Nov - High Court of Judicature at Allahabad

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1086 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 the judgment dated 09.09.2005 does not appear to be in conformity with law. 21. At this juncture, it would be apt to record that whenever there is a conflict between the Rules and the advertisement, it is settled law that the Rules would prevail. Reference may be had to the decision of the Supreme Court in the case of Malik Mazhar Sultan & Anr. Vs. U.P. Public Service Commission & Ors., JT 2007 (3) SC 352. 22. This is not a case where any change of qualification has been brought about after the advertisement was made. This is a clear case where the incorrect qualification was reflected in the advertisement. A qualification, which was essential under the Rules, was wrongly referred to as a preferential qualification. In our opinion, an incorrect advertisement referring to a wrong Rule would neither create or confer a right on a candidate to claim selection nor would it give rise to any legitimate expectation to a candidate, in law. The Rule on the date of advertisement, which has been pointed out on behalf of the appellants, was very much in existence and was applicable. Learned counsel for the petitioner could not successfully dispute the applicability of the Rules 1985. 23. Sri Indra Raj Singh alternatively urged that the Rules 1998 have an overriding effect. We have perused the same and the said argument is stated only to be rejected, inasmuch as the Rules 1998 are the Rules of procedure and they, in no way, take away the impact of the substantive Rules, which held the field on the date when the advertisement was issued. Even otherwise, the Rules 1998, in no way, contradict the Rules 1985 and rather they supplement the same, as would be evident from a perusal of Rules 5 and 6 of the Rules 1998. 24. We may hasten to add that the Rules have been subsequently modified in the year 2001 and even thereafter, but such modifications are not at all relevant to be discussed herein, as this matter specifically concerns the 1985 Rules that were applicable on the date of advertisement, i.e. 10.08.1998. No other Rule apart from the Rules 1985 was applicable in respect of the selections in question in the year 1998 and the learned counsel for the petitioner could not show anything to the contrary. 25. In view of the findings aforesaid, we are of the view that the learned Single Judge committed an error in allowing Writ Petition No.7660 of 1999 and permitting the petitioner to be interviewed. We, accordingly, set aside the judgment dated 09.09.2005 passed in Writ Petition No.7660 of 1999. 26. The judgment in Writ Petition No. 51691 of 2006 dated 12.01.2009 appears to have been delivered under the impression that the said judgment dated 09.09.2005 had become final and had not been challenged. We may record that the judgment dated 09.09.2005 had already been assailed through Special Appeal (Defective) No.318 of 2006, which fact appears to have escaped the notice of the learned Judge, while rendering the judgment dated 12.01.2009. In view of the fact that Writ Petition No.7660 of 1999 stands dismissed upon the judgment dated 09.09.2005 having been set aside, the very foundation of the judgment dated 12.01.2009 is taken away. Accordingly, the petitioner would, therefore, not be
3 All] Dr. R.C. Agrawal and another V. Bharat Press and others 1087 entitled to any benefit under the judgment dated 09.09.2005 and, therefore, he would not be entitled for being considered against the post of Junior Clerk in question. 27. In view of the judgment dated 09.09.2005 having been set aside by us, we have no hesitation in further expressing the same opinion in respect of the judgment dated 12.01.2009 passed in Writ Petition No.51691 of 2006, inasmuch as the said judgment proceeds on the same presumption and findings that were drawn in favour of the petitioner in Writ Petition No.7660 of 1999. Therefore, the judgment dated 12.01.2009 passed in Writ Petition No.51691 of 2006 is also set aside. 28. Accordingly, both the special appeals are allowed and the writ petitions filed by the petitioner, i.e. Writ Petition No.7660 of 1999 and Writ Petition No.51691 of 2006 are dismissed. 29. In the facts and circumstances of the case, there shall be no order as to costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 27.10.2009 BEFORE THE HON’BLE MRS. POONAM SRIVASTAVA, J. Civil Misc. Writ Petition No. 37549 of 2009 Dr. Ram Chandra Agrawal and another …Petitioners Versus Bharat Press and others …Defendant-Respondents Counsel for the Petitioner: Sri Manish Trivedi Sri A.K. Bajpai Counsel for the Respondents: Sri M.K. Gupta Sri Nikhil Kumar Sri Shikha Singh U.P. Urban Building (Control of Rent and Eviction) Act 1972 Sec-21(i) (a)- Bona-fide need-Land lord -very old man-suffering from massive heart attack-strictly restrained from using stairs-his son being Doctor-wants to open a clinic-rejection by the authorities below- held-not proper if the case remanded-very purpose of eviction frustrated. Held: Para 27 I am conscious of the fact that this Court cannot reevaluate the evidence and substitute its own findings because two views are possible. A bare perusal of the release application, objections filed by tenants and the various affidavits it is abundantly clear that the landlords (psetitioners) who are owners, require the shops for their personal need. They are the first and the rightful claimant to use their own property as they want it. This is a situation where father and son with their spouses are facing a number of problems and therefore the release of the shops cannot be refused. The very purpose of the Act stands frustrated if the two judgments of the courts are left to stand. Case law discussed AIR 1999 Supreme Court, 100, 2009(1) ARC, 829, 2008(3) ARC 532.(2000)1 SCC, 679, 2000 SCF BRC,24, (1996) 5 SCC, 353, (2002) 5 SCC, 397:2002 SCFBRC 388, AIR 1965 AP 435, (1979)1 SCC 273: 1986 SCFBRC 346, JT 2002(10) SC 203:2003 SCFBRC 137, JT 2004(Suppl.1) SC 538: 2004 SCFBRC 338, 1977 ARC 46, 2007 (68) ALR,555, 2007(68) ALR, 603, 2008(71) ALR, 857, 2009(2) ARC,715, 2003(1) ARC, 256, (1993) 3 SCC, 483, AIR 2002 Supreme Court,200, 2004 All. C.J., 304 (S.C.).
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Nov - High Court of Judicature at Allahabad

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