DISTRICT BASIC EDUCATION OFFICER versus DHANANJAI KUMAR SHUKLA AND ANR.

Citation: [2007] 13 S.C.R. 972 · Decided: 07-12-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
DISTRICT BASIC EDUCATION OFFICER 
v. 
DHANANJAI KUMAR SHUKLA AND ANR. 
DECEMBER 7, 2007 
[S.B. SINHA AND G.S. SINGHVI, JJ.] 
SERVi'CE LAW: 
UITAR. PRADESH RECOGNISED BASIC SCHOOLS (JUNIOR 
HIGH SCHOOLS) (RECRUITMENT AND CONDITIONS OF 
SERVICE OF TEACHERS) RULES, 1978: 
r. 6-Appointment of Headmaster-Disqualification-Being son 
of Manager of the School-HELD: Manager being on leave for a 
D temporary period did not cease to be Manager of the School- He went 
on leave only to defeat the statutory provision-Such an act amounts 
fraud on the administration-Whether in law or in equity it would be 
wholly improper to continue the appointment-Equity. 
E 
CODEOFCIVILPROCEDURE, 1908: 
Or.8 r. 5-Non-filing of written statement-Effect of-HELD: 
Rules of pleading contained in the Code do not cover question of law 
-Under Or. 8 r. 5, despite non-filing of the written statement, a court 
of law may call upon the plaintiff to prove his case-No relief contrary 
F to law can be granted by High Court in exercise of its jurisdiction 
under Article 226 of the Constitution-Uttar Pradesh Recognised Basic 
Schools (Junior High Schools) (Recruitment and Conditions a/Service 
a/Teachers) Rules, 1978-r.6-Constitution of India-Article 226-
Evidence Ac1, 1872-s.56. 
G 
H 
In response to an advertisement issued by a recognized School 
for the post of its Headmaster, respondent no. 1 submitted an 
application. Recruitment to the post of Headmaster was governed 
by the Uttar Pradesh Recognised Basic Schools (Junior High 
972 
DISTRICTBASICEDUCATIONOFFICERSv. DHANANJAI 973 
KUMAR SHUKLA 
Schools)(Recruitment and Conditions of Service of Teachers) Rules, A 
1978, Rule 6 whereof provided, inter alia, that no person related to 
any member of the Management of a recognized school would be 
appointed as Headmaster or Assistant Teacher thereof. Father of 
respondent no.1, who was the Manager of the School, after seeking 
leave of the President of the Managing Committee on medical B 
ground, handed over charge to the Deputy Manager stating that he ' 
would resume the charge and responsibility of the post of Manager 
approximately after two months. Meanwhile respondent no. 1 was 
appointed on ad hoc basis. He filed a writ petition in the High Court 
seeking relief of continuation of his services and claiming his salary. C 
Since the appellant-authorities did not file any cQuntcr affidavit in 
the writ petition, it was ultimately allowed and the special appeal filed 
by the authorities was dismissed by the Division Bench of the High 
Court holding that as the appellant did not file any counter affidavit 
in the writ petition, the principles of Order 8, Ruic 5 CPC would apply D 
and, thus, all the statements made in the writ petition would be 
deemed to have been admitted. Aggrieved, the Education 
Department filed the instant appeal. 
Allowing the appeal, the Court 
HELD: 1.1. Principles underlying Order 8 rule 5 of the Code 
of Civil Procedure, 1908 (assuming that the provisions of the CPC 
E 
arc applicable in terms of the High Court rules framed by the High 
Court of Allahabad despite section 141 of the CPC) make it clear 
that not only despite non-filing of the written statement a Court of F 
law may call upon the plaintiff to prove his case but also there cannot 
be any doubt whatsoever, that no relief contrary to law can be 
granted by the High Court in exercise ofits jurisdiction under Article 
226 of the Constitution oflndia. [Para 12] [977-C-D] 
1.2. Respondent's father was on leave for a temporary period. G 
He thereby did not cease to be the Manager of the school. It is 
apparent that he went on leave only to defeat the statutory provisions. 
Such an act amounts to fraud on the administration. The appointment 
of respondent no. 1 being contrary to the mandatory provisions as 
contained in rule 6 of the Rules was a nullity and, therefore, could H 
974 SUPREME COURT REPORTS 
[2007] 13 (Addl.) S.C.R. 
A not have been directed to be legalized only because the appellants 
did not file their counter affidavit. The authorities did not admit 
respondent's claim. [Para 13and14] [977-E-F-H; 978-A] 
1.3. The question involved in the writ petition was a legal 
question. Rules of pleading contained in the Code of Civil Procedure 
B do not cover question of law. In the instant case, the basic 
foundational fact stands admitted. If a fact stands admitted, the 
same in terms of section 56 of the Evidence Act need not be proved. 
Only because such a quest

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