JUDGMENT:

S.B. Sinha, J.

1. Leave granted.

2. Respondent No.1 was appointed as a Headmaster in a recognised school. Recruitment to the post of Headmaster concededly is governed by the statutory rules framed under Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978. Rule 6 of the said Rules reads:

6. Disqualification.- (1) No person who is related to any member of the Management shall be appointed as Headmaster or Assistant Teacher of a recognised school.

(2) For the purposes of this rule, a person shall be deemed to be related if he is related to such member in any one of the following ways, namely-

(i) Father or mother;

(ii) Grandfather, Grandmother;

(iii) Father-in-law, mother-in-law;

(iv) Uncle, aunt, maternal uncle, maternal aunt;

(v) Son, daughter, son-in-law, daughter-in-law;

(vi) Brother, sister;

(vii) Grandson, grand-daughter;

(viii) Husband, wife;

(ix) Nephew, niece;

(x) Cousin;

(xi) Wife's brother, or wife's sister, wife's brother's wife, sister's husband;

(xii) Brother's or cousin's wife.

3. The post of Headmaster inter alia fell vacant in Janta Adarsh Madhyamic Vidyalaya, Newada Khurd, Kalan, Etawa. An advertisement therefor was issued by the manager of the said school. In purported response to the said advertisement the respondent No.1 filed an application before the manager of the school praying for his appointment. The manager by a letter dated 18.8.1998 asked for approval thereof from the District Education Officer, Itawah.

4. It appears the father of respondent No.1, who was the manager of the said school on the relevant date, sought for leave from the President of the Managing Committee of the said school stating: Respectfully it is submitted that there appears to be unavoidable pain in the knee of the applicant due to which he is facing a lot of difficulty in moving.

Unless applicant completely becomes healthy from the physical point of vie till then Shri Om Narain Tiwari Deputy manager will take the charge and responsibility of the post of Manger. After getting alright, applicant will again assume the charge of the post of the Manager and will do the work approximately two months time can be taken for the applicant becoming healthy.

5. He handed over charge to one Om Narain Tripathi on 21st August, 1998. Respondent No.1 thereafter was recommended for appointment by the Selection Committee and was appointed in terms thereof on adhoc basis.

6. Inter alia on the premise that despite such appointment Respondent No.1 was not paid his salary, he filed a writ petition before the Allahabad High Court which was marked as Writ Petition NO.24957/1999. By an order dated 16.6.1999 the High Court directed the appellant to continue the respondent No.1 on the said post as also pay his due salary.

7. A special appeal was filed thereagainst and the said interim order was vacated.

8. For the reasons best known to the authorities of the appellant, however, no counter affidavit was filed in the writ petition. The said writ petition was, therefore, allowed. Thereafter, an application for recalling of the said order was filed which was also dismissed. A special appeal thereagainst has been dismissed by a Division Bench of the High Court opining that as the appellant did not file any counter affidavit, the principles of Order 8 Rule 5 of the CPC would apply and thus all the statements made in the writ petition would be deemed to have been admitted.

9. Mr. Shrish Misra, learned counsel appearing on behalf of the appellants would submit that in view of the fact that the respondent was appointed contrary to the provisions of the Rules, the same being a nullity, the impugned judgments are wholly unsustainable.

10. Dr. J.N. Dubey, learned senior counsel appearing on behalf of the respondents, on t