# Mohammad Ehteshamul Hasan v. State of U.P. and others

- **Citation:** (2005) 4 ILRA 1187
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-13
- **Case number:** Civil Misc. Writ Petition No.47817 of 2005
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-ehteshamul-hasan-v-state-of-u-p-and-others-40592
- **Pages:** 3

## Headnote

Constitution of India, Art 226-Sevice
Law- Right to appointment-vacancies of
Tuberculosis Health Visitors-advertised
on
2.3.05
prescribing
the
essential
qualification-Intermediate with scienceafter
interview-
by
subsequent
advertisement the requisite qualification
prescribed Intermediate with Biology-
challenged on the ground once the
petitioner participated in the interview
as per earlier advertisement-it cannot be
denied
by
the
change of requisite
qualification-held-the
subsequent
advertisement issued as per guidelines
of State Govt.- in absence of essential
qualification petitioner has no right to
challenge the subsequent advertisement.

Held: Para 6

Considering the aforesaid facts and
circumstances and keeping in view that
the subsequent advertisement has been
issued on the basis on the guidelines
issued by the State Government and also
considering that the petitioner does not
posses the essential qualification for
appointment on the post of T.B.H.V. even
according to the guidelines of the Central
Government as have been relied by the
petitioner and also keeping in view the
law laid down by the Supreme court in
the aforesaid two cases relied upon by
the learned counsel for the respondents,
the prayer made in this writ petition is
not liable to be granted.
Case law discussed:
J.T. 1991 (2) SC-380
1994 (6) SCC-151

## Text

4 All] Mohammad Ehteshamul Hasan V. State of U.P. and others
1187
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.47817 of 2005

Mohammad Ehteshamul Hasan

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

Counsel for the Petitioner:
Sri Jai Prakash Rai

Counsel for the Respondents:
Sri K.C. Sinha
Sri D.S. Shukla
Sri V.K. Singh
S.C.

Constitution of India, Art 226-Sevice
Law- Right to appointment-vacancies of
Tuberculosis Health Visitors-advertised
on
2.3.05
prescribing
the
essential
qualification-Intermediate with scienceafter
interview-
by
subsequent
advertisement the requisite qualification
prescribed Intermediate with Biology-
challenged on the ground once the
petitioner participated in the interview
as per earlier advertisement-it cannot be
denied
by
the
change of requisite
qualification-held-the
subsequent
advertisement issued as per guidelines
of State Govt.- in absence of essential
qualification petitioner has no right to
challenge the subsequent advertisement.

Held: Para 6

Considering the aforesaid facts and
circumstances and keeping in view that
the subsequent advertisement has been
issued on the basis on the guidelines
issued by the State Government and also
considering that the petitioner does not
posses the essential qualification for
appointment on the post of T.B.H.V. even
according to the guidelines of the Central
Government as have been relied by the
petitioner and also keeping in view the
law laid down by the Supreme court in
the aforesaid two cases relied upon by
the learned counsel for the respondents,
the prayer made in this writ petition is
not liable to be granted.
Case law discussed:
J.T. 1991 (2) SC-380
1994 (6) SCC-151

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard learned counsel for the
petitioner as well as learned Standing
Counsel
appearing
for
the
State-
respondents no. 1,2 and 3, Sri V.K. Singh,
learned counsel appearing for respondent
no. 4 and Sri D.S. Shukla, learned
Additional Standing Counsel for the
Union of India appearing for respondent
no. 5.

2. The facts in brief are that in
response to an advertisement issued on
2.3.2005 by respondent no. 4, District
Tuberculosis
Officer
as
Member
Secretary of the District Tuberculosis
Control
Society,
Allahabad
inviting
applications for filling up the post of
Tuberculosis Health Visitor (T.B.H.V.)
the
petitioner
had
applied.
The
qualification as mentioned in the said
advertisement was that the candidate
should have passed Intermediate with
Science. It is not the case of the petitioner
that in response to the said application
filed by the petitioner he had been call for
interview or any other action has been
taken with regard to his selection.
However, a fresh advertisement was
issued
on
14.6.2005
again
inviting
applications for the post of T.B.H.V. in
the subsequent advertisement the essential
qualification for appointment on the post
of T.B.H.V. was Intermediate with
1188 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Biology. In this advertisement it was also
provided that those candidates who have
already applied in response to the earlier
advertisement need not apply afresh and
their
earlier
applications
shall
be
considered. According to the petitioner ha
has passed Intermediate with Science but
not with Biology as a subject. The
petitioner contends that since he was
eligible on the basis of the qualification
mentioned in the first advertisement dated
2.3.2005, his application ought to have
been considered in response to the
subsequent advertisement also and he
should have been called for interview.

3. The submission of the learned
counsel for the petitioner is that as per the
guidelines issued by the Government of
India for making appointments on certain
posts (filed as Annexure-S.A.3 to the
supplementary affidavit) the essential
qualification for the post of T.B.H.V. was
only Intermediate with Science and
experience
of
working
as
MPW/LHV/ANM. He thus contends that
since the guidelines do not specify that
the candidates should have biology as a
subject in Intermediate, such condition as
mentioned
in
the
subsequent
advertisement is illegal. This writ petition
has thus been filed with the subsequent
advertisement dated 14.6.2005 may be
quashed and the petitioner may be
considered for appointment to the post of
T.B.H.V.

4.

Learned
Standing
Counsel
appearing for the State-respondents has,
on instruction received from his client,
produced before me the circular dated
2.8.2002 issued by the State Government
to all the District tuberculosis Control
Society wherein it has been provided that
the essential qualification for the post of
T.B.H.V. is Intermediate Science with
biology as a subject. It is not disputed b
the petitioner that the society is controlled
by the State Government and funds are
provided by it and that the members of the
society are all functionaries of the State
Government.
Thus,
the
subsequent
advertisement issued in consonance with
the
direction
given
by
the
State
Government cannot be said to be illegal.
Even as per the own case of the petitioner
the essential qualification for appointment
for the post of T.B.H.V. as per the
guidelines
issued
by
the
Central
Government was that a candidate should
be
Intermediate
with
Science
and
experience
of
working
as
MPW/LHV/ANM. It is not the case of the
petitioner
that
he
possesses
such
qualification. According to him he is only
intermediate with Science. It is nowhere
stated that he has experience as prescribed
in
the
guidelines
of
the
Central
Government.

5. Sri V.K. Singh, learned counsel
appearing for the contesting respondent
no. 4 has further submitted that even after
selection for appointment of a particular
post the candidate does not acquire any
indefeasible right to be appointment.
Reliance in this regard has been placed on
two decisions of the Apex Court namely,
Shankarasan Dash Vs. Union of India
JT 1991 (2) S.C. 380 and State of M.P.
and others Vs. Raghuveer Singh Yadav
and others (1994) 6 S.C.C. 151. As such,
it has been contended that in such view of
the matter, the petitioner who had merely
filed his application for being given
appointment does not acquire any right to
be appointment or be considered for
appointment.
4 All] Naresh Chandra Sharma V. State of U.P. and another
1189
6. Considering the aforesaid facts
and circumstances and keeping in view
that the subsequent advertisement has
been issued on the basis on the guidelines
issued by the State Government and also
considering that the petitioner does not
posses the essential qualification for
appointment on the post of T.B.H.V. even
according to the guidelines of the Central
Government as have been relied by the
petitioner and also keeping in view the
law laid down by the Supreme court in the
aforesaid two cases relied upon by the
learned counsel for the respondents, the
prayer made in this writ petition is not
liable to be granted.

7. The writ petition lacks merit and
is, accordingly, dismissed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 7789 of 2004

Naresh Chandra Sharma
...Petitioner
Versus
State of U.P. & another ..Opposite parties

Counsel for the Petitioner:
Sri M.D. Singh "Shekhar"

Counsel for the Opposite Parties:
Sri Pushoendra Singh
S.C.

U.P. Fundamental Rules- Rule-56 (c)
Compulsory
Retirement-mere
acceptance of the report of screening
committee-by
endorsement
of
word
"Anumodit"
cannot
be
termed
as
application
of
mind-the
District
Magistrate not exercised its jurisdiction
strict in accordance with the Rule 56(6)-
order
compulsory
retirement
of
petitioner liable to quashed.
Held: Para-11 and 15

From the records of the proceedings as
aforesaid this Court is satisfied that
there has been non application of mind
by the District Magistrate with regards to
the
character
roll
entries
of
the
petitioner as well as to the fact as to
whether the nature of entries in the
character roll was such so as to come to
the conclusion that the petitioner was a
fit person to be compulsorily retired. The
District Magistrate has only approved the
proposal of the Screening Committee to
the effect that the petitioner may be
compulsorily
retired.
The
recommendation
of
the
Screening
Committee is only an opinion. It is the
satisfaction of the appointing authority
which should determine as to whether
powers under Section 56 (c) of the
fundamental rules are to be exercised.
Such a satisfaction must be arrived at
after due application of mind to the
service record of concerned government
servant. The Appointing authority has to
decide that the employee has become a
dead wood and it is in public interest to
retire him compulsorily. Mere acceptance
of the report of Screening Committee in
the facts of the case by endorsement of
the word 'Anumodit' by the appointing
authority (District Magistrate) cannot
beheld to a decision to compulsorily
retire the petitioner after due application
of mind as required under Fundamental
Rules 56 (c).

With
reference
to
aforesaid
legal
principles
enunciated,
this
Court
is
satisfied, that the facts of the present
case
the
order
of
compulsorily
retirement
passed
by
the
District
Magistrate dated 12.1.2004 is legally not
justified as he as not exercised his
jurisdiction in accordance with the Rule
56( c) and, therefore, is hereby quashed.
Case law discussed:
2005 (5) ESC-2431