D.D.SETH, J. - (1.) THIS is a petition under Article 226 of the Constitution. The opposite party No 2 in the petition was the Administrator, Municipal Board. By an order passed on an application made by the petitioner the name of the Administrator was removed from the array of opposite parties and in his place Nagar Mahapalika, Allahabad through the Mukhya Nagar Adhikari Allahabad was substituted.
(2.) THE facts, in brief, according to the petition, are that on 2nd May 1956 an advertisement was published in the local papers of Allahabad inviting applications from trained M. As. or M. Ses. for the post of Superintendent of Education in the then Municipal Board of Allahabad. In response to the advertisement ninety applications were received and 38 persons were called for interview who were all post graduates and either held the degree of L. T. or B. T. or held Acting Teachers Certificate. Out of the 38 persons called for interview only 21 persons appeared before the Interview Board and one of those 21 persons was Sri Ishwar Saran opposite party No. 3 to the petition. The Interview Board decided to appoint. Sri Ishwar Saran in preference to other candidates and the appointment was duty made on 10th October 1956. It was confirmed by the State Government on 5th December 1956. The District Inspector of Schools also gave his approval to the proposal of the Interview Board to appoint Sri Ishwar Saran as Superintendent of Education. The petitioner had also applied for the appointment to that office hut was not selected by the Interview Board. The petitioner addressed a representation on 8th October 1957 to the Secretary to Government U. P., Education Department, Lucknow and drew the attention of the State Government to the illegality committed in appointing Sri Ishwar Saran as Superintendent of Education in the Municipal Board, Allahabad. According to the petitioner Sri Ishwar Saran was not qualified for being appointed to that post, it appears that the Director of Education was not satisfied with the appointment and wrote to the State Government that Sri Zshwar Saran did not possess the requisite statutory qualifications and requested it to cancel its approval. The State Government, however, by a letter dated 31st March 1958 informed the Administrator of the Municipal Board that the petitioner's representation had been rejected by it. This order further directed that the persons holding Acting teachers Certificate would be deemed to be trained persons Cor the purposes of appointment as Superintendent of Education in the Municipalities in Uttar Pradesh. On a further representation to the State Government by the Director of Education the State Governmentdirected that its order dated 31st March 1958 should not be deemed to be an order having general application but one which would apply only to Sri Ishwar Saran as a special case. The joint Director of Education, therefore, by a letter dated 7th August 1958 informed the petitioner that his representation to the State Government dated 8th October 1957 had been rejected. The petitioner thereupon came to this Court under Article 226 of the Constitution and prayed that a writ in the nature of quo warranto may be issued directing Sri Ishwar Saran opposite party No. 3 to the petition, to show to the satisfaction of this Court the lawful authority by which he claims to hold the office of the Superintendent of Education in the Municipal Board of Allahabad. It was further prayed that a writ of mandamus may be issued to the State Government commanding it to withdraw its approval accorded to the appointment of Sri Ishwar Saran as Superintendent of Education and that the opposite party No. 2 be commanded to treat the office of the Superintendent of Education as vacant and not filled up in accordance with law and to take suitable steps to fill up the same. A counter affidavit has been filed on behalf of Sri Ishwar Saran and the petitioner has filed a rejoinder affidavit.
(3.) I have heard Sri S. N. Kacker the learned counsel for the petitioner, Sri S. C. Khare appearing on behalf of Sri Ishwar Saran and Sri Yashodanandan appearing on behalf of the Nagar Mahapalika, Allahabad. Nobody has appeared before me on behalf of the State. Sri S. C. Khare has raised two preliminary objections. His first objection is that the petitioner has no legal right to file the petition as he was not qualified for the appointment to the post of Superintendent of Education as at the time of the interview in 1956 he was below 35 years of age and hence he was not an aggrieved party on that date. The second objection is that the petition is much too belated as the petition was filed in this Court on 17th September 1958, i.e. after about two years of the appointment of Sri Ishwar Saran. I find no force in these objections.;