# Seema Srivastava v. The State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-11
- **Case number:** Special Appeal No. 497 of 2013
- **Bench:** Rakesh Tiwari, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/seema-srivastava-v-the-state-of-u-p-ors-43112
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Cancellation
of appointment-part time teacher (Art &
Music)-honorarium
payable
subject
to
verification of educational testimonialsadmittedly appellant/petitioner-not possess
TET
certificate-contention
that
no
requirement of TET-under Basic Educations
(teacher)
Service
Rules
1981-held-in
absence
of
requisite
qualification-once
participated in pursuance of advertisementjoined with open eye-can not be allowed to
question the validity of such requirement of
advertisement-Single Judge rightly refused
to interfere-appeal dismissed.
Held: Para-12
We have considered the rival contentions
of learned counsel for the parties and in
our opinion, the appellant-petitioner on
one hand, cannot take advantage of
advertisement for appointment and on
the
other
hand,
challenge
the
advertisement. After verification of her
educational testimonials she has been
found to be unqualified for the post.
Hence, she cannot now turn around now
and challenge the advertisement as well
as the order of termination passed on
the ground that she was ineligible for
appointment for the post in question. It
is always open to the college to invite
applications from the candidates who are
eligible and having better qualifications
than
the
minimum
qualifications
prescribed in the statute itself. The
petitioner
was
found
ineligible
for
appointment on the post in question,
hence her appointment has rightly been
cancelled by the authority.
3 All]. Seema Srivastava Vs. The State of U.P. & Ors.
1245

## Text

1244
 INDIAN LAW REPORTS ALLAHABAD SERIES
suit property, the appellants/plaintiffs had to
necessarily claim the consequential relief of
possession of the property . Such a plea was
taken by the respondents/defendants while
filing
the
written
statement.
The
appellants/plaintiffs did not make any
attempt to amend the plaint at this stage, or
even at a later stage. The declaration sought
by the appellants/plaintiffs was not in the
nature of a relief. A worshiper may seek that
a decree between the two parties is not
binding on the deity, as mere declaration can
protect the interest of the deity. The relief
sought therein was for the benefit of the
appellants/plaintiffs themselves.
As a consequence, the appeals lack
merit and, are accordingly dismissed.
There is no order as to costs."
16. In view of the law laid down by
the Apex Court, we are of the view that
the Trial court has not committed any
error in rejecting the suit as barred by
Section 34 of the Specific Relief Act.
17. The decisions cited by the learned
counsel
for
the
appellants,
referred
hereinabove, are not applicable to the present
case and are of no help to the appellants. The
appellants are not remedy-less. It is open to
them to file a fresh suit, as provided under
Order VII, Rule 11 of the CPC.
18. In view of what has been
discussed above, in the result, the Appeal,
being devoid of merits, fails and is
dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE ASHOK PAL SINGH, J.
Special Appeal No. 497 of 2013
Seema Srivastava
...Appellant
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri Prabhakar Awasthi
Counsel for the Respondents:
C.S.C. Sri P.D. Tripathi
Constitution of India, Art.-226-Cancellation
of appointment-part time teacher (Art &
Music)-honorarium
payable
subject
to
verification of educational testimonialsadmittedly appellant/petitioner-not possess
TET
certificate-contention
that
no
requirement of TET-under Basic Educations
(teacher)
Service
Rules
1981-held-in
absence
of
requisite
qualification-once
participated in pursuance of advertisementjoined with open eye-can not be allowed to
question the validity of such requirement of
advertisement-Single Judge rightly refused
to interfere-appeal dismissed.
Held: Para-12
We have considered the rival contentions
of learned counsel for the parties and in
our opinion, the appellant-petitioner on
one hand, cannot take advantage of
advertisement for appointment and on
the
other
hand,
challenge
the
advertisement. After verification of her
educational testimonials she has been
found to be unqualified for the post.
Hence, she cannot now turn around now
and challenge the advertisement as well
as the order of termination passed on
the ground that she was ineligible for
appointment for the post in question. It
is always open to the college to invite
applications from the candidates who are
eligible and having better qualifications
than
the
minimum
qualifications
prescribed in the statute itself. The
petitioner
was
found
ineligible
for
appointment on the post in question,
hence her appointment has rightly been
cancelled by the authority.
3 All]. Seema Srivastava Vs. The State of U.P. & Ors.
1245
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard learned counsel for the
parties and perused the record.
2. This intra court appeal has been
preferred by the appellant challenging the
validity and correctness of the judgment
and order dated 12.9.2012 passed by the
Writ Court in Civil Misc. Writ Petition
No. 46336 of 2012, Seema Srivastava
versus State of U.P. and others, whereby
the aforesaid writ petition had been
dismissed.
3. Relevant facts giving rise to the
instant appeal are that the appellant herein
applied
for
consideration
of
her
candidature for appointment as part time
teacher (Art and Music). In terms of the
advertisement,
the
incumbent
was
required to be trained graduate. After
selection proceedings, the District Basic
Education Officer with concurrence of the
District
Magistrate
issued
letter
of
appointment to the petitioner-appellant.
As
per
terms
and
conditions
of
appointment letter, her appointment was
temporary and in case her work and
conduct was not found satisfactory, her
services were liable to be terminated
without any notice. It was also provided
that honorarium was payable to her only
after verification of her educational
testimonials.
4. It appears that on verification of
the testimonials, it was found that the
petitioner-appellant
was not at all a
trained graduate, hence a show cause
notice was given to her. She preferred to
challenge the same in Civil Misc. Writ
Petition No. 22487 of 2012, which was
disposed
of
directing
the
authority
concerned to take a decision in the matter.
Subsequently,
her
appointment
was
thereafter cancelled by order dated
7.6.2012. The aforesaid writ petition no.
46366 of 2012 was preferred by her
challenging the order dated 7.6.2012,
which was dismissed by the Writ Court
vide its impugned judgment and order
dated 12.9.2012.
5. For ready reference the relevant
extract of the impugned judgment and
order dated 12.9.2012 reads thus:-
"Petitioner has rushed to this Court
with request to quash the order dated
07.06.2012,
wherein
District
Basic
Education
Officer,
Kaushambi
has
proceeded to pass order mentioning
therein that the petitioner had been
selected as part time teacher (Art and
Music) and when verification proceedings
have been undertaken, then it has been
reflected that the petitioner was not at all
eligible to be selected, as minimum
eligibility criteria is not being fulfilled by
her.
On show cause notice being issued
on 04.04.2012, petitioner filed writ
petition No.22487 of 2012, wherein this
Court asked the authority concerned to
take decision in the matter. Thereafter
decision has been taken cancelling her
candidature.
Sri Ranjeet Asthana, learned counsel
for
the
petitioner,
contended
with
vehemence that in the present case
appointment in question had been made
with the concurrence of the District
Magistrate, as such the District Basic
Education Officer has no authority to
cancel the appointment so made, and
coupled with this petitioner fulfills the
eligibility criteria, as such action taken is
bad.
1246
 INDIAN LAW REPORTS ALLAHABAD SERIES
Countering the said submissions,
learned standing counsel as well as Sri
Jayram Pandey, Advocate, on the other
hand, contended that the petitioner lacks
minimum eligibility criteria, as such the
District Basic Education Officer has
rightly cancelled her candidature.
After respective arguments have been
advanced, factual situation which has so
emerged in the present case, is that the
petitioner had applied for consideration
of her candidature for appointment as
part time teacher (Art & Music). As per
advertisement, the incumbent was required
to
be
trained
graduate.
Selection
proceedings were finalized, whereupon with
due concurrence of the District Magistrate,
the
District
Basic
Education
Officer
proceeded to issue appointment letter to the
petitioner. As per terms and conditions of the
appointment letter, the appointment in
question was temporary and in case work
and conduct of the incumbent was not found
satisfactory,
same
was
liable
to
be
terminated
without
any
notice,
and
honourarium was to be ensured only
verification of educational testimonials. On
verification being conducted, it was found
that the petitioner was not at all trained
graduate, and in view of this show cause
notice was given to her and thereafter her
candidature has been cancelled.
The argument, that the District Basic
Education Officer has no authority to
cancel the appointment,is misconceived,
for the simple reason that once the
District Basic Education Officer had
proceeded to issue appointment letter in
favour of the petitioner, then the District
Basic
Education
Officer
has
every
authority to vary, rescind or modify the
aforesaid appointment letter, specially
when honourarium has to be ensured to
the incumbent only after verification of
the
educational
testimonials.
In
verification proceeding the record of the
petitioner has been examined and it has
been found that the petitioner has got no
training qualification to her credit.
Petitioner is contending before this
Court that apart from her graduate degree,
she has got to her credit certificate in
Drawing Grade Examination issued by
Directorate of Art & Chairman, Art
Examination Committee, Maharashtra State
Mumbai. Said certificate, by no stretch of
imagination, can be equated with training
qualification.
Once such is the factual situation
that
the
petitioner
lacks
minimum
eligibility criteria, then the decision taken
cannot be faulted. In view of the above
facts, writ petition is dismissed."
6. The impugned judgment and order
dated 12.9.2012 passed by the Writ Court is
challenged on the ground that the fact
escaped from the notice of the Court that
under the U.P. Basic Education (Teachers)
Service Rules, 1981 the subject of Art has
not been specified, hence qualification of
teacher (Art and Music) has to be the
qualification as provided under the regulation
framed
under
the
U.P.
Intermediate
Education Act, 1921; that the Writ Court
returned no finding regarding information
which was sought by the appellant from the
U.P. Secondary Education Service Selection
Board for qualification of Assistant Teacher
in the subject of Art and Music; that the Writ
Court has failed to take into consideration the
generality of acquisition of trained graduate
as a qualification sine-qua-non for the
purpose of recruitment of Assistant Teacher
(Art & Music) as mentioned in the
3 All]. Seema Srivastava Vs. The State of U.P. & Ors.
1247
advertisement for the purpose of recruitment
to be an essential qualification and that said
qualification was not either in consonance
with the provisions of U.P. Basic Education
(Teachers) Service Rules, 1981 or the
regulations
framed
under
the
U.P.
Intermediate Education Act, 1921.
7. Learned counsel for the appellant
submits that the Writ Court has failed to
take into consideration that as the
petitioner had passed Intermediate Grade
Drawing Examination (I.G.D.), there was no
requirement of an incumbent to be a trained
teacher for the purpose of appointment as
Assistant Teacher in the Art and Music
which is recognized only at High School
level for appointment as Assistant Teacher
where Basic Education in subject of Art or
any other subject is not recognized. It is
stated that this very important aspect of the
matter has been overlooked by the Writ
Court while passing the impugned order
dated 12.8.2012.
8. Lastly, it is submitted that in any
view of the matter the impugned order
dated 12.9.2012 of the Writ Court
affirming the order dated 7.6.2012 passed
by the District Basic Education Officer is
unsustainable, unrealistic and unreasoned
in the eye of law and as such is liable to
be quashed.
9. Sri P.D. Tripathi, learned counsel for
the private respondents and the learned
Standing counsel for respondent nos. 1 to 4
have supported the findings recorded by the
Writ Court in the impugned judgment and
submits that no illegality or infirmity in the
order impugned has been shown by the
petitioner, hence no interference is required
by this Court.
10. After hearing learned counsel for
the parties and on perusal of the record it
appears that the appointment of the
appellant was made pursuant to an
advertisement as part time teacher in the
college in question. In the writ petition
she had prayed for the following reliefs.
I. "Issue a writ, order or direction in
the nature of certiorari to quash the
impugned order dated 7.6.2012 issued by
the respondent no.5, which is contained
as Annexure-7 to this writ petition ;
II. Issue a writ, order or direction in
the nature of certiorari to quash the
column 3 of the above said impugned
advertisement dated 02.11.2011 published
in daily newspaper Dainik Jagran which
is contained as Annexure-1 to this writ
petition
in
which
the
educational
qualification
mentioned
Trained
Graduate against the column 2 with
respect to petitioner only '
III. Issue a writ, order or direction in
the nature of mandamus directing the
respondent authorities to permit the
petitioner function on the post of part time
Art Teacher in Kastoorba Gandhi Balika
Vidyalya, Nevada, Kaushambi, during the
pendency of the writ petition ;
IV. Issue a writ, order or direction in
the nature of mandamus directing the
respondent authorities to release the
arrears of the salary and salary of the
petitioner time to time which falls due
continuously ;
V. Issue any other suitable order or
direction which this Court may deem fit
and proper in the circumstances of the
case;
VI. To award the cost of writ petition
in favour of the petitioner."
11.
It appears that on verification of
educational testimonials of the appellant it
1248
 INDIAN LAW REPORTS ALLAHABAD SERIES
was found that she was not having requisite
qualification for the post in question as
advertised. However, she accepted the
appointment with open eyes without even a
murmur and rushed to this Court and
challenged the advertisement as well as the
order dated 7.6.2012 by which her services
were
terminated,
praying
that
the
respondents may be directed to permit her to
function as a part time teacher in Kastoorba
Gandhi
Balika
Vidyalya,
Nevada,
Kaushambi and make payment of her salary.
12. We have considered the rival
contentions of learned counsel for the
parties and in our opinion, the appellantpetitioner on one hand, cannot take
advantage of advertisement for appointment
and on the other hand, challenge the
advertisement. After verification of her
educational testimonials she has been found
to be unqualified for the post. Hence, she
cannot now turn around now and challenge
the advertisement as well as the order of
termination passed on the ground that she
was ineligible for appointment for the post in
question. It is always open to the college to
invite applications from the candidates who
are eligible and having better qualifications
than the minimum qualifications prescribed
in the statute itself. The petitioner was found
ineligible for appointment on the post in
question, hence her appointment has rightly
been cancelled by the authority.
13. We, therefore, do not find any
illegality or infirmity in the impugned
judgment and order dated 12.9.2012 of
the Writ Court dismissing the writ petition
preferred by the appellant-petitioner and
affirming the order dated 7.6.2012 passed
by the District Basic Education Officer,
Kaushambi.
14. For all the reasons stated above,
the appeal is dismissed. Parties to bear
their own costs.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2014
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Civil Revision No. 602 of 2010
Sri Vikas Gupta
...Revisionist
Versus
M/s Shri Ram Mahadev Prasad & Anr.
...Opp. Parties
Counsel for the Revisionist:
Sri Ramendra Asthana, Sri Vijay Kumar
Ojha, Sri M.L. Maurya
Counsel for the Opp. Parties:
Sri M.K. Gupta, Sri Arun Kumar Shukla, Sri
Abhinav Shukla
C.P.C. Order XX Rule 4 & 5-Framing of
issues-proceeding before judge small
causes court, being summery in nature
with limited pecuniary jurisdiction-sole
purpose of expeditions disposal-framing
issues-held-not necessary like regular
civil suits.
Held: Para-12 & 13
12. The distinction between sub rule (1)
and (2) of Rule 4 of Order XX of the CPC
by itself is sufficient to indicate that the
Small
Causes
Court
is
a
summary
proceedings and detailed reasons are not
required to be given in judgements. The
point for determination does not need
for framing an issue and there is no need
for the procedure applicable for the
regular civil suits. In case the detail
procedure of regular suit is also followed
in the matter of the Small Causes Court,
the very object of the Act No. 9 of 1887
shall
be
frustrated.
Therefore,
the
submission of the learned Counsel for
the revisionist does not stand to reasons.