Allahabad High Court
Masood Ahmad And 4 Ors vs State Of U.P. And 19 Ors on 28 September, 2018
Bench: Amreshwar Pratap Sahi, Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Civil Misc. Delay Condonation Application No. 2 of 2018
In
Case :- SPECIAL APPEAL DEFECTIVE No. - 708 of 2018
Appellant :- Masood Ahmad And 4 Ors
Respondent :- State Of U.P. And 19 Ors
Counsel for Appellant :- Shailendra,Awadhesh Kumar,Hansraj Singh Bist,Satish Chandra Yadav
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Bachchoo Lal,J.
This application to condone the delay has been filed praying that the sufficient cause has been shown in the affidavit in support of the application which may be considered and the delay be condoned.
Having considered the same, we are satisfied that the delay deserves to be condoned as sufficient cause has been shown.
The application is allowed. The appeal shall be treated as within time and shall be given a regular number by he office.
Order Date :- 28.9.2018
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Civil Misc. (Leave to Appeal) Application No.1 of 2018
In
Case :- SPECIAL APPEAL DEFECTIVE No. - 708 of 2018
Appellant :- Masood Ahmad And 4 Ors
Respondent :- State Of U.P. And 19 Ors
Counsel for Appellant :- Shailendra,Awadhesh Kumar,Hansraj Singh Bist,Satish Chandra Yadav
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Bachchoo Lal,J.
Heard Sri Shailendra, learned counsel for the appellant.
This application for leave to appeal has been filed contending that all the appellants are directly affected on account of the directions issued by the learned Single Judge as their right of promotion has been affected in view of the mandamus issued by this Court under the impugned judgment date 15th May, 2018.
Having heard learned counsel for the respondent-petitioners Sri Shailendra, Sri Dhananjay Awasthi, learned counsel for the National Council for Teacher Education, Sri Ashok Kumar Yadav, Awadesh Kumar, Shyam Krishan Gupta and Statish Chandra Yadav for District Inspector of Schools concerned, and the learned standing counsel for the State, we are satisfied that the impugned judgment directly impinges upon the rights of promotion of the appellants and therefore, they have a right to prefer this appeal.
Consequently, leave to appeal is granted. Application allowed.
Order Date :- 28.9.2018
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Case :- SPECIAL APPEAL DEFECTIVE No. - 708 of 2018
Appellant :- Masood Ahmad And 4 Ors
Respondent :- State Of U.P. And 19 Ors
Counsel for Appellant :- Shailendra,Awadhesh Kumar,Hansraj Singh Bist,Satish Chandra Yadav
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Bachchoo Lal,J.
This appeal questions the correctness of the impugned judgment dated 15th May, 2018 on several grounds, more particularly on the ground that the learned Single Judge while proceeding to consider the legal aspects has omitted to consider the clause specifying exemption in possession of minimum qualification for promotion in the notification dated 23th August 2010 as referred to in the notification dated 12th November, 2014 which has been made the basis of the impugned judgment. It is further submitted that the learned single judge has also omitted to consider paragraphs 66 to 70 of the full Bench Judgment in the case of Anand Kumar Yadav and others vs. Union of India and others 2015 (8) ADJ 338 which has been affirmed by the Supreme Court.
The contention therefore in short is that the learned Single Judge should have taken into consideration the aforesaid statutory provision and the law before arriving at the conclusion and issuing a mandamus.
The judgment relied on has been placed before us. On the other hand, Sri Dhananjay Awasthi, learned counsel for NCTE has invited the attention of the Court to the judgment of a learned Single Judge in a case of Subedar Yadav and 54 others in writ Petition No.16523 of 2018 that has been upheld by a Division Bench in Special Appeal No.737 of 2018 decided on 04.09.2018.
Sri Shailendra, learned Senior Counsel for the respondents-petitioners contends that as a matter of fact, the eligibility and minimum qualifications in the case of promotions which is presently involved would equally apply with the same force keeping in view the notifications that have been referred to by the learned Single Judge. He submits that the continuance of the appellants by itself will not condone or give them any subsidy in the possession of minimum qualifications which now stands standardised and prescribed under the notifications of the NCTE as indicated by the learned Single Judge in the impugned judgment. He therefore contends that there is no error much less a legal error and consequently if the appellants do not posses the said minimum eligibility criteria for promotion to the post of Head Master, they cannot as a matter of right contend that the directions issued by the learned Single Judge suffer from infirmity.
We have considered the submissions raised and we find that the appeal deserves to be allowed on the short ground of total non-consideration of the exemptions referred to for promotion regarding possession of minimum qualification under the notification dated 23rd August 2010 which finds reference in the notification dated 12th November, 2014 as well as the decision in the case of Anand Kumar Yadav. We also find that neither before the learned Single Judge nor before the Bench which affirmed the judgment in the case of Subedar Yadav (supra), the aforesaid contentions were examined nor any reference was made to paragraphs 66 to 70 of the full Bench judgment in the case of Anand Kumar Yadav and others vs. Union of India and others 2015 (8) ADJ 338 as affirmed by the Supreme Court in the case of State of U.P and another Vs. Anand Kumar Yadav and others 2017 (3) ESC 570.
We are of the opinion that the aforesaid provisions and the decision referred to above ought to have taken notice of that was imperative before arriving at the conclusion that the appellants or the candidates similarly situate would not be entitled to any of the exceptions as provided for in the notification dated 12.11.2014 read with the notification dated 23.08.2010. Consequently, on this short ground alone, the appeal deserves to be allowed.
We accordingly allow the appeal and set aside the impugned judgment dated 15.05.2018 with a request to the learned Single Judge to proceed to hear and dispose of the matter at the earliest keeping in view of the fact that the promotions are long over due in the controversy presently involved. The appeal is accordingly allowed.
The appellants are permitted to get themselves impleaded in the writ petition No.11287 of 2018 which shall stand restored to its original number and shall be heard on merits.
Sri Dhananjay Awasthi the learned counsel the for NCTE as well as the learned standing counsel are both directed to file their counter affidavits in the said writ petition within two weeks and one week for rejoinder. The matter shall be heard thereafter.
Appeal allowed.
Order Date :- 28.9.2018
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