# Muhammad Saghir Khan v. U.P. Sunni Central Board of Waqf, Lko. & Ors

- **Citation:** (2022) 3 ILRA 526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-19
- **Case number:** Special Appeal No. 167 of 2021
- **Bench:** Rajesh Bindal, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/muhammad-saghir-khan-v-u-p-sunni-central-board-of-waqf-lko-ors-48213
- **Pages:** 8

## Headnote

A. Allahabad High Court Rules, 1952 - Ch.
VIII R. 5 - Waqf Act, 1995 - Special
3 All. Muhammad Saghir Khan Vs. U.P. Sunni Central Board of Waqf, Lko. & Ors.
527
Appeal against the Judgment passed in
writ proceeding emerges from the order of
Waqf Tribunal - Maintainability - Held, in
view of the embargo placed by Ch. VIII R.
5 of the Allahabad High Court Rules, 1952,
the
special
appeal
would
not
be
maintainable against such an order passed
by a Single Judge of the Court exercising
powers under Article 226 or 227 of the
Constitution of India. (Para 17)
B. Constitution of India - Article 226 -
Waqf Act, 1995 - Writ - Maintainability -
Alternative remedy available under the
Waqf Act - Single Judge dismissed writ
petition on the ground of alternative
remedy - Validity challenged - Held, the
order of Civil judge if treated to be an
order of a Civil Court would not be
amenable to a writ of certiorai under
Article 226 - Held further, if the order is
treated to be an order passed by the
Tribunal under the Waqf Act then also the
said order can be assailed by taking
recourse to the statutory remedy available
under the Waqf Act and the writ petition
may not be the appropriate remedy -
Virudhunagar's case relied upon. (Para 15
and 16)
Special Appeal dismissed. (E-1)
List of Cases cited :-

## Text

526 INDIAN LAW REPORTS ALLAHABAD SERIES
Judge while adjudicating the validity of the
Government Order dated 18.02.2000.

48. The most relevant aspect of the
matter which ought to have been taken
into consideration by the learned Single
Judge is as to whether the petitioners stood
classified/declared as teachers. However,
without taking into account the decision
taken by the Board of Management in its
86th meeting learned Single Judge has
relied upon the decision taken in 85th
meeting and has thus given a finding that
once the petitioners were declared teachers
in
the
meeting
of
the
Board
of
Management held on 03.03.1992, they
were entitled to be given the pay scale of
Rs.2200-4000/- as is admissible to a
teacher
(Lecturer/Assistant
Professor)
from the said date and hence the earlier
Government Order dated 22.07.1999 was
rightly issued.

49. The fallacy in the said reasoning
lies in ignoring the decision of the Board of
Management taken in its 86th meeting held
on 30.01.1993 whereby the decision taken
in the 85th meeting was consciously not
ratified.

50. For the reasons given and
discussion made above, in our final
analysis we do not find ourselves in
agreement with the judgment and order
dated 19.02.2021 passed by the leaned
Single Judge which is under appeal before
us.

51. The special appeal is, thus,
allowed.

52. The judgment and order dated
19.02.2021 passed by the learned Single
Judge in Writ Petition No.327 (S/B) of
2000 is hereby set aside.

53. However, having regard to the
overall facts and circumstances of the case
we direct that no recovery or adjustment of
any amount from the respondent nos.1 to
19/petitioners shall be made if they have
been paid their salaries/emoluments in
terms of the earlier Government Order
dated 22.07.1999. Having directed as above
for not making any recovery or adjustment
of any amount from the petitioners, we also
direct that the petitioners shall be treated to
have been working on the post of Senior
Research Assistants and not on the post of
Teacher (Lecturer/Assistant Professor) but
they shall be continued to be paid salary in
the pay scale of Rs.2200-4000/- with the
benefit of revision of pay scales which
might have been effected from time to time
till date or which may be effected in future.

54. There will be no order as to costs.
----------
(2022)03ILR A526
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.03.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal No. 167 of 2021
arising out of Writ -C No. 5314 of 2021

Muhammad Saghir Khan ...Appellant
Versus
U.P. Sunni Central Board of Waqf, Lko. &
Ors. ...Respondents

Counsel for the Appellant:
Sri Arshan Ahsan Siddiqui

Counsel for the Respondents:
Sri S.Q.H. Rizvi, Sri Gopesh Tripathi

A. Allahabad High Court Rules, 1952 - Ch.
VIII R. 5 - Waqf Act, 1995 - Special
3 All. Muhammad Saghir Khan Vs. U.P. Sunni Central Board of Waqf, Lko. & Ors.
527
Appeal against the Judgment passed in
writ proceeding emerges from the order of
Waqf Tribunal - Maintainability - Held, in
view of the embargo placed by Ch. VIII R.
5 of the Allahabad High Court Rules, 1952,
the
special
appeal
would
not
be
maintainable against such an order passed
by a Single Judge of the Court exercising
powers under Article 226 or 227 of the
Constitution of India. (Para 17)
B. Constitution of India - Article 226 -
Waqf Act, 1995 - Writ - Maintainability -
Alternative remedy available under the
Waqf Act - Single Judge dismissed writ
petition on the ground of alternative
remedy - Validity challenged - Held, the
order of Civil judge if treated to be an
order of a Civil Court would not be
amenable to a writ of certiorai under
Article 226 - Held further, if the order is
treated to be an order passed by the
Tribunal under the Waqf Act then also the
said order can be assailed by taking
recourse to the statutory remedy available
under the Waqf Act and the writ petition
may not be the appropriate remedy -
Virudhunagar's case relied upon. (Para 15
and 16)
Special Appeal dismissed. (E-1)
List of Cases cited :-
1. Whirlpool Corp.Vs Registrar of Trade Marks,
Mumbai & ors.; (1998) 8 SCC 1
2. Syed Yakub Vs K.S. Radhakrishanan & ors.;
AIR 1964 SC 477
3. Sheet Gupta Vs St. of U.P. & ors.; 2009 SCC
Online All 1613
4. Radhey Shyam & anr. Vs Chhabi Nath & ors.;
(2015) 5 SCC 423
5.
Virudhunagar
Hindu
Nadargal
Dharma
Paribalana Sabai & ors. Vs Tuticorin Educational
Society & ors.; (2019) 9 SCC 538
6. Authorized Officer, State Bank of Travancore
& anr. Vs Mathew K.C.; (2018) 3 SCC 85
7. CIT Vs Chhabil Dass Agarwal; (2014) 1 SCC
603
(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Arshad Ahsan Siddiqui,
learned counsel for the appellant and Sri
S.Q.H. Rizvi, learned Counsel for the
respondents.

2. The instant appeal has been
preferred against the judgment and order
dated 23.02.2021 passed by the learned
Single Judge in Writ Petition No. 5314
(MS) of 2021 (Mohd. Saghir Khan Vs. U.P.
Sunni Central Board, Waqf and Others)
whereby the writ petition was dismissed on
the ground of availability of alternate
statutory remedy.

3. The learned counsel for the
appellant submits that the learned Single
Judge has erred in dismissing the writ
petition on the ground of availability of
alternate remedy despite a specific ground
having been raised that the order impugned
in the writ petition was wholly without
jurisdiction and such an order could be
assailed in a writ petition in view of the
decision of the Apex Court in the case of
Whirlpool Corporation Vs. Registrar of
Trade Marks, Mumbai and Others
reported in (1998) 8 SCC 1.

4. It has further been urged that the
learned Single Judge has failed to notice that
the order impugned in the writ petition was
wholly without jurisdiction as it had been
passed by the Civil Court by usurping the
jurisdiction of a Waqf Tribunal and such an
order was not liable to be sustained and was
amenable to the writ of certiorari as held by
the Apex Court in the case of Syed Yakub
Vs. K.S. Radhakrishanan and Others
reported in AIR 1964 SC 477.

5. Thus, it is urged that the learned
Single Judge in the aforesaid backdrop
528 INDIAN LAW REPORTS ALLAHABAD SERIES
ought not to have relegated the appellant to
the remedy of filing a revision under the
provisions of the Waqf Act as the the order
impugned was passed by the Civil Court
which did not have jurisdiction to pass the
said order, hence, the Special Appeal
deserves to be allowed.

6. Per contra, the learned counsel for
the respondents has urged that the instant
Special Appeal is not maintainable in view
of the fact that the order impugned emerges
from proceedings of a Civil Court/Tribunal
under the provisions of Waqf Act, hence, in
light of a full Bench decision of this Court
in the case of Sheet Gupta Vs. State of
U.P. and Others reported in 2009 SCC
Online All 1613 the appeal deserves to be
dismissed.

7. Having heard the learned counsel for
the parties and from the perusal of the
material available on record, it appears that
one Sri Shekh Mohd. Yakub challenged an
order dated 18.07.1985 whereby the Waqf
Board had appointed Sri Anwar Rashid Khan
as Mutawalli of Waqf No. 4. Madarasa
Rahmania, Raebareli. This challenge was
made before the Civil Judge/the Waqf
Tribunal, Raebareli and registered as Case
No. 74 of 1985 (Shekh Mohd. Yakub Vs.
U.P. Central Sunni Board, Waqf and Others).

8. The said case came to be decided exparte by means of judgment dated 22.08.1986
by the Civil Judge/Waqf Tribunal and the
order dated 18.07.1985 by which Sri Anwar
Rashid Khan was appointed as Mutawalli
was set aside and it was further held that the
property in question was not a waqf property
but was a self-acquired property of Sheikh
Mohd. Yakub.

9. The Waqf Board thereafter
preferred Revision No. 179 of 1986 before
the High Court, which was allowed by
means of judgment dated 12.11.2007 and
the matter was remanded to the Court
concerned to decide the case afresh. The
record further indicates that after remand,
the matter was again considered by the
Tribunal and by means of order dated
20.05.2014 it once again decreed the suit
and the order dated 18.07.1985 was set
aside.

10. Being aggrieved against the
aforesaid order dated 20.05.2014, the
appellant preferred a writ petition before
the learned Single Judge which has been
dismissed on the ground of availability of
statutory remedy of Revision as provided
under the Waqf Act by means of order
dated 23.03.2021, which is under challenge
in the instant appeal.

11. In order to ascertain whether the
Special Appeal under Chapter VIII Rule 5
of the Allahabad High Court Rules, 1952 is
maintainable, it will be gainful to glance at
the said provision which reads as under:-

"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 the 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
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 of jurisdiction under any Uttar
Pradesh Act or under any Central Act, with
respect to any of the matters enumerated in
3 All. Muhammad Saghir Khan Vs. U.P. Sunni Central Board of Waqf, Lko. & Ors.
529
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."

12. If the facts of the instant case are
noticed in context with the submissions
made by the learned counsel for the
appellant, it would clearly reveal that the
proceedings were initiated under the Uttar
Pradesh Waqf Act, 1960. At the relevant
time, the Civil Judge was vested with the
powers of the Waqf Tribunal and as noticed
above the order passed by the Waqf
Tribunal was assailed in a civil revision
before this Court and while allowing the
civil revision, the matter was remanded to
the Tribunal to re-consider the matter,
which was done by means of the order
dated 20.05.2014.

13. By the time, the matter was
remanded vide order dated 12.11.2007. The
Uttar Pradesh Waqf Act, 1960 had been
repealed and the Waqf Act of 1995 came
into force.

14. Now either way, whether the
order dated 20.05.2014 passed by the Civil
Judge, Raebareli is treated to be an order
passed by a Civil Court in its plenary
jurisdiction or a Tribunal exercising powers
under the Waqf Act, the fact remains that
against such an order, the appellant if
aggrieved has an alternate and statutory
remedy available under the C.P.C. or the
Waqf Act, 1995 as the case may be.

15. The order of Civil judge if treated
to be an order of a Civil Court would not be
amenable to a writ of certiorai under
Article 226 of the Constitution of India as
held by the Apex Court in Radhey Shyam
and Another Vs. Chhabi Nath and others
reported in (2015) 5 SCC 423 and the
relevant portion reads as under:-

"18. While the above judgments
dealt with the question whether judicial
order could violate a fundamental right, it
was clearly laid down that challenge to
judicial orders could lie by way of appeal
or revision or under Article 227 and not by
way of a writ under Articles 226 and 32.

19. Another Bench of three
Judges in Sadhana Lodh v. National
Insurance Co. Ltd. [(2003) 3 SCC 524 :
2003 SCC (Cri) 762] considered the
question whether remedy of writ will be
available when remedy of appeal was on
limited grounds. This Court held: (SCC p.
527, para 6)

"6. The right of appeal is a statutory
right and where the law provides remedy by
filing an appeal on limited grounds, the
grounds of challenge cannot be enlarged by
filing a petition under Articles 226/227 of the
Constitution on the premise that the insurer
has limited grounds available for challenging
the award given by the Tribunal. Section
149(2) of the Act limits the insurer to file an
appeal on those enumerated grounds and the
appeal being a product of the statute it is not
open to an insurer to take any plea other than
those provided under Section 149(2) of the
Act (see National Insurance Co. Ltd. v.
Nicolletta Rohtagi [(2002) 7 SCC 456 : 2002
SCC (Cri) 1788] ). This being the legal
position, the petition filed under Article 227 of
the Constitution by the insurer was wholly
misconceived. Where a statutory right to file
an appeal has been provided for, it is not open
to the High Court to entertain a petition under
Article 227 of the Constitution. Even if where
a remedy by way of an appeal has not been
530 INDIAN LAW REPORTS ALLAHABAD SERIES
provided for against the order and judgment of
a District Judge, the remedy available to the
aggrieved person is to file a revision before the
High Court under Section 115 of the Code of
Civil Procedure. Where remedy for filing a
revision before the High Court under Section
115 CPC has been expressly barred by a State
enactment, only in such case a petition under
Article 227 of the Constitution would lie and
not under Article 226 of the Constitution. As a
matter of illustration, where a trial court in a
civil suit refused to grant temporary injunction
and an appeal against refusal to grant
injunction has been rejected, and a State
enactment has barred the remedy of filing
revision under Section 115 CPC, in such a
situation a writ petition under Article 227
would lie and not under Article 226 of the
Constitution. Thus, where the State Legislature
has barred a remedy of filing a revision
petition before the High Court under Section
115 CPC, no petition under Article 226 of the
Constitution would lie for the reason that a
mere wrong decision without anything more is
not enough to attract jurisdiction of the High
Court under Article 226 of the Constitution.

21. Thus, it has been clearly laid
down by this Court that an order of the civil
court could be challenged under Article
227 and not under Article 226."

27. Thus, we are of the view that
judicial orders of civil courts are not
amenable to a writ of certiorari under
Article 226. We are also in agreement with
the view [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] of the referring Bench
that a writ of mandamus does not lie
against a private person not discharging
any public duty. Scope of Article 227 is
different from Article 226."

16. On the other hand, if the order is
treated to be an order passed by the
Tribunal under the Waqf Act then also the
said order can be assailed by taking
recourse to the statutory remedy available
under the Waqf Act and the writ petition
may not be the appropriate remedy. The
Apex Court in the case of Virudhunagar
Hindu Nadargal Dharma Paribalana
Sabai
and
others
vs.
Tuticorin
Educational Society and others reported
in (2019) 9 SCC 538 had the occasion to
consider the issue of jurisdiction under
Article 226 of the Constitution of India viz
a viz the availability of adequate statutory
remedy and it held as under:-

"11. Secondly, the High Court
ought to have seen that when a remedy of
appeal under Section 104(1)(i) read with
Order 43, Rule 1(r) of the Code of Civil
Procedure, 1908, was directly available,
Respondents 1 and 2 ought to have taken
recourse to the same. It is true that the
availability of a remedy of appeal may not
always be a bar for the exercise of
supervisory jurisdiction of the High Court.
In
A.
Venkatasubbiah
Naidu
v.
S.
Chellappan [A. Venkatasubbiah Naidu v. S.
Chellappan, (2000) 7 SCC 695] , this Court
held that "though no hurdle can be put
against the exercise of the constitutional
powers of the High Court, it is a wellrecognised principle which gained judicial
recognition that the High Court should
direct the party to avail himself of such
remedies
before
he
resorts
to
a
constitutional remedy.

12. But courts should always bear
in mind a distinction between (i) cases
where such alternative remedy is available
before civil courts in terms of the
provisions of Code of Civil Procedure, and
(ii) cases where such alternative remedy is
available under special enactments and/or
statutory rules and the fora provided therein
3 All. Muhammad Saghir Khan Vs. U.P. Sunni Central Board of Waqf, Lko. & Ors.
531
happen to be quasi-judicial authorities and
tribunals. In respect of cases falling under
the first category, which may involve suits
and other proceedings before civil courts,
the availability of an appellate remedy in
terms of the provisions of CPC, may have
to be construed as a near total bar.
Otherwise, there is a danger that someone
may challenge in a revision under Article
227, even a decree passed in a suit, on the
same grounds on which Respondents 1 and
2 invoked the jurisdiction of the High
Court. This is why, a 3-member Bench of
this Court, while overruling the decision in
Surya Dev Rai v. Ram Chander Rai [Surya
Dev Rai v. Ram Chander Rai, (2003) 6
SCC 675] , pointed out in Radhey Shyam v.
Chhabi Nath [Radhey Shyam v. Chhabi
Nath, (2015) 5 SCC 423 : (2015) 3 SCC
(Civ) 67] that "orders of civil court stand
on different footing from the orders of
authorities or tribunals or courts other than
judicial/civil courts".

17. Thus, the view taken by the
learned
Single
Judge
relegating
the
appellant to avail the alternate statutory
remedy, cannot be said to be erroneous.
However, the writ petition filed before the
learned Single Judge either under Article
226 or 227 of the Constitution of India,
which emerges from proceedings from the
Civil Court/Tribunal under the Waqf Act
and in view of th embargo placed by
Chapter VIII Rule 5 of the Allahabad High
Court Rules, 1952, the special appeal
would not be maintainable against such an
order passed by a Single Judge of the Court
exercising powers under Article 226 or 227
of the Constitution of India. A full Bench
of this Court in Sheet Gupta's case (supra)
has held as under:

"18. Having given our anxious
consideration to the various plea raised by
the learned counsel for the parties, we find
that from the perusal of Chapter VIII Rule
5 of the Rules a special appeal shall lie
before this Court from the judgment passed
by one Judge of the Court. However, such
special appeal will not lie in the following
circumstances:

1. The judgment passed by one
Judge
in
the
exercise
of
appellate
jurisdiction, in respect of a decree or order
made
by
a
Court
subject
to
the
Superintendence of the Court;

2. The order made by one Judge
in the exercise of revisional jurisdiction;

3. The order made by one Judge
in
the
exercise
of
the
power
of
Superintendence of the High Court;

4. The order made by one Judge
in the exercise of criminal jurisdiction;

5. The order made by one Judge
in the exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution of India in respect of any
judgment, order or award by

(i) the tribunal,

(ii) Court or

(iii) 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 of India;

6. the order made by one Judge in
the exercise of jurisdiction conferred by
532 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 226 or 227 of the Constitution of
India in respect of any judgment, order or
award of

(i) the Government or

(ii) any officer or

(iii) authority,

made or purported to be made in
the exercise or purported exercise of
appellate or revisional jurisdiction under
any such Act, i.e. 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 of
India.

20. The exercise of original
jurisdiction by any tribunal, Court or
statutory arbitrator or exercise of appellate
or
revisional
jurisdiction
by
the
Government or any officer or authority is to
be under any U.P. Act or any Central Act
with respect to the matters enumerated in
the State List or the Concurrent List in the
Seventh Schedule to the Constitution of
India. The powers have to be exercised
under the Act and not given by the Act. As
held by the Apex Court in the case of Dr.
Indramani Pyarlal Gupta (supra) the words
''powers exercised under the Act' would
comprehensively embrace in its power
conferred by any bye laws or delegated
legislation. If the appellate or revisional
powers
has
been
conferred
by
the
Government trough an order issued under
the delegated provisions of the Act then it
is definitely a power exercised under the
Act and in that event no special appeal
under Chapter VIII Rule 5 of the Rules
would lie against the judgment and order
passed by the learned single Judge. In the
present
case,
we
find
that
the
Commissioner
had
exercised
powers
conferred
under
Clause
28
of
the
Distribution Order, 2004, which order has
been passed under the provisions of the
Act, therefore, the appellate power has
been exercised under the Act and, thus, no
special appeal would lie. It may be
mentioned here that right of an appeal is a
statutory right and not a vested right and
can be hedged by conditions as held by the
Apex Court in the cases of Smt. Ganga Bai
(supra) and Vijay Prakash & Jawahar
(supra). The Division Bench of this Court
while deciding the case of Ram Dhyan
Singh (supra), has incorrectly taken the
view that the order should be passed in
exercise
of
appellate
or
revisional
jurisdiction conferred by some Act whereas
under Chapter VIII Rule 5 of the Rules, a
special appeal would not lie if the appellate
or
revisional
jurisdiction
have
been
conferred on an authority under any U.P.
Act or Central Act relating to any of the
entries enumerated in the State List or
Concurrent List of the Seventh Schedule of
the Constitution of India."

18. In so far as the reliance placed by
the learned counsel for the appellant on the
decision in Whirlpool Corporation's case
(supra) is concerned, the proposition of law
as enumerated therein is not disputed,
however, the fact remains that the appellant
has a statutory remedy of filing a revision
under the Waqf Act, 1995 and the Apex
Court in the case of Authorized Officer,
State Bank of Travancore and another vs.
Mathew K.C. reported in (2018) 3 SCC 85
has held as under:-

"5. The discretionary jurisdiction
under Article 226 is not absolute but has to
be exercised judiciously in the given facts
of a case and in accordance with law. The
3 All. Vivek Kumar Upadhyay Vs. State of U.P. & Ors.
533
normal rule is that a writ petition under
Article 226 of the Constitution ought not to
be
entertained
if
alternate
statutory
remedies are available, except in cases
falling within the well-defined exceptions
as observed in CIT v. Chhabil Dass
Agarwal [CIT v. Chhabil Dass Agarwal,
(2014) 1 SCC 603] , as follows: (SCC p.
611, para 15)

"15. Thus, while it can be said
that this Court has recognised some
exceptions to the rule of alternative remedy
i.e. where the statutory authority has not
acted in accordance with the provisions of
the enactment in question, or in defiance of
the fundamental principles of judicial
procedure, or has resorted to invoke the
provisions which are repealed, or when an
order has been passed in total violation of
the principles of natural justice, the
proposition
laid
down
in
Thansingh
Nathmal case [Thansingh Nathmal v. Supt.
of Taxes, AIR 1964 SC 1419] , Titaghur
Paper Mills case [Titaghur Paper Mills Co.
Ltd. v. State of Orissa, (1983) 2 SCC 433 :
1983 SCC (Tax) 131] and other similar
judgments that the High Court will not
entertain a petition under Article 226 of the
Constitution if an effective alternative
remedy is available to the aggrieved person
or the statute under which the action
complained of has been taken itself
contains a mechanism for redressal of
grievance still holds the field. Therefore,
when a statutory forum is created by law
for redressal of grievances, a writ petition
should not be entertained ignoring the
statutory dispensation."

19. Thus, in light of the proposition as
noted above also considering the dictum of
the Apex Court in the case of Vidhunagar
(Supra), the appellant could not encompass
its
case
within
the
exceptions
as
enumerated in the case of CIT Vs. Chhabil
Dass Agarwal reported in (2014) 1 SCC
603, hence, the case of Whirlpool (supra)
will not come to the rescue of the appellant.
Even the case of Syed Yakub (supra) has
no applicability in light of the decision of
Radhey Shyam (supra) as noted above.
Moreover, the learned counsel for the
appellant could not dispute the embargo
placed by the the binding precedent of the
Full Bench of Sheet Gupta (supra), which
is squarely applicable to the present case.

20. In light of the detailed discussion,
this Court is of the considered view that the
Special Appeal is not maintainable and it is
accordingly dismissed. No order as to
costs.
----------
(2022)03ILR A533
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

WRIT A No. 364 of 2022
and other cases

Vivek Kumar Upadhyay ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Chandra Tewari

Counsel for the Respondents:
C.S.C., Rishabh Tripathi

A. Service Law - Intermediate Education
Act, 1921 - Section 16-E - UP Secondary
Education Services Selection Board, Rules,
1998 - Rule 11-(2) (b) - Post of Principal
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Selection
and
appointment
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Requirement of being two senior most
Lecturer of institution, non-fulfillment
thereof - Effect - Held, none of the