JUDGMENT : Sangeeta Chandra, J. Heard learned counsel for the petitioner, Shri Arvind Srivastava and Shri R.P. Singh for the respondents No. 2 and 4. 2. It has been submitted by the petitioner that he was appointed on 15.12.1999 on the post of Assistant Teacher in Primary School, Gopalpur, Disrirct Mainpuri by the District Basic Education Officer and was also confirmed on this post in December, 2000. In year 2003 the posts of Assistant Teacher (Science) in Junior High School of District Mainpuri were created and the said posts were filled up by promotion. On 30.10.2003 the District Promotion Committee issued an Order No. 234 dated 30.10.2003 promoting the petitioner on the post of Assistant Teacher (Science) in Junior High School and in pursuance of the said promotion order the petitioner joined in Purva Madhyamik Vidyalaya Garhia, Block Bewar, District Mainpuri on 06.11.2003 and has been working on the said post since then. 3. It has been submitted that the petitioner was legally entitled for salary of the promotional post i.e. Rs. 5500 - 9000/-. But he was not getting the said salary therefore he filed a representation on 25.05.2004 before the District Basic Education Officer for being granted promotional Pay Scale to him. Since his request went unheeded, he filed a Civil Misc. Writ Petition No. 30976 of 2004: Ramnath Vs. State of U.P. and others, which was disposed off by this Court on 06.08.2004 with a direction to the respondent No. 4 to look into the grievance of the petitioner and pass an order thereon in accordance with law. 4. The petitioner in pursuance of the order dated 06.08.2004 again filed a fresh representation on 26.10.2004. In the meantime, the petitioner as per directions of the authorities completed his training of Special BTC from District Institute of Education and Training, Bhogaon, District Mainpuri in Math subject and was issued a training certificate also in December, 2004. On 09.01.2005 the District Basic Education Officer without giving any opportunity of hearing to the petitioner passed an order of reversion and directed the petitioner to join his duties on the post of Assistant Teacher in the Primary School in which he was initially appointed at Gopalpur. 5. Aggrieved by the said order this writ petition has been filed challenging not only the order dated 09.01.2005 but also the order dated 27.12.2003 mentioned therein by which allegedly his promotion order was cancelled. 5. Aggrieved by the said order this writ petition has been filed challenging not only the order dated 09.01.2005 but also the order dated 27.12.2003 mentioned therein by which allegedly his promotion order was cancelled. It has been submitted by the learned counsel for petitioner that the order impugned has been passed without giving any opportunity of hearing to the petitioner. It has also been submitted that a District Promotion Committee was constituted before the promotion order dated 30.10.2003 was issued and till date the order dated 27.12.2003 which allegedly cancelled his promotion has not been served on him. 6. In the counter affidavit filed by the respondents No. 2 and 4 a mention has been made that the petitioner being appointed only on 15.12.1999 was not eligible for promotion as per the U.P. Basic Education (Teachers) Service Rules, 1981 and no District Selection Committee was constituted and no seniority list for considering all eligible candidates for promotion from Primary School to the Junior High School was ever prepared. The order No. 234/2003-4 dated 30.10.2003 passed in favour of 36 teachers by the then District Basic Education Officer was completely without jurisdiction and illegal and was cancelled by the Secretary, Basic Shiksha Parishad by the order dated 27.12.2003. Since the promotion of petitioner was cancelled, he was not entitled to promotional Pay Scale. 7. In the counter affidavit it has also been alleged that the order dated 30.10.2003 which was allegedly passed by the then Basic Education Officer, Tilak Singh Rajpoot, as available in the office, was different from the order dated 30.10.2003 filed in the writ petition, and the order filed by the petitioner appeared to be forged and fabricated. A copy of the promotion order dated 30.10.2003 containing the name of 36 teachers has been filed as Annexure - 1 to the counter affidavit. 8. It has also been submitted that the order dated 27.12.2003 passed by the Secretary, Basic Shiksha Parishad, Allahabad was also published in the daily newspapers namely Dainik Jagaran and Amar Ujala on 7th and 8th February, 2003 and is in the knowledge of the petitioner and all such teachers illegally promoted. 8. It has also been submitted that the order dated 27.12.2003 passed by the Secretary, Basic Shiksha Parishad, Allahabad was also published in the daily newspapers namely Dainik Jagaran and Amar Ujala on 7th and 8th February, 2003 and is in the knowledge of the petitioner and all such teachers illegally promoted. It has also been submitted in the counter affidavit in paragraph - 22 that in pursuance of the order dated 27.12.2003 the Headmaster of Purva Madhyamik Vidyalaya, Gathia, Bebar has already relieved the petitioner and a copy of the relieving order has been filed as Annexure - 2 to the counter affidavit and it has been submitted that the petitioner despite such relieving order having been passed by the Headmaster of Purva Madhyamik Vidyalaya, Gathia, Bebar, has failed to join his duty in the Primary School at Gopalpur. 9. In the rejoinder affidavit filed by the petitioner it has been submitted that the petitioner was promoted after the decision of the District Promotion Committee as is evident from a perusal of the promotion order dated 30.10.2003 which records this fact. It has also been submitted that the petitioner continues to teach at Purva Madhyamik Vidyalaya, Gathia, Bebar and has not been relieved till date. It has also been submitted that petitioner's appointment order was individually issued as his name was left out mistakenly from the list as mentioned in the earlier order dated 30.10.2003 filed as Annexure - 1 to the counter affidavit. 10. It has been submitted that publication of the order of the Secretary, Basic Shiksha Parishad in the newspapers does not mean that the order of cancellation was ever served on the petitioner nor does it mean that any opportunity of hearing was given to the petitioner before passing of the cancellation order. In the rejoinder affidavit a further mention has been made that the juniors have been promoted by the order dated 29.10.2007 without considering the case of the petitioner. 11. In the rejoinder affidavit a further mention has been made that the juniors have been promoted by the order dated 29.10.2007 without considering the case of the petitioner. 11. In April, 2009 an application for stay of impugned order was filed by the petitioner wherein it was mentioned that on 06.04.2009 the District Basic Education Officer has issued notice to the petitioner to submit an explanation within three days as to why he has not complied with the order passed by the Secretary, Basic Education Board on 27.12.2003 and joined at his original place of posting and is still continuing in the Junior High School at Gathia, Bebar. The petitioner has submitted a reply on 11.04.2009 to the said show cause notice that he has never been relieved by the Headmaster of Purva Madhyamik Vidyalaya, Gathia. 12. A second application for interim order was also filed by the petitioner on 19.04.2009 which brought on record the order dated 16.04.2009 passed by the Assistant Basic Education Officer relieving the petitioner and directing him to join immediately at his original place of posting at the Primary School. Gathia Bebar. On the said application being moved for interim relief, this Court considered the matter and passed a detailed interim order on 18.05.2009 wherein the operation of the order dated 16.04.2009 passed by the Assistant Basic Education Officer, Bebar, District Mainpuri was stayed till further orders of the Court. The order dated 16.04.2009 had directed the petitioner to join at his original place of posting in the Primary School. In pursuance of the interim order passed by this Court on 18.05.2009 the petitioner still continues at Purva Madhyamik Vidyalaya, Gathia, Bebar, District Mainpuri. 13. The District Basic Education Officer, Mainpuri filed a supplementary affidavit on 29.11.2009 in which he has stated that certain wrong averments have been made in the initial counter affidavit filed on 23.04.2005 and therefore, need arose to file the affidavit as aforesaid. In this affidavit a mention has been made for the first time of an order dated 13.11.2003 passed by the District Basic Education Officer, Mainpuri canceling the promotion order dated 30.10.2003. A copy of the order dated 13.11.2003 and also a copy of the order dated 27.12.2003 have been filed as Annexure - 1 and 2 to this affidavit. It has been submitted that the promotion order No. 234/2003-4 dated 30.10.2003 was cancelled on 13.11.2003. A copy of the order dated 13.11.2003 and also a copy of the order dated 27.12.2003 have been filed as Annexure - 1 and 2 to this affidavit. It has been submitted that the promotion order No. 234/2003-4 dated 30.10.2003 was cancelled on 13.11.2003. Whereas, the order No. 197/2003-4 was cancelled on 27.12.2003. 14. A supplementary counter affidavit has also been filed wherein the respondents No. 2 and 4 have explained that the promotion of the petitioner was made by order No. 234/2003-4 dated 30.10.2003 along with 35 other teachers and it was cancelled by order No. 245/2003-4 dated 13.11.2003 passed by the District Education Officer, Mainpuri. On the other hand, a promotion order No. 197/2003-4 dated 16.10.2003 was passed by the then District Basic Education Officer promoting 200 teachers illegally and the said order was cancelled by the Secretary, Basic Education Board, Allahabad by his order No. 13034 - 39/2003-2004 dated 27.12.2003. Incorrect facts had been mentioned in the counter affidavit and in the order dated 09.01.2005 earlier by the respondents. 15. It has also been mentioned that at the time when the petitioner was allegedly promoted on 30.10.2003 he had not completed five years' service as is required under Rule - 8 (3) (ii) of the U.P. Basic Education (Teachers) Service Rules, 1981. No Selection Committee as prescribed under Rule - 16 was constituted and therefore, the District Magistrate, Mainpuri directed the Basic Education Officer to cancel the promotion order and such cancellation order was passed by the District Basic Education Officer on 13.11.2003 and not by the Secretary, Basic Education Board on 27.12.2003. 16. The learned counsel for petitioner has argued that no opportunity of hearing was given at all at any stage before the cancellation of promotion by the District Basic Education Officer. He has referred to a judgment passed by a Coordinate Bench of this Court in Writ - A No. 56657 of 2003 (Anupam Kumar Dixit Vs. State of U.P. and others) wherein the challenge was to the order dated 13.11.2003 canceling the promotion order of the writ petitioner Anupam Kumar Dixit who was also promoted by the same order dated 30.10.2003 and his name finds place at serial No. 34 of the order. This Court after referring to the decision in State of Orissa Vs. Dr. (Miss) Binapanni Dei and others, (1967) AIR SC 1269 and Bhagwan Shukla Vs. This Court after referring to the decision in State of Orissa Vs. Dr. (Miss) Binapanni Dei and others, (1967) AIR SC 1269 and Bhagwan Shukla Vs. Union of India and others, (1994) AIR SC 2480 had set aside the order dated 13.11.2003 on the ground that it has been passed in violation of the principles of Natural Justice. 17. It has been submitted that the petitioner being similarly situated to Anupam Kumar Dixit is entitled to be granted parity as it has not been disputed by the respondents in the counter affidavit or in the affidavits filed later on that opportunity of hearing was ever granted at any stage to the petitioner. 18. It has also been submitted that the District Magistrate had no authority under the Service Rules on 1981 to issue any direction to the District Basic Education Officer to cancel the promotion order of the petitioner. 19. It has also been submitted that the initial order passed on his representation dated 09.01.2005 states that his promotion has been cancelled by the order dated 27.12.2003 and therefore, he had challenged the order dated 27.12.2003 passed by the Secretary, Basic Education Board as well as the order dated 09.01.2005 in the writ petition. Now, it has come out from the affidavits filed later on by the respondents No. 2 and 4 that, in fact, his promotion has been cancelled by the order dated 13.11.2003 passed by the District Basic Education Officer only and not by the respondent No. 2, the Secretary, Basic Education Board. 20. It has also been argued that since in the the order dated 30.10.2003 there was a specific mention of the District Promotion Committee being constituted and approving the promotion of the petitioner and 35 other teachers, it was not open for the respondents to cancel the promotion order without conducting any inquiry in the matter by simply saying that no Promotion Committee was ever constituted under the Rule - 16 of the Service Rules. 21. 21. The counsel for the respondents, on the other hand, has argued that since now it has come on record that the order of promotion has been cancelled on 13.11.2003 by the District Basic Education Officer and not on 27.12.2003 by the Secretary, Basic Education Board, the petitioner ought to have challenged the order dated 13.11.2003 and necessary amendment in this regard ought to have made in the prayer clause of the writ petition which he has not done so far. 22. It has also been argued that the District Magistrate is the Chairman of the District Promotion Committee and therefore, he is entitled to give direction to the Basic Education Officer to cancel the illegal order of promotion. Further argument by the learned counsel for respondents is that promotion under Rule - 18 could only have been made after constituting a District Level Selection Committee/Promotion Committee as mentioned in Rule - 16 and after preparing an eligibility list of all teachers teaching in all Primary Schools having requisite educational and training qualification and experience required for such promotion which was not done in the case of the petitioner. 23. Having considered the argument placed by the learned counsel for petitioner and having gone through the pleadings on record, I find that it is undisputed that the petitioner was appointed on 15.12.1999 and he could not have been promoted on 30.10.2003 as he had less than five years of service required for such promotion on the post of Assistant Teacher (Science) in Junior High School. It is also undisputed that no show cause notice was ever given to the petitioner. Now, this Court has to consider whether show cause notice was required to be given to the petitioner before cancellation of the promotion order as has been held by the Coordinate Bench of this Court in Writ - A No. 56657 of 2003: Anupam Kumar Dixit Vs. State of U.P. and others by its judgment and order dated 05.10.2018. 23. The Hon'ble Supreme Court in State of M.P. Vs. Shyama Pardhi, (1996) 7 SCC 118 has referred to the law as settled by the Hon'ble Supreme Court in the case of Shrawan Kumar Jhha Vs. State of U.P. and others by its judgment and order dated 05.10.2018. 23. The Hon'ble Supreme Court in State of M.P. Vs. Shyama Pardhi, (1996) 7 SCC 118 has referred to the law as settled by the Hon'ble Supreme Court in the case of Shrawan Kumar Jhha Vs. State of Bihar, (1991) AIR SC 309 and distinguished the same and held that where an order of appointment has been illegally passed and, admittedly, the appointee did not have the required qualifications, it would be a futile exercise for directing the authorities to issue a show cause notice. It has also been observed by the Hon'ble Supreme Court in Mohd. Sartaj Vs. State of U.P., (2006) 2 SCC 315 that where the order of cancellation has been passed within a short period of time of the order of such illegal appointment, then, no right accrues to the appointee. The Supreme Court in Mohd. Sartaj (supra) further in para - 18 observed that where admittedly the appointees did not possess the requisite qualification the principles of natural justice had no application. Paragraph - 18 of Mohd. Sartaj (supra) is being quoted herein below:- "In the case of Aligarh Muslim University vs. Mansoor Ali Khan, (2000) AIR SC 2783, this Court considered the question whether on the facts of the case the employee can invoke the principle of natural justice and whether it is a case where, even if notice has been given, result would not have been different and whether it could be said that no prejudice was caused to him, if on the admitted or proved facts grant of an opportunity would not have made any difference. The Court referred to the decisions rendered in M.C. Mehta vs. UOI (supra), the exceptions laid down in S.L. Kapoor's case (supra) and K.L. Tripathi vs. State Bank of India, (1984) AIR SC 273, where it has been laid down that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) has to be proved. The Court has also placed reliance in the matter of S.K. Sharma vs. State Bank of Patiala, (1996) 3 SCC 364 and Rajendra Singh vs. State of M.P., (1996) 5 SCC 450 where the principle has been laid down that there must have been some real prejudice to the complainant. There is no such thing as merely technical infringement of natural justice. There is no such thing as merely technical infringement of natural justice. The Court has approved this principle and examined the case of the employee in that light. In Viveka Nand Sethi vs. Chairman, J&K Bank Ltd. and Others, (2005) 5 SCC 337 , this Court has held that the principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. In another recent judgment in the case of State of U.P. vs. Neeraj Awasthi & Others, (2006) 1 JT 19 , while considering the argument that the principle of natural justice had been ignored before terminating the service of the employees and, therefore, the order terminating the service of the employees was bad in law, this Court has considered the principles of natural justice and the extent and the circumstances in which they are attracted. This Court has found in Neeraj Awasthi's case (supra) that if the services of the workmen are governed by the U.P. Industrial Disputes, they are protected under that law. Rules 42 and 43 of the U.P. Industrial Disputes Rules lay down that before effecting any retrenchment the employees concerned would be entitled to notice of one month or in lieu thereof pay for one month and 15 days wages for each completed year of service by way of compensation. If retrenchment is to be effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principles of natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached. Applying this principle, it could very well be seen that discontinuation of the service of the appellants in the present case was not as a punitive measure but they were discontinued for the reason that they were not qualified and did not possess the requisite qualifications for appointment." 24. Applying this principle, it could very well be seen that discontinuation of the service of the appellants in the present case was not as a punitive measure but they were discontinued for the reason that they were not qualified and did not possess the requisite qualifications for appointment." 24. In this case the promotion order was allegedly issued by the District Basic Education Officer on 30.10.2003 and the order canceling the promotion order was issued on 13.11.2003 i.e. within a fortnight. 25. This Court is aware of the judgment rendered by the Hon'ble Supreme Court in the case of S. L. Kapoor vs Jagmohan & Ors, (1981) AIR SC 136 and in the case of Aligarh Muslim University Vs. Mansoor ali Khan, (1999) 2 AWC 1546 where the Hon'ble Supreme Court has observed that the principles of natural justice are not straightjacket formula which have to be applied irrespective of the facts and circumstances of a case and exception has been carved out in cases where on admitted facts no other conclusion would be possible, and following the principles of natural justice would be an exercise in futility and a useless formality. 26. In the case of petitioner at the time of his promotion on 30.10.2003 he has not completed five years' service as is required under Rule - 8 (3) (ii) of the Service rules of 1981. There may be a dispute with regard to whether eligibility list was ever prepared in accordance with seniority of teachers possessing the similar qualifications and experience. But, there is no dispute that the petitioner did not possess the required experience of five years' service as under the Rules. 27. However, since the petitioner has continued on the basis of an interim order passed by this Court on 18.05.2009 as Assistant Teacher (Science) in Purwa Madhyamik Vidyalaya Garhia, Mainpuri, this Court is not dismissing the writ petition but is disposing off the same with a direction to the respondent No. 4 to reconsider the case of petitioner and pass appropriate orders of promotion of the petitioner with effect from the date the Assistant Teachers identically situated as the petitioner were promoted as Assistant Teachers in Junior High Schools run by the Basic Education Parishad. His case shall be placed before the Selection Committee constituted under Rule - 16 and appropriate orders be passed by the Selection Committee and the order dated 13.11.2003 passed by the Basic Education Officer cancelling the promotion of the petitioner shall not come in his way and he shall be granted promotion with effect from the date the teachers identically situated to the petitioner have been promoted in the district concerned. 28. The entire exercise shall be conducted and completed by the respondent No. 4 and appropriate orders be passed within a period of four months from the date a certified copy of this order is produced before the authority concerned. 29. The counsel for the petitioner says that the order dated 13.11.2003 is not in existence as it had already been set aside by this Court in the case of Anupam Kumar Dixit (supra). However, from the judgment and order dated 05.10.2018, this Court finds that the impugned order dated 13.11.2003 was set aside by this Court only in so far as it related to the writ petitioner therein.