By the Court.—This appeal questions the legality of the judgment and order of the learned Single Judge dated 12.8.2009 whereby the learned Single Judge has allowed the writ petition and held that the appellant No. 1-respondent Akhilesh Kumar Pandey, did not possess the minimum qualification for appointment as a Head Master of a Junior High School, as per provisions of U.P. Basic Education Act, 1972 read with the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the Rules). Accordingly, his appointment has been quashed.

2. The issues raised in this special appeal for all intent and purposes, have been decided against the appellant by the two Division Bench decisions of this Court in the case of Smt. Madhu Bala Upadhyaya v. State of U.P. and others being Special Appeal No. 395 of 2007 decided on 19.1.2009 and in the case of Committee of Management v. State of U.P. and others, 2009(1) ADJ 331. However, since the same legal submissions have again been advanced before us, therefore, we are called upon to answer the dispute raised on the facts of the present case as well.

3. The dispute is with regard to the selection and appointment of the appellant No. 1 Akhilesh Kumar Pandey as Head Master in Shitla Devi Balika Vidyalaya, Junior High School Darangar (Kara) Kaushambi. There is no dispute that the said institution is governed by the 1972 Act read with 1978 Rules referred to herein above. The post of Head Master of the Institution fell vacant on account of the retirement of the earlier incumbent on 30.6.95. The vacancy remained unfilled for a fairly long time with no permanent incumbent having been selected. Ultimately the Basic Education Officer, Kaushambi who is the authority competent under the aforesaid Rules, extended permission to the committee of management appellant No. 2 to proceed to fill up the said vacancy through direct recruitment. It is alleged that the vacancy was advertised and a selection was held by a selection committee duly constituted under the provisions of the said Rules and the recommendations of the selection committee were ultimately approved by the Basic Education Officer dated 15.9.2005 whereby the appellant No. 1 Akhilesh Kumar Pandey came to be appointed as Head Master of the Institution.

4. The respondent writ petitioner Smt. Gyanwati Devi claiming herself to be the senior most teacher of the institution and holding charge of Head Mistress contends that the then Manager of the Institution Devendra Kumar Shukla, who has also contested the matter before the learned Single Judge, appointed his own sister Smt. Urmila Devi on the said post inspite of the fact that it was the respondent writ petitioner who was entitled to hold charge. The said claim was decided by this Court by a Division Bench in special appeal and the Basic Education Officer ultimately attested the signature of the respondent petitioner as the Head Mistress on 6.11.2003. On 7.11.2005 the said charge of the Head Mistress was forcibly taken from the writ petitioner and handed over to appellant No. 1 Akhilesh Kumar Pandey who claimed regular appointment on the post in question. Aggrieved the respondent petitioner preferred the petition giving rise to this appeal, challenging the order of the Basic Education Officer dated 15.9.2005 whereby the appellant No.1 Akhilesh Kumar Pandey was approved as the Head of the Institution as well as the consequential order of appointment issued by the management on 19.9.2005.

5. The stand taken in the writ petition was that the petitioner had been functioning as the Head of the Institution and the respondent appellant had been appointed who did not even possess the minimum qualification as per rules. The matter was contested and ultimately the learned Single Judge after exchange of affidavits allowed the writ petition by the impugned judgment dated 12.8.2009.

6. We have heard Sri Ashok Khare learned senior counse