by the
appellant that the petitioners had not
approached this Court with clean hands
while filing Writ-C No.10189 of 2024 and
they have concealed material facts. The
allegation of concealment of facts have
been levelled against the learned counsel
for the petitioners also and he has been
repetitively named and blamed for filing
the writ petition challenging the validity of
sealing order. It has been alleged that as the
same counsel had filed Writ-C No.8129 of
2024, wherein an order was passed on
20.09.2024. The appellant has contended
that he should have not filed Writ-C
No.10189 of 2024 or he should have
disclosed the order dated 20.09.2024
passed in Writ-C No.8129 of 2024. The
allegations have been levelled against the
officers/officials of Registry of this Court
for passing the writ petition in a cursory
manner and the allegations have been
levelled against the Court for granting
permission for hearing the writ petition on
the day of filing itself keeping in view the
urgency involved in the matter. The
Hon'ble Single Judge who has passed the
interim order under challenge has been
blamed for taking up the writ petition
treating it to be urgent and for passing the
impugned order.

16. These allegations have been
seriously objected by the learned counsel
appearing on behalf of the opposite parties
no.6 and 7 and he has submitted that the
allegations
are
wholly
misconceived,
unfounded and malicious.

17. The appellant has concealed
the fact that he had filed an application for
impleadment in the Appeal before the
Commissioner and that application had
been
rejected
by
the
order
dated
30.09.2024, which is under challenge in the
Writ Petition at the instance of respondent
Nos.6 & 7 (petitioners) only. The appellant
has not challenged the order of rejection of
his impleadment application. In these
circumstances, he was not required to be
impleaded in the Writ Petition. Sri. Altaf
Mansoor, the learned Counsel for the
private opposite parties no. 6 and 7 has
informed the Court although the appellant
has not been impleaded in the Writ Petition,
since he had filed a caveat application, a
copy of the Writ Petition was given to the
learned Counsel for the appellant before it
was filed.

18. So far as the submissions of
the learned counsel for the appellant that
the learned counsel for the petitioner had
made a concealment of material facts in
Writ-C No.10189 of 2024, the learned
counsel for the appellant admitted that the
petitioners in Writ-C No.8129 of 2024 are
not parties to Writ-C No.10189 of 2024 or
to present Appeal. Writ-C No.8129 of 2024
was filed by a person who had booked the
marriage hall in question for the wedding
of his sister whereas Writ-C No.10189 of
2024 has been filed challenging the validity
of a ceiling order and the appellate order.
The subject matters as well as parties to
both the Writ Petitions are different. Merely
because counsel for the petitioner in both
the writ petitions happens to be the same,
the counsel is not under any obligation to
disclose the facts relating to any other case
736 INDIAN LAW REPORTS ALLAHABAD SERIES
filed on behalf of any other person in
respect of a different order. The counsel in
fact owes a professional duty to his client
not to disclose the facts of his case to any
other person. Therefore, the allegation of
concealment of fact is misconceived and it
has been leveled in a reckless and
irresponsible manner.

19. Although the appellant has
alleged that the registry has passed the Writ
Petition in a cursory manner, the appellant
has not alleged violation of the provisions of
any specific Rule in filing the Writ Petition.
There is no specific allegation of violation of
any Rule by the officers/officials of the
registry also. The Hon'ble Judge has been
blamed for accepting the request for taking
up the Writ Petition on urgent basis, whereas
it is the normal practice prevalent in this
Court that in matters regarding which the
Court is satisfied that the same warrants
an urgent hearing, the Court grants
request for urgent hearing. The appellant
has recklessly leveled misconceived,
vague and unsubstantiated allegations
against
the
petitioners,
the
learned
Counsel for the petitioners, the officers
and officials of the Registry of this Court
as well as the Hon'ble Judge who has
passed the order, which are wholly
unwarranted
and
unacceptable.
We
strongly deprecate the conduct of the
appellant in leveling such allegations.

20. The learned Counsel for the
appellant is under a professional obligation
to draft and file the appeal carefully and we
deprecate the conduct of the learned
Counsel for the appellant in putting in such
baseless allegations while drafting the
Special Appeal.

21. In view of the forgoing
discussion, we are of the considered view
that filing of the present Special Appeal
by making reckless and irresponsible
allegations,
without
ascertaining
its
maintainability within the scope of
provisions contained in Chapter VIII Rule
5 of the Allahabad High Court Rules
amounts to a gross abuse of the process
of law taxing upon the valuable time of
the Court. Therefore the Special Appeal
is dismissed with a cost of Rs.25,000/-
which shall be deposited by the appellant
with the Registry of this Court within a
period of 30 days from today, failing
which the Senior Registrar shall initiate
proceedings for recovery of the amount
by sending a recovery certificate to the
Collector concerned, who shall recover
the amount as arrears of land revenue and
shall remit the same to this Court within a
period of three months from the date of
issuance of the recovery certificate. The
Senior Registrar of this Court is directed
to transmit the amount of cost to
Children's
Home
(Girls),
Lucknow,
which is being run and maintained under
the Department of Women and Child
Development, Government of U.P.
----------
(2025) 1 ILRA 736
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 969 of 2024

Naveen Kumar Srivastava & Ors.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Siddharth Khare, Sr. Adv.