# Manmohan Mishra v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 398
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-30
- **Case number:** Special Appeal No. 256 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manmohan-mishra-v-state-of-u-p-ors-43169
- **Pages:** 9

## Headnote

Board Rules 1998-Rule-9-Bar to appoint
male teacher in girls institution-whether
can be termed unreasonable? held-'No'-
various reasons discussed.
Held: Para-19
In view of this legal position, we would
have to hold, though for the reasons which
we have indicated, that there is no merit in
the challenge to the view which has been
taken by the learned Single Judge. The rulemaking authority in framing Rule 9 has not
taken over an essential legislative function.
The
rule-making
authority
has
not
transgressed the limitations on its statutory
power under Section 35 of the Act of 1982.
Rule 9 is perfectly in conformity with the
provisions of the Act of 1982 and cannot be
regarded as being unreasonable.
Case Law discussed:
AIR 1981 SC 1829; AIR 1954 SC 321; (1979) 4
SCC 260; 2008 (3) ESC 409 (SC)

## Text

398
 INDIAN LAW REPORTS ALLAHABAD SERIES
such homes. Long confinement in such
circumstances, is likely to torment the
inmates mentally and emotionally. This is
not permissible in law.
13. Considering the totality of the
facts and circumstances of the case, we
also record our anguish at the conduct of
the court in entertaining application dated
14.1.2015 and forwarded to the court on
15.1.2015, on 12.2.2015, approximately
after one month. Such application should
be taken up and dealt with immediately,
and not beyond a period of one week.
14.
Considering the stand of the
detenue, the court should have immediately
passed orders for her release in the custody
of the parents. The parents are not aliens for
their daughter, who is pregnant. The order
denying the detenue to live with her parents
is not only wholly on account of insensitive
approach, but is also injudicious, and
irresponsible.
15. Considering the totality of the
facts and circumstances of the case, the
petition is allowed. Annexure No2 dated
12.2.2015 is hereby quashed. Detenue
Ankita is hereby directed to be released in
the custody of her father Ramesh Kumar.
16. Let a copy of this order be
released under the signature of Bench
Secretary of this Court.
17. Let a copy of the order be also
forwarded to District & Sessions Judge,
Unnao.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
Special Appeal No. 256 of 2015
Manmohan Mishra
...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Kundan Rai, P.K. Jain, Vishal Kashyap
Counsel for the Respondents:
C.S.C., A.K. Yadav
U.P. Secondary Education Service Selection
Board Rules 1998-Rule-9-Bar to appoint
male teacher in girls institution-whether
can be termed unreasonable? held-'No'-
various reasons discussed.
Held: Para-19
In view of this legal position, we would
have to hold, though for the reasons which
we have indicated, that there is no merit in
the challenge to the view which has been
taken by the learned Single Judge. The rulemaking authority in framing Rule 9 has not
taken over an essential legislative function.
The
rule-making
authority
has
not
transgressed the limitations on its statutory
power under Section 35 of the Act of 1982.
Rule 9 is perfectly in conformity with the
provisions of the Act of 1982 and cannot be
regarded as being unreasonable.
Case Law discussed:
AIR 1981 SC 1829; AIR 1954 SC 321; (1979) 4
SCC 260; 2008 (3) ESC 409 (SC)
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1.

The
appellant
having
unsuccessfully pursued a writ proceeding
under Article 226 of the Constitution, is in
appeal against a judgment and order of
the learned Single Judge dated 15 April
2015.
1 All] Manmohan Mishra Vs. State of U.P. & Ors.
399
2. The appellant was appointed as a
Lecturer in Physics on 21 January 1980 in
the D.P. Girls Inter College, Allahabad,
an institution which is recognised under
the Uttar Pradesh Intermediate Education
Act, 19211. An advertisement was
published by the Uttar Pradesh Secondary
Education Services Selection Board2 for
appointment of the Principal of the
institution in 2011. On 12 March 2015,
the Board invited two senior most
teachers of the college for an interview
for the post which was scheduled to be
held on 16 April 2015. The second senior
most teacher in the seniority list is stated
to have attained the age of superannuation
on 24 December 2014 and was continuing
in service until the end of the academic
session. The appellant applied for his
name being forwarded for interview under
Rule 12(6) of the U.P. Secondary
Education
Services
Selection
Board
Rules,
19983.
The
Committee
of
Management
submitted
the
records
pertaining to the appellant and the senior
most teacher. The Board rejected the
candidature of the appellant on the ground
that he was not eligible for appointment
on the post of Principal being a male
candidate (as a result of the bar created by
Rule 9 of the Rules of 1998) and the
institution was directed to send the name
of the next senior most woman teacher.
Aggrieved, the appellant filed a writ
petition seeking, inter alia, to challenge
the order dated 9 April 2015, rejecting his
candidature and seeking a mandamus to
the Board to allow the appellant to appear
in the interview scheduled to be held on
16 April 2015. The learned Single Judge
dismissed the writ petition holding that
Rule 9 of the Rules of 1998 prohibits the
appointment of a male candidate in a girls
institution as Headmaster or Principal.
The learned Single Judge held that the
restriction was not in conflict with either
the Act of 1921 or the U.P. Secondary
Education Services Selection Board Act,
19824 nor was it unreasonable. The
petition was accordingly dismissed.
3.
The Uttar Pradesh Intermediate
Education Act, 1921 was enacted to establish
a Board of High School and Intermediate
Education. Section 16-E envisages that the
head of the institution and teachers shall be
appointed by the Committee of Management
in the manner which is thereinafter provided.
The Act of 1982 established the Board for
the selection of teachers in institutions
recognised under the Act of 1921. The
Statement
of
Objects
and
Reasons
accompanying the introduction of the Bill in
the state legislature furnish the following
rationale for the enactment of the Act:
"The appointment of teachers in
secondary institutions recognised by the
Board of High School and Intermediate
Education
was
governed
by
the
Intermediate Education Act, 1921 and
regulations made thereunder. It was felt
that the selection of teachers under the
provisions of the said Act and the
regulations was some times not free and
fair. Besides, the field of selection was
also very much restricted. This adversely
affected the availability of suitable
teachers and the standard of education. It
was therefore, considered necessary to
constitute Secondary Education Service
Commission at the State level, to select
Principals, Lecturers, Headmasters and
L.T. Grade teachers, and Secondary
Education
Selection
Boards
at
the
regional level, to select and make
available
suitable
candidates
for
comparatively
lower
posts
in
C.T./J.T.C./B.T.C.
Grade
for
such
institutions."
400
 INDIAN LAW REPORTS ALLAHABAD SERIES
4. The object of enacting Act 5 of
1982 was to obviate the allegations that
the selection of teachers under the
provisions of the Act of 1921 had not
been free and fair. The object was to
ensure that selection of teachers including
Principals and Headmasters would be
made on an objective and fair basis.
Section 9 (a) of the Act of 1982
empowers the Board to prepare guidelines
on matters relating to the method of
recruitment and promotion of teachers.
Under Section 9(i) of the Act of 1982, the
Board is to perform such other duties and
exercise such other powers as may be
prescribed or as may be incidental or
conducive to the discharge of its functions
under the Act or the Rules or Regulations
made under it. Section 10 of the Act of
1982 lays down the procedure for
selection by direct recruitment under
which the Management has to determine
the number of vacancies existing or likely
to fall vacant during the year of
recruitment and to notify the vacancies to
the Board in such manner as may
prescribed. Section 10(2) of the Act of
1982 provides that the procedure for
selection
of
candidates
for
direct
recruitment to the post of teachers shall be
such
as
may
be
prescribed.
The
expression 'Teacher' is defined in Section
2(k) of the Act of 1982 to mean a person
employed for imparting instruction in an
institution and to include a Principal or a
Headmaster. Under Section 11, upon the
notification of the vacancy, the Board has
to prepare a panel of persons found most
suitable for appointment which is to be
intimated to the Management of the
institution. The Management is required
to issue an appointment to the selected
candidate. Section 16 of the Act of 1982
provides that notwithstanding anything to
the contrary contained in the Act of 1921
or the Regulations framed under it, every
appointment of a teacher shall be made by
the
Management
only
on
the
recommendation of the Board. Section 32
of the Act of 1982 deals with the
applicability of the Act of 1921 and
provides as follows:
"32. Applicability of U.P. Act No.II
of 1921.
- The provisions of the
Intermediate Education Act, 1921 and the
Regulation made thereunder in so far as
they are not inconsistent with the
provisions of this Act or the rules or
regulations
made
thereunder
shall
continue to be in force for the purposes of
selection,
appointment,
promotion,
dismissal,
removal,
termination
or
reduction in rank of a teacher."
5. A rule making power is conferred
upon the State Government by Section 35
of the Act of 1982 under which rules are
to be framed for carrying out the purposes of
the Act. In exercise of the rule making
power, the State Government initially framed
the Uttar Pradesh Secondary Education
Services Commission Rules, 19835. These
were followed by the Uttar Pradesh
Secondary Education Services Commission
Rules, 19956 and ultimately by the Rules of
1998. Under Rule 10 of the Rules of 1998,
recruitment to the post of Principal of an
Intermediate College is to be by direct
recruitment. Under Rule 11(2)(b) of the
Rules of 1998, it has been provided that with
regard to the post of Principal or Headmaster,
the Management has to forward names of
two senior most teachers together with their
service records to the Board.
6. Rule 5 of the Rules of 1998 deals
with
academic
qualifications
for
appointment to the post of teacher and is
in the following terms:-
1 All] Manmohan Mishra Vs. State of U.P. & Ors.
401
"5. Academic qualifications.
- A
candidate for appointment to a post of
teacher
must
possess
qualifications
specified in Regulation 1 of Chapter II of
the
Regulations
made
under
the
Intermediate Education Act, 1921."
7. Consequently, the qualifications
which have been specified in Regulation 1
of Chapter II of the Regulations made
under the Act of
1921 have been
incorporated by Rule 5 of the Rules of
1998. Rule 9 of the Rules of 1998, upon
which the controversy in the present case
turns, provides as follows:
"9. Bar to appoint a male candidate
in a girls' institution - No male candidate
shall be eligible for appointment to the
post a in a girls' institution:
Provided that nothing contained in
this rule shall apply to -
(a) a candidate already working as a
confirmed teacher in a girls' institution
for appointment by promotion to a higher
post of teacher, other than the post of
head of institution in the same institution;
or
(b)
a
blind
candidate
for
appointment as a teacher for the subject
of Music :
Provided further that when a suitable
lady candidate is not available for
appointment to the post of a teacher other
than the post of head of institution, or for
any other sufficient reason the Board is
satisfied that it is expedient in the interest
of the students so to do, it may select a
male candidate for such post :
Provided also that before selecting a
male candidate in accordance with the
preceding proviso, the Board may obtain
and
consider
the
views
of
the
Management of the institution concerned
and the Joint Director."
8. In its substantive part, Rule 9
provides that a male candidate shall not
be eligible for appointment to the post of
a teacher in a girls institution. However,
clause (a) of the first proviso to Rule 9
protects the services of candidates who
are already working as confirmed teachers
in a girls institution by securing their right
to appointment by promotion to a higher
post of teacher other than a post of the
head of the institution. The second
proviso, however, stipulates that when a
suitable lady candidate is not available for
appointment as a teacher other than the
post of a head of the institution or for any
sufficient reason, deemed expedient in the
interest of students, the Board may select
a male candidate for the post. The
prohibition contained in Rule 9 of the
Rules
of
1998
is
similar
to
a
corresponding provision in Rule 3 (2) of
the Rules of 1983 and almost identical to
Rule 9 of the Rules of 1995.
9. Now, it is in this background that
it would be necessary to appreciate the
submissions which have been urged on
behalf of the appellant by learned counsel.
The submissions are as follows:
(i) The duty and function of the
Board under the Act of 1982 is to provide
the procedure for selection of candidates
as is evident from Section 10(2) of the
Act of 1982. The Board does not have the
statutory power to frame qualifications for
appointments of teachers and, in fact,
Rule 5 of the Rules of 1998 incorporates
the qualifications prescribed in Regulation
1 of Chapter II of the Regulations framed
under the Intermediate Education Act,
1921;
(ii) The right of a qualified teacher
under the Act of 1921 cannot be taken
away by the rule making power conferred
402
 INDIAN LAW REPORTS ALLAHABAD SERIES
on the State by Section 35 of the Act of
1982. Rights which have been conferred
under the Act of 1921 cannot be taken
away by subordinate legislation framed
under the Act of 1982;
(iii) Rule 9 of the Rules of 1998 is
ultra vires the provisions of Section 35 of
the Act of 1982. The Act of 1982 does not
empower
the
Board
to
frame
qualifications for appointment as a
teacher;
(iv) The framing of qualifications
constitutes
an
essential
legislative
function which cannot be delegated to
subordinate legislation; and
(v) The restriction which is imposed
by Rule 9 of the Rules of 1998 is
unreasonable.
10. The Secondary Education
Services Selection Board was constituted
by Act 5 of the Act of 1982; the object of
the state legislature being to establish a
Board which would bring objectivity and
fairness in the appointment of teachers in
institutions which are governed by the
Intermediate Education Act, 1921. As we
have noticed earlier, the Board has wide
ranging powers and duties under Section
9 of the Act of 1982, including the
preparation of guidelines on matters
relating to the method of recruitment and
promotion
of
teachers
and
the
performance of duties and exercise of
powers,
as
may
be
incidental
or
conducive, to the discharge of its
functions under the Act. Section 10(2) of
the Act of 1982 envisages that the
procedure for selection of candidates for
direct recruitment to the post of teachers
shall be such as may be prescribed. Under
Section 32 of the Act of 1982, the
provisions of the Act of 1921 as well as
the Regulations which were framed under
it, were to continue to remain in force for
the purpose of selection, appointment,
promotion,
dismissal,
removal,
termination or reduction in rank of
teachers
insofar
as
they
are
not
inconsistent with the provisions of the
Act. This provision, to our mind, is a clear
recognition by the state legislature of two
things. Firstly, the statutory provisions
contained in the Act of 1921, as well as its
Regulations, would continue to hold the
field, inter alia, in matters of selection,
appointment and promotion of teachers
insofar as they were not inconsistent with
the provisions contained in the Act of
1982 as well as in the Rules and
Regulations
made
under
the
Act.
Secondly, the language of Section 32
indicates that under the Act of 1982 as
well as the Rules or Regulations which
could be framed under it, provisions could
be made in the matter of selection,
appointment and promotion of teachers
among other things. These could even be
at variance with those under the Act of
1921 and the rules and regulations under
it. For, unless such a power to make
provisions in the Rules and Regulations
framed under the Act of 1982 in regard to
selection, appointment and promotion of
teachers
among
other
things,
was
comprehended,
there
would
be
no
possibility of any inconsistency. The fact
that the legislature did envisage an
inconsistency conceivably as arising and
gave an overriding effect, to the extent of
the inconsistency, to the Act of 1982 and
to the Rules and Regulations made under
it, indicate both the sweep and ambit of
the regulatory power under the Act of
1982 as well as the overriding force
which would operate in respect of the
statutory provisions contained in the Act
as well as in the Rules and the
Regulations. In fact, it must also be
emphasised that in Section 32 of the Act
1 All] Manmohan Mishra Vs. State of U.P. & Ors.
403
of 1982, the legislature contemplated an
inconsistency not merely with the provisions
of the subsequent Act but also with its Rules
and Regulations. In either event, it is the Act
of 1982 as well as the Rules and Regulations
framed thereunder which would prevail to
the extent of inconsistency. Rule 5 of the
Rules of 1998 incorporates the qualifications
which are specified in Regulation 1 of
Chapter II of the Regulations made under the
Act of 1921.
11. Rule 9 of the Rules of 1998
essentially ensures that for appointment to
the post of a teacher in a girls institution a
candidate should not be a male. However,
clause (a) to the first proviso to Rule 9
stipulates that if a candidate was already
working as a confirmed teacher in a girls
institution, such a candidate could secure
appointment by promotion to a higher
post of teacher other than the head of the
institution. Moreover, under clause (b) to
the first proviso, the Board is empowered
to select even a male candidate for
appointment to the post of a teacher other
than the head of an institution when a
suitable woman candidate is not available
or where the Board is satisfied for any
other sufficient reason that it is expedient
in the interest of the students to do so.
These provisions in Rule 9 are based on
an expert assessment by the delegate of
the legislature that such a provision was
necessary in the State of Uttar Pradesh to
protect the interest and welfare of students
in an institution exclusively meant for
girls. The rule-making authority is entitled
to form an opinion that in order to
encourage girls' education in the State, a
conducive atmosphere should be created.
As part of a measure for creating a
conducive environment for imparting
education and to encourage the formation
of public confidence in a girls' institution,
it is open to the delegate to form an
assessment that in such an institution,
male candidates should not be appointed
as teachers, save and except in certain
exceptional situations. Those exceptional
situations have also been categorized in
Rule 9. However, in the case of a head of
an institution, a male candidate has been
regarded as not being eligible. There is a
distinction
between
the
duties
and
functions which are discharged by the
head of the institution and by a mere
teacher. The head of an institution has an
important role to play in inculcating
discipline among the teaching and nonteaching staff as well as among the
students. The head of the institution has
duties and functions which a teacher does
not possess. The distinction is based on a
reasonable classification.
12. The Supreme Court in the
celebrated judgment in the case of Air
India Versus Nergesh Meerza7 ruled that
'what Articles 15 (1) and 16 (2) prohibit is
that discrimination should not be made
only and only on the ground of sex. These
Articles of the Constitution do not
prohibit
the
State
from
making
discrimination on the ground of sex
coupled with other considerations'. .
13. For arriving at such a conclusion
their Lordships of the Supreme Court
placed reliance on a previous judgment in
the case of Yusuf Abdul Aziz Versus
State of Bombay8 wherein, it was held
that sex is a permissible classification.
Therein, the Court observed as under: -
"Article 14 is general and must be
read with the other provisions which set
out the ambit of fundamental rights. Sex is
a sound classification and although there
can be no discrimination in general on
404
 INDIAN LAW REPORTS ALLAHABAD SERIES
that
ground,
the
Constitution
itself
provides for special provisions in the case
of women and children. The two articles
read together validate the impugned
clause in Section 497 of the Indian Penal
Code."
14. In a later decision in Miss C.B.
Muthamma Versus Union of India9,
Hon'ble
Mr.
Justice
Krishna
Iyer,
speaking for the Supreme Court made the
following observations: -
"We do not mean to universalise or
dogmatise that men and women are equal
in all occupations and all situations and
do not exclude the need to pragmatise
where the requirements of particular
employment, the sensitivities of sex or the
peculiarities of societal sectors or the
handicaps of either sex may compel
selectivity. But save where the the
differentiation is demonstrable, the rule of
equality
must
govern."
(emphasis
supplied)
15. The legislature or its delegate
can legitimately be of the view that in
order to encourage greater access to
education to girl students in intermediate
education, the post of head of the
institution should be filled in only on the
basis that the candidate, who is chosen,
should not be a male candidate. This
cannot be regarded as being unreasonable
or as violative of Article 14 of the
Constitution. This does not indicate a
legislative opinion formed either by the
state legislature or by its delegate as to the
unsuitability
of
male
candidates
in
general, but an assessment by the rulemaking authority that the interest of
women's education can be sub-served best
by
the
creation
of
a
conducive
environment in which a greater degree of
confidence
is
generated
by
the
appointment of women as teachers or as
heads of institutions. It is trite law that it
is open to the legislature or to its delegate
to take into account the prevailing social
circumstances in the area within its
regulatory power and social realities
which have a bearing on such policy
decisions. Aspects such as the safety of
girl students, the possibility of abuse and
the need to protect girl students of a
particular age group are considerations
which cannot be regarded as being alien
or extraneous to the exercise of regulatory
powers. In this view of the matter, the
impugned Rule cannot be faulted as being
unreasonable or as violative of Article 14.
As time goes by, a regulation which is
conceived in the best interest of young
women students at a particular point of
time, may need to be modulated based
upon experience gained, the development
of education and the awareness of
women's rights in society. When the time
is right to do so is a matter for legislative
judgment on which the Court cannot
express any opinion. Significantly, the
provision in the present case does not
exclude women. A provision which
restricts, curtails or circumscribes the
rights of women - in the workplace, in
educational institutions or elsewhere -
would have to meet a heavy burden. It
would be a discrimination against women
on
grounds
of
gender
which
is
constitutionally impermissible. But the
provision before us is not a provision that
excludes women.
16.
There is no merit in the
submission that the right which has been
conferred by the Act of 1921 has been
taken away by subordinate legislation
which has been framed under the Act of
1982. As a first principle of law, there can
1 All] Manmohan Mishra Vs. State of U.P. & Ors.
405
be no dispute about the proposition that
subordinate legislation is subservient to
an enactment of the state legislature. But,
in the present case, the scheme of the two
state enactments has to be understood in
its correct perspective. The object of
setting up the Secondary Education
Services Selection Board under the Act of
1982, was to substitute the method of
selection which prevailed under the Act of
1921
in
the
field
of
intermediate
education and to confer the power on the
Board
to
regulate
appointments
in
intermediate institutions governed by the
Act of 1921. The powers which have been
vested in the Board, more particularly, by
Section 9, Section 10 and Section 35 are
wide enough to extend to the framing of
rules to define the qualifications of
teachers. This, as we have noted earlier, is
evident from Section 32 which confers a
paramount effect upon the statutory
provisions of the Act of 1982 and the
Rules and Regulations framed thereunder
over the statutory provisions contained in
the Act of 1921 and its Rules and
Regulations in the event of inconsistency.
In fact, while framing Rule 5, the delegate
of
the
legislature
incorporated
the
qualifications contained in Regulation 1
of Chapter II of the Regulations made
under the Act of 1921. Insofar as the
power is concerned, it would have been
open to the subordinate legislation to
frame its own qualifications. However,
while framing Rule 5, the delegate of the
legislature has adopted the convenient
legislative device of incorporating the
qualifications
which
were
already
prescribed under the Act of 1921 while
making Rule 5. These are legislative
modalities which are well accepted. The
Act of 1982, in fact, does contemplate
that the statutory provisions contained in
the Act of 1921 as well as its rules and
regulations must give way in the event of
inconsistency with the Act of 1982 or the
Rules and Regulations framed under it.
17. Insofar as the issue before this
Court is concerned, a considerable degree
of guidance can be obtained from the
judgment of a Supreme Court in Balbir
Kaur and another Vs. U.P. Secondary
Education
Services
Selection
Board,
Allahabad and others10. In that case, an
advertisement was issued under the Act of
1982 for filling up vacancies of principals
in institutions region-wise. The names of
two senior most teachers were to be
forwarded
by
the
Management
in
accordance with Rule 11 (2) (b) of the
Rules of 1998. The challenge in that case
was that candidates who were eligible for
selection under Regulation 1 of Chapter II
of the Regulations framed under the Act
of
1921
had
been
excluded.
The
contention was that Regulation 1 of
Chapter II provided only for a stipulated
experience of Class IX to XII and not
teaching experience as a lecturer, as was
prescribed in the advertisements. In that
context, the Supreme Court held
as
follows:
"Having come to the said conclusion,
the
issue
which
still
survives
for
consideration is whether for appointment
to the post of Principal, the qualifying
experience as stipulated in the said `Note'
would apply or the one prescribed in the
Appendix-A to Regulation I of Chapter II
of the Regulations made under the
Intermediate Act. In our view, answer to
the question can be found in Section 32 of
the Principal Act, which provides that the
provision of the Intermediate Act and
Regulations
made
thereunder
will
continue to be in force in case they are
not inconsistent with the Principal Act
406
 INDIAN LAW REPORTS ALLAHABAD SERIES
and the Rules made thereunder. As noted
hereinbefore `Note' to sub rule (5) of Rule
12
of
1998
Rules
prescribes
the
requirement of experience for the post,
which is different from what is prescribed
in the said Appendix A and, therefore,
there being a conflict between the two
provisions, in the teeth of Section 32, the
said `Note' shall have an overriding effect
over Appendix A insofar as the question
of experience is concerned."
18. The judgment of the Supreme
Court, therefore, is a clear answer to
submission which has been urged on
behalf of the appellant. The Supreme
Court observed that the Note to sub-rule 5
of Rule 12 of the Rules of 1998
prescribed the requirement of experience
for the post which was different from
what was prescribed in the Regulations
framed
under
the
Act
of
1921.
Consequently, the Note would have an
overriding effect insofar as the question of
experience was concerned. .
19. In view of this legal position, we
would have to hold, though for the
reasons which we have indicated, that
there is no merit in the challenge to the
view which has been taken by the learned
Single Judge. The rule-making authority
in framing Rule 9 has not taken over an
essential legislative function. The rulemaking authority has not transgressed the
limitations on its statutory power under
Section 35 of the Act of 1982. Rule 9 is
perfectly
in
conformity
with
the
provisions of the Act of 1982 and cannot
be regarded as being unreasonable.
20. For these reasons, we hold that
the learned Single Judge was not in error
in dismissing the writ petition and
upholding the rejection of the candidature
of the appellant based on the provisions of
Rule 9 of the Act of 1982.
21. The special appeal accordingly
stand dismissed. There shall be no order
as to costs.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Civil Revision No. 404 of 2011
Raghunath Goel
 ...Revisionist
Versus
Yogendra Singh Nehru
...Opposite Party
Counsel for the Revisionist:
Anurag Khanna, Mohit Kumar Singh,
Tarun Agarwal
Counsel for the Opp. Party:
Vijaya Prakash
Small Causes Court Act 1887-Section-25Revision-against order passed by Small
Causes Court-suit for arrears of rent and
eviction
decreed-rate
of
rent
and
executing
of
rent
deed-admittedwhether entire Chaudhary Bhawan or its
part-was under tenantry-being question
of fact-can not be adjudicated in revision
finding based on evidence available on
record-no interference called for.
Held: Para-29
In view of the above the next question
arises that whether this Court should
exercise its jurisdiction under Section 25
to set aside finding of facts recorded by
the
court
below.
For
the
reasons
recorded above, I find that the court
below has recorded finding of facts
against the tenant which are based on
relevant evidence on record. The learned
counsel for the revisionist failed to point