# Ram Awatar Mishra and Ors v. Uttar Pradesh Basic Shiksha Parishad and Ors

- **Citation:** (2013) 3 ILRA 1244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-04
- **Case number:** Civil Misc. Writ Petition No.13918 of 1996
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-awatar-mishra-and-ors-v-uttar-pradesh-basic-shiksha-parishad-and-ors-42671
- **Pages:** 3

## Headnote

Constitution of India, Art.-226- claim about
training-without being validly appointedwithout
possessing
minimum
requisite
qualification-can not be enforced by writ
court-petition dismissed.

Held: Para-5
In view of above decision of Division
Bench, after promulgation of statutory
rules, mandating that no appointment
shall be made if a person does not
possess requisite minimum educational
qualification
including
training,
the
question of engagement of an untrained
person after promulgation of rule and
thereafter directing him to sent for
training, does not arise.

Case Law discussed:
Special Appeal No. 10 of 2007.

## Text

1244 INDIAN LAW REPORTS ALLAHABAD SERIES
Court is of the view that the order of the
Tribunal, relating to the superiority of the
model, offered by the petitioner shall also
be reconsidered afresh.

22. In the light of the aforesaid, the
impugned order of the Tribunal dated
11.2.2011 is quashed. The writ petition is
allowed. The matter is again remitted to
the Tribunal to decide the appeal of the
petitioner afresh within three months from
the date of the production of a certified
copy of the order, on the question of
residence and model of the vehicle. It
would be open to the parties to file fresh
evidence on the question of residence and
superiority of model of vehicle.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.13918 of 1996

Ram Awatar Mishra and Ors. ..Petitioners
Versus
Uttar Pradesh Basic Shiksha Parishad
and Ors.... Respondents
Counsel for the Petitioners:
Sri B.R. Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226- claim about
training-without being validly appointedwithout
possessing
minimum
requisite
qualification-can not be enforced by writ
court-petition dismissed.

Held: Para-5
In view of above decision of Division
Bench, after promulgation of statutory
rules, mandating that no appointment
shall be made if a person does not
possess requisite minimum educational
qualification
including
training,
the
question of engagement of an untrained
person after promulgation of rule and
thereafter directing him to sent for
training, does not arise.

Case Law discussed:
Special Appeal No. 10 of 2007.
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for the
petitioners and perused the record.

2. The petitioners admittedly were
not trained upto 1981 and claimed that
they were sent for inservice training in
1983 though such training was meant for
only those teachers who were validly
appointed at the time when statutory rules
providing
minimum
qualification
including training were not existed.

3. This aspect has been considered in
the light of relevant Government order by a
Division Bench of this Court (in which I was
a member) in Special Appeal No. 10 of
2007, State of U.P and others Vs. Shailesh
Kumar Dwivedi and others, decided on
17.12.2008. This Court held as under:

"In view thereof, this appeal is
disposed of directing the competent
authority to consider the case of the
petitioners-respondents in the light of two
conditions provided in the judgment of
the Hon'ble Single Judge, impugned in
this appeal, as well as in the light of the
conditions provided by the Division
Bench in its judgment in the case of Kali
Charan Singh Arya (supra). Further, if the
petitioners have been appointed after the
enforcement of 1975 Rules of 1970 Rules
in Junior Primary School or Junior High
School, as the case may be, in violation of
the
provisions
thereof
and
without
possessing training qualification, such
petitioners cannot be allowed to undergo
3 All] Ram Awatar Mishra and Ors. Vs. Uttar Pradesh Basic Shiksha Parishad and Ors.
1245
training pursuant to the Government
Order dated 6.9.1994. Thus, only those
petitioners-respondents, who fulfill all the
aforesaid requirement and directions,
shall be allowed to complete their training
and their result shall also be declared."

4. Thereafter a recall application
was also filed in the aforesaid appeal
which was heard at length and decided
vide
order
dated
04.09.2009.
With
reference to statutory rules this Court
noticed contentions of Sri Ashok Khare,
learned Senior Advocate and held as
under:

"Thus, under the Rules, there is a
clear mandate that a person who does not
possess requisite qualification shall not be
appointed.
Therefore,
after
the
enforcement of the above two set of
Rules, any appointment, if made on the
post of Assistant Teacher in a Primary
School governed by the aforesaid Rules,
without adhering to the above Rules, is
clearly in the teeth of the aforesaid Rules.
In
the
absence
of
any
provision
empowering the State Government or any
other authority to relax any of the
provision pertaining to qualification etc.
under the rules, such appointment cannot
be said to be valid in law. However, since
the
appointment
of
none
of
the
petitioners-respondents
were
under
challenge before us, we did not quash
their appointments but while considering
the question of the applicability of the
Government Order dated 6.9.1994, we
have to read the aforesaid Government
Order in order to make it valid, consistent
with the aforesaid Rules. It is well settled
that
an
executive
order
which
is
inconsistent with a statutory rule is invalid
and cannot be acted upon. We, therefore,
by making the observation that the
Government
Order
dated
6.9.1994
permitting training to such Assistant
Teacher, who are working and were
appointed before the enforcement of 1975
and 1978 Rules, as the case may be, in the
institution governed by the aforesaid
Rules
respectively,
would
only
be
governed by the said Government Order
dated 6.9.1994, have tried to harmonize
the Rules as well as the said Government
Order. The aforesaid Government Order
cannot be read in a manner so as to
validate appointments made in the teeth of
the statutory rules particularly when the
Rules do not confer any power of
relaxation either on the State Government
or any other authority.

The
contention
that
the
State
Government has not raised any such plea in
earlier matters or that during the pendency of
the appeal the judgment of the Hon'ble
Single Judge has been implemented pursuant
to the order passed in the contempt
proceeding initiated by the petitionersrespondents would not render the appeal
infructuous. We are not impressed that the
said subsequent proceeding would amount to
rendering the appeal infructuous, inasmuch
as, the intra Court appeal has been preferred
against the judgment of the Hon'ble Single
Judge and the correctness thereof has to be
judged by this Court. Merely for the reason
that no interim order was passed by this
Court and, therefore, during the pendency of
the appeal, under the compulsion of the
proceeding of contempt initiated by the
petitioners-respondents, the appellants acted
to implement the judgment of the Hon'ble
Single Judge would not deprive the
appellants of their right to assail the
judgment of the Hon'ble Single Judge before
this Court in such manner and to such extent
as they find expedient. Any action of
compliance in a pending matter, neither
would
render
the
statutory
remedy
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
meaningless nor the doctrine of res-judicata
has any application in such cases. The issue
raised before this Court by the learned
Standing Counsel while arguing the appeal
was legal and it has to be decided by us in
the light of the statutory provisions and the
exposition of law applicant in this regard.

The correctness of legal principle
observed by us in the judgment could not be
disputed by the learned counsel for the
applicants. He could not say or argue that
the said Government Order if tried to be
applied to all the teachers, who have been
appointed in contravention of 1975 or 1978
Rules, as the case may be, would be in the
teeth of the relevant rules and, therefore, the
observation of this Court that in such case
the said Government Order will not apply
legally is neither erroneous in law nor
otherwise can be assailed. But he argued
that in view of the subsequent events this
Court should refrain from passing any order
which
may
affect
the
petitionersrespondents otherwise, which submission is
not acceptable since this Court is more
concern with maintaining rule of law and
not to confer whimsical benefit upon certain
individuals in breach of law. No other point
has been argued and despite having given
full opportunity to the learned counsel for
the applicants, he failed to point out any
error
crept
in
our
judgment
dated
17.12.2008. We, therefore, do not find any
reason to recall the same.

The
application is,
accordingly,
rejected."

5. In view of above decision of
Division Bench, after promulgation of
statutory
rules,
mandating
that
no
appointment shall be made if a person
does not possess requisite minimum
educational
qualification
including
training, the question of engagement of an
untrained person after promulgation of
rule and thereafter directing him to sent
for training, does not arise.

6. In view of above discussion the
relief sought cannot be granted.

7. The writ petition lacks merit.
Dismissed. Interim order, if any, stands
vacated.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2013

BEFORE
THE HON'BLE RAM SURAT RAM(MAURYA), J.

Civil Misc. Writ Petition No.14404 of 2013

Smt. Prema Devi and Anr.
..Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Shiv Naresh Singh
Sri Govind Krishna
Counsel for the Respondents:
C.S.C., Sri Praveen Kumar Giri
Shri Ashok Kumar Maurya

Constitution
of
India,
Art.-226-
Petitioner-being
landless
agricultural
labour-granted patta of surplus land-under
ceiling
proceeding-the
tenure
holderrevised their choice duly accepted by
authorities-consequently parwana issued
for delivery of possession-recall application
by petitioner already rejected as have no
locus to question the validity of ceiling
proceeding-challenge made on ground after
grant of patta-invested huge amount to
make fertile once choice acted upon and
plots in question declared surplus can not
be reverted back-held-vesting of land under
section 14 with state government-right to
choice includes right of revise choice alsopetition

dismissed.